Class actions: Participation of the defendants in the notice to class members

In Union des consommateurs c. Air Canada, 2015 QCCS 753, the Superior Court was seized with the issue of defining the contents of the notice to class members and its publicization, after a class action had been authorized (airfare fees not included in the price listed on the transporter's internet site). The plaintiff had formulated many claims seeking to force the participation of the defendant to allow for a better organization of the class action. The decision contains interesting excerpts regarding the use of the defendant's logo, the transmission of the notice via email, the costs of translation of the notice and the obligation to conserve/communicate information regarding the members of the group.

 

The Court first states that Union des consommateurs should not use the defendant's logo in the notice to members and that it is not necessary to write its name in capital letters [paras. 9-15].

 

The Court grants plaintiff's request to have the defendant transmit the notice to its clients via email [paras. 16-27]:

"[24] If Air Canada forwards the purchased ticket via email, it is plausible that information going back to the period between 2010 and 2012 is still accessible to Air Canada.

[25] The notice to class members often constitutes the only means of communicating the information regarding the action instituted on their behalf, which are crucial to preserve individual rights. At the authorization stage, this information will first and foremost allow the individuals who which to exclude themselves from the group to do so.

[26] The publication of notices in newspapers is good. But is there really a more efficient way to communicate the information than an email adressed by Air Canada to the people who purchased a ticket during the limited period of the class action as authorized? The Court does not think so.

[27] Hence, the Court will allow this mode of publicization proposed by the Union des consommateurs."

[OUR TRANSLATION.]

The Court concludes, however, that the plaintiff must support the costs of translation of the notice, as these will be part of the judicial fees which will be granted upon final adjudication of the class action[paras. 28-33].

 

Lastly, the Court accepts plaintiff's request to order that the defendant conserve the relevant data allowing for identification of class members, but does not accept that this information should be communicated to the plaintiff at this stage, as Union des consommateurs had requested [paras. 43-41].

"[40][...] The class action was just authorized by the Court of Appeal, the notice to class members have not been published and the members who wish to exclude themselves have not had a chance to do so. In light of this, Union des consommateurs' request to communicate this data to the group's attorneys seems premature, since the individuals who do not want to be represented by them have not had the opportunity to express this position by excluding themselves."

[OUR TRANSLATION.]