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Each unhappy vacation traveler is unhappy in his own way
Published in the April 2010 issue of Transportation Notes - View Article
The plaintiffs brought a certification motion to certify a class action against the defendants. The plaintiffs had purchased vacations for certain resorts in Holguin, Cuba from the defendant tour operators and alleged that their vacations were ruined by water shortages at these resorts. The plaintiffs claimed that the defendants had misrepresented the conditions at the resorts to them and also claimed the defendants had breached the terms of their contracts of sale.
The Court found that the class action had been properly commenced. In Saskatchewan, not all potential class members must be residents of Saskatchewan, and there need not be a connection between the representative plaintiff and all defendants.
The plaintiffs claimed against the defendants first in negligence, alleging misrepresentation regarding the lack of water at the Holguin Resorts.
The Court found that the plaintiffs had not pleaded that they would not have traveled to the Holguin Resorts had they known about the water shortages – presumably then the plaintiffs would have traveled even if warned of the water shortages. Therefore they did not rely on the tour operators’ omission regarding the lack of water to their detriment in making their choice to travel. This lack of an essential element of negligence, detrimental reliance, led the Court to find that there was no cause of action in negligence against the tour operators.
The plaintiffs also claimed that the defendants were in breach of various “consumer protection and unfair trade practices legislation” as well as “regulations governing the travel industry”. They did not, however, specify the legislation and regulations they claimed had been breached, and did not plead facts to support these alleged breaches. Accordingly, the Court found that this claim failed to disclose a cause of action.
The Court then analysed whether the plaintiffs had met the test to certify a class action under s. 6 (1) of the Saskatchewan Class Actions Act, in the context of their breach of contract claim. The test requires that the claim meet the following requirements:
(a) the pleadings disclose a cause of action;
(b) there is an identifiable class;
(c) the claims of the class raise common issues;
(d) a class action would be the preferable procedure for the resolution of the common issues; and
(e) there is a person who is willing to be appointed as a representative plaintiff who:(i) would fairly represent the interests of the class;
(ii) has produced a workable plan for the class action;
(iii) does not have an interest that conflicts with those of the other class members.
The Court first examined the proposed class. The defendants argued that although the plaintiffs had named six resorts as being affected by the water shortages over a three month period, they had only produced evidence of water problems at one or two resorts over a six day period. The Court excluded statements from unnamed tour operator representatives and internet travel forums from the plaintiffs’ evidence, finding that these were hearsay statements and were thus inadmissible. The Court adopted the comments made in another “bad holiday certification motion”:
[The plaintiff] deposes in her affidavit that about one week before the trip . . . she learned from the tripadvisor.com website that there was an unidentified illness at the Riu Resorts. This vague information, which is exponential hearsay, cannot be accepted as evidence of the situation at the resorts. [emphasis added in Alves].
[Lavier v. MyTravel Canada Holidays Inc., [2008] O.J. No. 2753 at para. 44 (S.C.J.).]
The Court was also concerned that, even if the class had been narrowed to the one or two resorts where there was evidence of water shortages over a six day period, the plaintiffs still had not established that the common issue would overcome individual issues. The Court was concerned that “unhappy vacation travelers” would have different bookings, different reactions to the water shortages, and that individual analyses of the circumstances of each traveler would be needed. The Court concluded that the plaintiffs had not established an identifiable class.
The Court also found that the plaintiffs had not put forward any common issues and relied on language from another “bad vacation” certification motion regarding this requirement:
For all the reasons that it would be impossible to identify an identifiable class, it would be unrealistic and almost impossible to find that there were common issues as between all of the passengers and all of the defendants. There are numerous scenarios that would arise depending upon the unique and specific circumstances of each passenger.
It is impossible at this stage to state with any certainty the different situations of the passengers other than to say that there are many different situations and thus there is less likelihood that there are any common issues that can be applied straight across the board.
[Walton v. MyTravel Canada Holdings Inc., [2006] SKQB 231 at paras. 69 and 70.]
As the Court had found that there were no common issues, it had to conclude that a class action was not the preferable procedure in this situation. It stated that because the plaintiffs would need to establish their claims against the defendants individually, a class action would be unmanageable and certification would result in individual trials and likely third party claims against numerous travel agencies. Thus, the determination of common issues in this case would mark the beginning, not the end, of the liability inquiry.
The Court concluded that judicial economy would be better served by many small claims Court actions than by trying to advance these claims together in a class proceeding. The Court noted that the plaintiffs had not provided any evidence that the potential class members would find it prohibitively costly to proceed by way of a small claims court action, especially as the jurisdiction of the court now allowed claims of up to $20,000.
Lastly, in considering the proposed representative plaintiff, the Court would have allowed her to be appointed.
The Court concluded that even though the plaintiffs had met the cause of action requirement in contract, the lack of an identifiable class and any common issues required that certification be denied and dismissed the motion. In accordance with the Class Actions Act, no costs were awarded.
Alves v. First Choice Canada Inc.
(2010 SKQB 104)