Ontario Court Denies Certification of Common Issues Due to Disconnect Between Alleged Misrepresentations and Alleged Losses

Despite certifying the class action in Thompson-Marcial v Ticketmaster Canada LP on the basis of breach of contract, breach of legislation, conspiracy, negligence and unjust enrichment, the Ontario Superior Court declined to certify certain proposed common issues that were based on alleged misrepresentations by the defendant. The action was brought on behalf of purchasers of live performance event tickets in Canada, initially purchased through Ticketmaster and subsequently resold through Ticketmaster or one of its affiliates. The plaintiffs alleged losses associated with the difference in price of tickets subsequently purchased, plus allegedly superfluous fees.  

Based on its analysis of the pleadings, the Court declined to certify the proposed common issues based on alleged misrepresentations by Ticketmaster that it would provide a fair market and enforce ticket limits because there was no connection between the alleged misrepresentations and the losses claimed. As the Court concluded, even though a weak causal connection between losses and misrepresentations may sustain a cause of action, a total disconnect, as in this case, will render a corresponding claim unviable.

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• The Ticketmaster analysis of causation was confined to the pleadings, but causation considerations may also undermine certification at the evidentiary analysis of the common issues criterion of the certification test. 
• The Court certified the class action alleging claims in breach of contract, breach of ticketing legislation, unlawful means conspiracy, negligence and unjust enrichment. Limiting the causes of action in a class action is consistent with the certification court’s gatekeeping function. The Ticketmaster Court, however, held that the gatekeeping function does not permit the court to dispose of redundant causes of action. 
• Ticketmaster is an Ontario action proceeding alongside parallel proceedings in British Columbia and Saskatchewan. Another parallel action in Québec has been stayed in favour of the Saskatchewan action.