Court refuses to certify class action regarding e-tickets for airfare
In Simsek v. United Airlines, Inc., the British Columbia Court of Appeal heard an appeal from a decision by a Chambers judge refusing to certify a class action alleging that the defendant airlines (United, British Airways, Delta, Lufthansa and Air Canada) had been unjustly enriched. The dispute centred around the airlines’ entitlement to include fuel surcharges in ticket prices (“purportedly to deal with the volatility of fuel prices” as Justice Groberman, writing on behalf of a unanimous panel, wryly observed). On electronic tickets which were sold directly to consumers by airlines, the fuel charges were broken out as a specific line item in the list of charges which made up the overall price of the ticket. While this information was provided to travel agents by the airlines, however, some travel agents did not pass it on to people who purchased air tickets from them; rather, these travel agents provided e-tickets in which the fuel surcharges were characterized as being part of “taxes and fees.” This practice arose from an uneven transition between different computerized coding techniques used by the air industry.
The representative plaintiffs had each bought tickets of this sort from travel agents. They claimed that identifying the fuel surcharges as “taxes and fees” when they were, in fact, simply extra charges imposed by the airlines, was a deceptive practice and breached the Business Practices and Consumer Protection Act. Alternatively, they claimed that the airlines were being unjustly enriched:
The plaintiffs’ claims in unjust enrichment are based on the proposition that the ticket receipts that they received from their travel agents constituted an essential part of their contract with the airline. They say that the airline was entitled, under that contract, to keep amounts shown as airline charges, but had no entitlement to retain either taxes or third party fees. In retaining amounts shown as “taxes” or “taxes and fees”, the airlines have been unjustly enriched. The passengers, they argue, are entitled to reimbursement for such amounts.
The Chambers judge dismissed the motion for certification of the claim on both grounds, and on appeal the plaintiffs abandoned the claim based on statutory breach and proceeded solely on the unjust enrichment claim.
The Court of Appeal determined that the unjust enrichment claim could not be certified for two reasons. First, the claims were not pleaded with sufficient particularity. While it appeared that the plaintiffs were relying on their travel agent receipts as constituting the contract, the evidence indicated that the airlines incorporated conditions of carriage into their agreements with passengers and it was not clear that the receipts—which did not necessarily contain the conditions of carriage—were actually contractual documents. Moreover, while the receipts could be said to mislabel the fuel surcharges as “taxes and fees” it was not clear that this was the actual contractual understanding, given that the airline coding on the tickets did separate them out. More elaboration of the pleadings would be necessary for the cause of action to be made out.
Second, Justice Groberman held that the issue of whether the airlines had actually engaged in the kind of airfare pricing alleged, which was the linchpin of the claim, was not a sufficient “common issue” to sustain certification. The means and ways by which the plaintiffs purchased their tickets varied a great deal, as did the details of the ticket receipts which were supplied to them by the travel agents or bulk ticket sellers through which they purchased the tickets. It was not clear that any of these companies could have been said individually to act as an agent of the airlines. The evidence before the court would not even sustain a narrowing of the claims in order to craft a sufficiently definable common issue. In the result, the appeal was dismissed.