Ontario Court Of Appeal Inspiring Consumer Misrepresentation Class Actions

The Ontario Court of Appeal is once again making headlines with the case of Ramdath v George Brown College, which has turned out to be a doubly significant case at the intersection of class actions and consumer protection legislation.

The case first captured attention in 2013 when the Ontario Court of Appeal confirmed that students are "consumers" and education a "consumer product", and that consumers do not need to prove reliance on a false, misleading or deceptive representation to establish an unfair practice and a right to a remedy. Now in its most recent decision, the Court went further still—confirming the Consumer Protection Act1 does not require any reliance on or even knowledge of the unfair practice and also that corrections of an unfair practice will be too late and of no effect if done after a consumer makes an agreement to purchase.

In addition, this was the first award of aggregate damages at trial under s. 24 of the Class Proceedings Act2 in an Ontario class action, including to a class with a consumer protection claim, and the Court of Appeal upheld that award. The Court helpfully clarified that, in a claim for unfair business practice, individual proof of reliance is not required to quantify and award damages and the amount of damages is not required to be determined on an individual basis.

The overall result is an expansion of the application of consumer protection legislation and a lowering of the bar for recovery for unfair business practices and misrepresentation class actions. This decision has some potential to inspire other consumer protection class actions. The Court itself expressly found that the lack of need to prove reliance or inducement in claims under the Consumer Protection Act facilitates the use of that act as a basis for class actions.

As a result of Ramdath, all those who make or provide consumer products or services, including educational providers and institutions, should be aware of this decision and ought to be thoughtful and careful in all of their communications and in the information they distribute about their products or services.

Background and Decision Below

Feldman JA, for the Court, summarized succinctly the relevant background and decision below (at paras 2-3). As he explained, the plaintiffs/appellants were students (mostly foreign students) who enrolled in a post-graduate program in International Business Management at George Brown College ("GBC") in 2007 and 2008. They claimed that GBC's...