Court dismisses WestJet's appeal on baggage-fees class action

Class-action lawsuit alleges WestJet posted two prices for baggage fees, and charged the higher amount

A WestJet plane readies to load passengers on a tarmac | WestJet

The BC Court of Appeal on January 21 dismissed WestJet Airlines Ltd. and WestJet Encore Ltd.'s appeal of a B.C. Supreme Court decision to certify a class-action lawsuit against the airlines as it relates to Canada's Competition Act.

Plaintiffs in the class action that BC Supreme Court certified in January 2021 allege that WestJet, between September 2014 and March 2019, published two prices for the cost of checking baggage, and then charged the higher of those two prices. 

WestJet did not challenge the class certification in general, but rather only as it related to the Competition Act, the BC Court of Appeal judgment said.

The crux of the plaintiffs' complaint is that WestJet violated the Competition Act by saying in one part of the company's fee documentation that passengers could check one piece of luggage without charge for the flight that the passenger was flying on. In a separate table of fees, WestJet said it would charge fees for "first, second, third or fourth pieces of checked baggage." Those fees were usually $25.

"Double ticketing occurs when a seller expresses to a customer two different prices for a product or service and then charges them the higher of those two prices," BC Court of Appeal Justice Robert Bauman wrote in his judgment. 

"To make out the double-ticketing offence, the expression of those prices is required to take place at the time of supply and via one of three modes of expression listed in the statute. WestJet says that the pleadings fail to allege facts that could make out the elements of that offence. Even if a cause of action is adequately pleaded, WestJet says the factual determinations could vary from case to case, differing between airports and over time. WestJet says that these individualized determinations preclude the finding that there are any issues in common on the Competition Act claim or that a class proceeding is the preferable procedure for resolving them."

Bauman then wrote that he disagreed with WestJet's assertions and that its appeal was dismissed.

"The plaintiff’s pleadings are not bound to fail," he wrote."The meaning of the double-ticketing offence has not been substantively developed and it is not plain and obvious that the manner of expression of the two prices pleaded by the plaintiff falls outside the scope of [the Competition Act.]"

He added that there is "sufficient basis" that Competition Act issues can be decided on a class-wide basis.

Justices Peter Willcock and Peter Voith agreed. 

gkorstrom@biv.com

@GlenKorstrom