Québec – Merchants reselling tickets not bound by arbitration agreement – #590

In Abihsira v. Ticketmaster Canada, 2022 QCCS 164, Justice Gagnon granted authorization to institute a class action against Ticketmaster Canada (“Ticketmaster”) on behalf of consumers and non-consumers, despite an arbitration agreement between the parties. Relying on public order provisions that extend the benefits of the Consumer Protection Act, CQLR c P-40.1 (“CPA”) to merchants selling or re-selling tickets, he found that the jurisdiction of the Superior Court could not be ousted by the arbitration agreement.

The class-action pertained to the price of resale of event tickets purchased on Ticketmaster’s website or mobile application, which was higher than that announced on the primary market, in a manner which contravenes the provisions of the CPA. The representative plaintiff, Steve Abihsira, purchased online a pair of tickets for a Stanley Cup semi-final game at the Bell Centre between the Montreal Canadiens and the Las Vegas Golden Knights. He paid a total of $1,675.80 for tickets priced at $350 each on the primary market. He alleged that he was only informed of the original ticket price at the very end of the online purchase process, just before payment. Prior to that, Ticketmaster indicated an individual resale price of $650. Ticketmaster’s Terms of Use contained an arbitration agreement that imposed binding arbitration upon the purchaser of “[a]ny dispute or claim relating in any way to your use of the Site, or to products or services sold or distributed by us or through us”, the main exception being for small claims.

The representative plaintiff alleged false or misleading representations made in violation of the CPA and in breach of s. 236.1 CPA, which provides that no merchant may sell a ticket at a price above that announced on the primary market, except a) if authorized by the event producer and in compliance with their agreement and b) if the purchaser is clearly informed of a number of facts before the transaction. The representative plaintiff stated that he intended to act on behalf of a class composed of both consumers and merchants based on s 2.2 CPA, which extends the application of some of its provisions to merchants with respect to contracts for the resale of tickets.

Ticketmaster opposed the granting of an authorization to institute the class action on several grounds and argued, in the alternative, subsidiarily that if the authorization was granted, the class on whose behalf the action is taken should exclude merchants that are not natural persons. It argued that since the CPA applies to contracts entered into between a consumer and merchant in the course of its business, as per s. 2 CPA, and since the term “consumer” only includes natural persons (s. 1 e) CPA), members of the plaintiff class can only include natural persons. That is, Ticketmaster suggested that the term “merchant” in s 2.2 CPA should be interpreted to only include merchants that are natural persons, considering s. 1 e) CPA. On that basis, merchants that are not natural persons should not benefit from the protection of the CPA and should be excluded from the authorized class and, in any event, their claim should be submitted to arbitration pursuant to the terms of the arbitration agreement.

At par. 119, Justice Gagnon concluded that the prohibition against consumers residing in Québec waiving jurisdiction of the Québec courts based on a consumer contract extended to all merchants – whether natural persons or not – in the context of the authorization sought. Therefore, as an effect of s 2.2 CPA and article 3149 of the Civil Code of Québec, CQLR c CCQ-1991 (“CCQ”), the waiver of court jurisdiction may not be set up against any Québec residing consumer. Justice Gagnon went further at par. 120, stating that article 3149 CCQ could also not be interpreted in such a way as to deprive a non-resident to seek redress in Québec for an event ticket resale that took place therein.

Contributor’s Notes

The case highlights a significant exception to party autonomy that distinguishes Québec from other Canadian jurisdictions. Readers from such jurisdictions might be surprised not to see the Court consider the Supreme Court decision in TELUS Communications Inc. v. Wellman, 2019 SCC 19 in the present case when addressing the composition of the authorized class. For a discussion of that case, see Supreme Court – cumbersome task of sorting of consumer/non-consumer claimants does not authorize courts to re-cast arbitral legislation – #185.

This peculiarity follows from the Québec legislator’s intent to extend to merchants the application of the protection afforded to consumers regarding ticket resale by way of a 2018 amendment to the CPA. Manifestly, the drafters paid heed to the especially “cumbersome task of sorting out” consumers from non-consumers for such contracts. Indeed, by definition, a consumer who initially purchased a ticket for their personal purposes may very well end up intending to resell it due to unforeseen circumstances (as noted by Justice Gagnon at par. 7), and not because the consumer is making a business out of such an activity, which would deprive it of the protection of the CPA.