June 05, 2014 - 12:37 PM
KELOWNA – An Vernon man claiming thousands of dollars in damages as a result of a consumer loyalty program that cancelled his points, will have to wait for another lawsuit to be settled before his case can be heard.
John David Romanchuk alleges Aeroplan, a program where members accumulate points for making purchases, unilaterally cancelled 154,000 points he accumulated in 2011.
He is seeking $11,550 in damages.
Aeroplan is currently involved in another class action suit in Quebec, where tens of thousands of Aeroplan members have been granted a national class action by a Quebec Superior Court.
According to a Reason for Judgement published by Judge Mayland McKimm, Romanchuk was granted the right to proceed apart from the national suit.
“(Romanchuk) proceeded through this motion without representation and the Court was impressed with his ability to present his case and argue the complex issues involved in this application,” McKimm says. “There is little doubt that he is more than capable of pressing his demands before the Court without the assistance of high powered and expensive counsel that he has never met and who has made little serious effort to develop a professional relationship with him.”
Counsel for Aeroplan argued that Romanchuk did not opt out of the national suit and is therefore included by default. McKimm however, was not convinced Aeroplan effectively notified Romanchuk and is therefore able to file an individual suit.
“The provision of notice by means of the hyperlink was of almost no value and not consistent with the spirit of the Order or the intent of law that notice ought to be given in a meaningful way,” McKimm writes. “The Hyperlink in the April newsletter simply says, “Class action against Aeroplan certified.” This message is in small font on the third page of the Newsletter following two pages of bold and engaging advertisements. There is no suggestion that the members ought to pay attention to the notice nor that indeed their failure to respond to the contents of the notice would require them to be part of a litigation over which they were probably going to have little or no control.
"Indeed the style and position of the message appears to be designed to dissuade potential members from viewing the hyperlink rather than notifying them of the important issues contained in the notice. In the newspaper advertisement it is made abundantly clear that failure to reply will mean that the parties are bound to be parties to the litigation unless they specifically opt out of the litigation by a date certain. The hyperlink could have easily made it clear that failure to review the terms of the notice would lead to their inclusion in the action.”
In response to the finding, Aeroplan has requested that the action be stayed pending resolution of the Quebec suit.
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