Munson v. Leon’s Furniture Limited

2025 BCSC 2239 Munson v. Leon's Furniture Limited

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Munson v. Leon's Furniture Limited, 2025 BCSC 2239 Date: 20251113 Docket: S248587 Registry: Vancouver Between: Alisha Munson Plaintiff And Leon's Furniture Limited Defendant Before: The Honourable Justice Veenstra Reasons for Judgment on Sequencing Counsel for the Plaintiff: S.J. Jaworski J. Giovannetti Counsel for the Defendant: J.S. Yates N. Iatrou E.C. Walsh Place and Date of Hearing: Vancouver, B.C. October 28, 2025 Place and Date of Judgment: Vancouver, B.C. November 13, 2025 Table of Contents Introduction.. 3 The Action.. 3 Progress of the Action to Date. 6 The Certification Application.. 7 The Summary Judgment Application.. 7 Legal Context. 10 Principles Governing Sequencing Applications. 10 Principles Governing Summary Judgment Motions. 15 Competition Act Provisions. 17 Positions of the Parties. 22 The Defendant 22 The Plaintiff 24 Analysis. 25 Conclusion.. 27 Introduction [1] This is a sequencing application within a proceeding brought pursuant to the Class Proceedings Act, R.S.B.C. 1996, c. 50 [CPA], by which the defendant seeks to have its summary judgment application brought pursuant to Rule 9-6 of the Supreme Court Civil Rules heard separately and in advance of the plaintiff's application for certification. The Action [2] On December 11, 2024, the plaintiff filed a notice of civil claim (the "NOCC"). The claim is

advanced pursuant to the CPA; its nature is summarized in the first paragraph of the NOCC: 1. Online homeware retailer Leon's uses purported discounts to entice Canadians to purchaser furniture, appliances, electronics, and other homeware products by misrepresenting the undiscounted prices and value of these products. Leon's represents that its Homeware Products are usually offered for sale at a listed price and are being offered at a steep discount, often for a limited time. The truth is that Leon's rarely, if ever, offer to sell its Homeware Products at that undiscounted price. Instead, they always - or almost always - offer and sell their Homeware Products at the so-called discount price. Consumers are deceived into believing that the product they purchased is ordinarily offered at a higher price and has more value than it actually does. [3] The claim is further detailed at paras. 6-11 and 23-25 of Part 1 of the NOCC: 6. Leon's offers a variety of furniture, appliances, electronics, and other homeware products on its websites. Products offered for sale on https://www.leons.ca/ and https://www.furniture.ca/ are the "Homeware Products".

7. Leon's represents a Discount Price and a Regular Price Homeware Products offered for sale on its websites.

8. The "Discount Price" is the price at which Leon's offers the Homeware Products for sale to customers.

9. The "Regular Price" is the alleged undiscounted market price at which Leon's claims the Homeware Products are ordinarily offered for sale. The Regular Price always exceeds the Discount Price. To indicate that the Homeware Products are not being offered at the Regular Price, the Regular Price is struck through with a line in sales representation.

10. The Regular Price is equivalent to the "Ordinary Selling Price'' (also known as the "OSP"), a term employed by Canada's Competition Bureau to denote the price·at which products are regularly sold and/or offered for sale.

11. The "Discount Value" is the amount by which the Regular Price exceeds the Discount Price. The Discount Value is the amount that Leon's represents customers will save by purchasing one of the Homeware Products at the Discount Price compared to purchasing one of the Homeware Products at the Regular Price.

23. The Regular Price is a false and misleading representation of the price at which the Homeware Products are regularly offered for sale. As a result, the Discount Value represented to customers purchasing the Homeware Products at the Discount Price is illusory.

24. At material times, the Homeware Products were offered for sale at the Regular Price far less than 50% of the time. Because the Homeware Products are offered for sale at the Regular Price so infrequently, the significant majority of sales volume is at the Discount Price.

25. Accordingly, the Regular Price is a misleading and deceptive representation of the price that Leon's ordinarily charges for the Homeware Products. [4] The NOCC includes, at paras. 13-22, detailed information on two different products: an Anthena Polyester Sofa in charcoal and a Langsdale Glider Recliner in mocha, that were alleged to have been advertised on the Leon's websites. These are in addition to the Turner Lift-Top Coffee table purchased by the plaintiff, Ms. Munson. [5] The intended class is summarized at para. 4; its definition includes the following: all individual and legal persons in Canada who purchased one or more products through [the two websites] at a Discount Price [6] The relief sought in Part 2 of the NOCC includes at para. 49 the following relief with respect to the Competition Act, R.S.C. 1985, c. C-34 [Competition Act]: a) a declaration that Leon's has engaged in conduct contrary to Part VI of the Competition Act; c) damages pursuant to section 36 of the Competition Act; d) costs of investigation and prosecution of this proceeding pursuant to section 36 of the Competition Act; [7] In addition, the NOCC seeks relief pursuant to s. 174 of the Business Practices and Consumer Protection Act, S.B.C. 2004, c. 2, and comparable consumer protection legislation in other provinces (given that what is sought to be certified is a national class). [8] In Part 3: Legal Basis, the NOCC asserts that: 52. Leon's has breached section 52 of the Competition Act, as amended from time to time. The Homeware Products are each a "product" within the meaning of sections 2 and 52 of the Competition Act.

53. Leon's representations as to the Discount Price, the Regular Price, and/or the Discount Value of the Homeware Products when Leon's knew or was. reckless or willfully blind to the fact that the Homeware Products. were rarely, if ever, offered at a price equaling the Regular Price is in breach of section 52(1) of the Competition Act. In particular, Leon's breached section 52(1) of the Competition Act by representing that: a) the Homeware Products were worth an amount equal or approximate to the Regular Price when the Homeware Products were worth less than the Regular Price; b) the Homeware Products were ordinarily offered for sale at a price equal or approximate to the Regular Price when these products were rarely, if ever, offered for sale at a price equal or approximate to the Regular Price; and/or c) the Plaintiff and Class Members would acquire a benefit (equal to the Discount Value) by purchasing the Homeware Products at the Discount Price when the benefit obtained by purchasing these products at the Discount Price was less than the Discount Value.

54. This conduct was done for the purpose of promoting, directly or indirectly, the supply or use of the Homeware Products and/or for the purpose of promoting, directly or indirectly, Leon's business interests in attracting customers to purchase the Homeware Products from them.

56. As a result of Leon's breaches of section 52 of the Competition Act, the Plaintiff and Class Members acquired a product, namely the Homeware Products, which had less value than the Plaintiff and Class Members expected. Further or in the alternative, as a result of Leon's breaches of section 52 of the Competition Act, the Plaintiff and Class Members paid a greater price for the Homeware Products than they would have paid had Leon's not misrepresented the Discount Price, the Regular Price, and/or the Discount Value of the Homeware Products. [9] The balance of Part 3 deals with the legal basis for claims advanced with respect to the various provincial consumer protection legislation, as well as claims in unjust enrichment and for punitive damages. [10] It became apparent during submissions on this application that the parties had a different understanding of the scope of the intended action. The defendant's application is premised in significant part on the plaintiff's claims being limited to the three specific products identified at paras. 3 and 13-22 of the NOCC, notwithstanding the broad definitions of both the term "Homeware Product" and the intended class. The plaintiff, on the other hand, has premised the certification application on a broad meaning of Homeware Product, notwithstanding the lack of any express designation of the three specific products as simply examples

of types of Homeware Product. [11] This difference is something that only became apparent during submissions in respect of sequencing. I have not had full submissions on it, and do not propose to make any determination with respect thereto at this point. Progress of the Action to Date [12] The NOCC was served on the defendant on December 13, 2024. On March 13, 2024, defence counsel advised that they had been retained. A response to civil claim was filed on May 15, 2025, denying all the allegations in the NOCC. On June 2, 2025, the parties attended a case management conference seeking judicial case management. I was subsequently appointed as judicial management judge. [13] At a case planning conference on September 15, 2025, counsel advised that there would need to be a sequencing application given that the defendant intended to bring a summary judgment application and counsel were unable to agree as to whether that should be heard in advance of or at the same time as the certification hearing. It was agreed that the parties would make submissions as to sequencing on October 28, 2025. [14] In the week prior to October 28, 2025, each party delivered an unfiled notice of application. The plaintiff's application (the "Plaintiff's NOA") is for certification, and was provided with supporting affidavits. The defendant's application (the "Defendant's NOA") is for dismissal of the

action pursuant to Rule 9-6. It is supported by an affidavit that includes information with respect to sales of the three specific items referred to in the NOCC. The Certification Application [15] The Plaintiff's NOA seeks certification of the action as a class proceeding, puts forward a class definition identical to that appearing in the NOCC, and advances claims generally with respect to "Homeware Products" using the same broad definition from the NOCC. [16] The plaintiff relies on Sun v. Bloomex, Inc., 2025 FC 1239, for the constituent elements of a claim under s. 52 of the Competition Act. In that case, Chief Justice Crampton refused to strike out the various claims advanced, including a claim that s. 52 was contravened by Bloomex representing that floral products were being offered at a discount while knowing that they were rarely, if ever, offered at the higher (struck-through) prices represented on the website. [17] The certification application is supported by an affidavit of a researcher affiliated with the plaintiff's counsel law firm, who deposed to having tracked the prices of five products over a long period of time during which most of them were offered for sale at the full "strikethrough" price less than 50% of the time. The five items do not include the three items referenced in the NOCC. For four of the five items, the tracking period was from December 4, 2024

to October 23, 2025 - a period of over 10 months. [18] The certification application is also supported by an affidavit of the plaintiff and by an affidavit of an expert witness dealing with "method(s) to assess and quantify" the alleged losses of class members. The Summary Judgment Application [19] The summary judgment application is summarized at paras. 2-3 of Part 2 of the Defendant's NOA: 2. The Claim is fundamentally flawed in two ways, the first factual, the second, legal. First, the plaintiff alleges that three Leon's products violated the Competition Act's ordinary price prohibitions, but the incontrovertible facts are that none of these products actually violated those provisions, including the one the plaintiff herself purchased.

3. Second, the Claim is an attempt to bypass the prohibition in the Competition Act on seeking damages for ordinary price claims. Ordinary price claims fall under the "reviewable practices" part of the Competition Act; although private parties may seek leave of the Competition Tribunal to bring such a case, there is no civil cause of action for damages available before the Superior Courts. The Claim is fundamentally legally flawed and should be dismissed for want of jurisdiction. [20] I will first set out the legal issue identified in the Defendant's NOA. The Defendant's NOA asserts at para. 13 of Part 2 that: 13. Ordinary Price claims are governed by section 74.01(2) and (3) of the Competition Act. The Competition Act states that businesses that offer products or services for sale must validate the sale price by either offering (i) a substantial volume of the product at the Ordinary Price for a reasonable period of time before and after the Sale Price, or (ii) offering the product at the Ordinary Price for a substantial period of time before or after the Sale Price. [21] This assertion is developed in Part 3: Legal Basis, at paras. 29-41. In summary, the argument set out in those paragraphs is that the plaintiff's claims are "entirely premised on the Competition Act's ordinary sales price rules, which are set out in sections 74.01(2) and (3)", and that such claims "fall under

a part of the Competition Act over which private parties cannot bring claims in Superior Court." The Legal Basis references a 2005 decision of the Competition Tribunal (Commissioner of Competition v. Sears Canada Inc., 2005 CACT 2) which is said to contain a historical summary of the development of the deceptive marketing / misleading advertising provisions of the Competition Act, including a 1996 Report of the Consultative Panel on Amendments to the Competition Act. It asserts that at present: the Competition Act contains two tracks for deceptive marketing / misleading advertising: (i) the criminal track, encapsulated by the provisions at s. 52 and (ii) the civil/reviewable matters track, encapsulated by s. 74. [22] Thus, it is said, claims for losses under s. 36 of the Competition Act - which, as noted above, is the specific provision cited in the NOCC - are only available for violations of the criminal provisions of the Act. Section 36 is said to be limited to claims for conduct that is prohibited in Part VI of the Competition Act, while ordinary price claims are prohibited by Part VII.1. [23] Finally, the defendant relies on s. 103.1 of the Competition Act, asserting in the Defendant's NOA that: thanks to further amendments that were recently passed, private individuals are able to seek remedies for s. 74 violations, including for violations of the Ordinary Price rules.

However, they must do so before the Competition Tribunal, and only with leave of the Tribunal where the Tribunal finds that it is in the public interest to hear that private individual's case. [24] Section 103.1 is said to restrict parties claiming violations of the Ordinary Price rules to bringing such claims before the Competition Tribunal itself, and only after first obtaining leave of the Competition Tribunal. The defendant asserts at para. 40 of the Defendant's NOA that: 40. Allowing an Ordinary Price case to proceed as a class action in the face of the legislative history and legislative scheme would undermine and run contrary to Parliament's intentions, first in housing Ordinary Price prohibitions in the civil/reviewable matters track of the Competition Act, and second in legislating that private individuals may only bring Ordinary Price claims where the Competition Tribunal is of the view that it is in the public interest to allow such a case to be brought. [25] I turn to the factual issue identified in the Defendant's NOA. The defendant has produced its own data with respect to the specific items identified in the NOCC, and says that in the six months prior to the NOCC being filed: a) The defendant offered the Turner Lift-Top Coffee Table for sale at its ordinary price for 158 and at its sale price for 35 days; b) The defendant offered the Anthena Polyester Sofa for

sale at its ordinary price for 138 days and at its sale price for 56 days; and c) The defendant offered the Langsdale Glider Recliner for sale at its ordinary price for 131 days and at its sale price for 63 days. [26] The defendant says that the six-month period prior to the filing of the claim is the time period that must be considered. This is because the Competition Bureau published a 2009 document titled Enforcement Guidelines - Ordinary Price Claims - Subsections 74.01(2) and 74.01(3) of the Competition Act (the "Enforcement Guidelines"). Section 4 of that document provides "Guidelines Regarding Ordinary Price Claims". At section 4.2.2, it provides: (a) The substantial period of time requirements will be met if the product is offered at or above the reference price for more than 50% of the time period considered. (b) The time period to be considered will be the six months prior to (or following) the making of the representation. However, this period may be shorter having regard to the nature of the product. [27] The defendant thus says that only the six-month period immediately prior to the complaint should be considered, and that its evidence with respect to that time period makes clear that the plaintiff's claim with respect to the three products identified in the NOCC is bound to fail. Legal Context Principles Governing Sequencing Applications [28] The leading case

relied upon by both parties is British Columbia v. The Jean Coutu Group (PJC) Inc., 2021 BCCA 219 [Jean Coutu], an appeal of an order that all preliminary applications be heard in conjunction with the certification motion. That included three groups of applications: motions to strike and for summary judgment, objections to the court's territorial jurisdiction, and a constitutional challenge to the statute that enabled class action against entities alleged to have been involved in the distribution and sale of opioids. [29] In Jean Coutu, at para. 40, Justice Butler confirmed that a pre-certification sequencing order is made pursuant to Supreme Court Civil Rule 5-3(1), and in particular Rule 5-3(1)(a) which authorizes a case planning conference order "setting a timetable for the steps to be taken" and Rule 5-3(1)(n) "respecting the conduct of any application". [30] Justice Butler noted that sequencing applications have become increasingly common in proposed class proceedings (para. 33). While he noted that a presumption had developed in the case law that a certification motion "ought to be the first procedural matter to be heard" (para. 35), he disagreed with that proposition, concluding at para. 37 that: [37] Each application must be determined in the context of the particular case before the court. The court's discretion ought to be exercised in a manner that facilitates and

achieves judicial efficiency and the timely resolution of the dispute. The factors summarized in Shaver properly arm judges to determine such applications. (To avoid further confusion, I will refer to the list of relevant factors as the "Shaver factors".) I reject the proposition that there is a presumption that the certification motion ought to be the first procedural matter to be heard. [31] Justice Butler was referring to the following excerpt from Shaver v. Mallinckrodt Canada ULC, 2021 BCSC 455, quoted at para. 33 of Jean Coutu, which summarizes factors found in the case law that help guide the court's exercise of its discretion with respect to sequencing: [10] Combined, the non-exhaustive list of factors is: a) any delay by the plaintiff in proceeding to certification; b) the extent to which a preliminary application may dispose of the whole proceeding or narrow the issues to be determined, taking into account the strength of the applicant's arguments on the proposed applications and the breadth of the applications; c) the cost to the parties of participating in pre-certification procedures and the potential to avoid exposing the defendants to costs of a full certification hearing if the matter will be resolved on the basis of the s. 4(1)(a) requirement alone; d) the potential for delay arising from interlocutory appeals; e the complexity and interplay of the issues that

may arise in and between the pre-certification and certification applications; f) whether the outcome of the motion will promote settlement; g the interests of economy and judicial efficiency (including whether the parties agree the motion will be determinative of the s.4(1)(a) aspect of the certification motion); and h the fair and efficient determination of the proceeding. [32] Justice Butler explained at para. 34 of Jean Coutu that: [34] The judge's task is not to weigh all the factors on each application. The factors are not a checklist to be reviewed by rote. Whether any individual factor need be considered will depend on the application the judge is considering. By way of example, an application seeking a pre-certification hearing to challenge the admissibility of evidence will not require the judge to weigh whether the application may dispose of the whole proceeding. It clearly will not. [33] Justice Butler rejected the proposition that a challenge to territorial competence must always be decided prior to certification, concluding at para. 43 that this argument: [43] disregards the purpose and import of a sequencing order in a class proceeding. The order does not resolve, or curtail resolution of, the parties' substantive rights. It is a discretionary, procedural order made with respect to the conduct of the proceeding. The subject matter of the proposed

pre-certification application is a factor, and perhaps an important factor, for the case management judge to consider but it does not alter the nature of the discretionary sequencing order nor eliminate consideration of other relevant factors. [34] In Davis v. Vancouver (Police Department), 2023 BCSC 1018, each defendant sought to bring a summary judgment application prior to the certification hearing. Justice Murray quoted extensively from Jean Coutu before considering the Shaver factors in turn. She noted at para. 15 that there was no delay by the plaintiff, as the action had been commenced just over a year earlier. With respect to the question of the extent to which the proposed preliminary application may dispose of the whole proceeding, she considered this question in two parts, noting at para. 18: [18] while consideration of strength is limited to a threshold inquiry, if it is clear that the defendants' summary judgment applications will succeed because of an obvious flaw, that weighs in favour of hearing the application prior to certification. An obvious flaw is one that does not require lengthy submissions and consideration of jurisprudence and the pleadings to assess. [35] Justice Murray concluded at para. 25 that the applications pass a threshold inquiry regarding strength, and at para. 26 that the applications raised "threshold issues that may result in the dismissal

of the entire claim". [36] With respect to cost, Justice Murray noted at para. 28 that the defendants assert that the preliminary application could be heard in three days, which she concluded could reduce the scope of the certification hearing. [37] With respect to delay, Justice Murray noted that the Court in Jean Coutu was willing to accept the risk of delay arising from multiple appeals, which it saw as a "virtually certain" eventuality. At paras. 32-34, she commented: [32] The situation here is similar. Of the defendants, only VPD has agreed not to appeal until after certification. However, dealing with the threshold issues before certification will ensure that only viable claims proceed to certification, which, in the end, will clarify the scope of the hearing and allow certification to proceed more efficiently and expeditiously. [33] In addition, the defendants are prepared to bring their applications promptly, which should help mitigate potential delay. In making this observation, I note that the plaintiff has not filed or served materials in support of a certification application or a proposed timetable or litigation plan. [34] I will treat delay as a neutral factor. [38] At para. 39, Justice Murray said: [39] I am satisfied that the defendants' applications involve threshold issues which will either eliminate or substantially streamline the certification hearing. The

applications can be brought promptly, and involve little evidence. To hear the certification application first, as urged by the plaintiffs, is illogical. It would unnecessarily prolong proceedings for parties against which there may not be a viable claim and be an inefficient use of judicial resources. [39] In the result, she directed that the defendants' applications be heard before certification. [40] In Tanchak v. British Columbia, 2023 BCSC 1482, the defendants sought to bring an application to declare the claim was an abuse of process because a class action dealing with similar subject matter had been certified in the Federal Court. Justice Norell referenced the Jean Coutu case and applied the Shaver factors. [41] The Tanchak action had been commenced in 2016 and served in 2018. At para. 14, Justice Norell concluded that there had been delay in prosecuting the action, and in particular, that there was no satisfactory explanation for delay from August 2019 to November 2022. With respect to the merits, after summarizing the parties' positions with respect to abuse of process (at paras. 15-22), she concluded at para. 23 that the application met the threshold merit test, and that if the defendants were successful, then it might result in a stay of the entire action. With respect to cost, she concluded (at para. 28) that the proposed application could be brought on a relatively

limited record and, while there would be some duplication with matters in issue on certification, it was clear that a full certification would be broader and more complex. With respect to delay, she commented at paras. 31-32 that: [31] Ms. Tanchak argues that the likely outcome of any application would create rounds of appeals and create further delay to get to certification. While an appeal of the proposed applications might be discrete and on a straightforward evidentiary record, scheduling will take many months. [32] In my view, this factor weighs in favour of the applications being heard prior to certification. Neither the hearing of these applications, nor any appeal, will cause a significant delay. The parties are not ready to proceed to certification. A certification hearing will not be possible for a considerable period of time. The Court and parties have been holding days in October 2023, and the proposed applications could be heard then with minimal, if any, overall delay. Any appeal will be discrete and on a limited record. [42] With respect to complexity and interplay of the issues, Justice Norell concluded at para. 33 that the record would be substantially larger at a certification hearing, and at paras. 34-35 noted that while there was obvious interplay on the issues, "ultimately they are not the same application". [43] Ultimately, at para. 44 she concluded that

the particular circumstances of the case favoured having the proposed applications heard prior to the certification hearing. [44] In Patrick v. British Columbia, 2023 BCSC 2147, Justice Kirchner denied a sequencing application by which the defendant sought to bring an application pursuant to Rule 9-5(1)(a) in advance of certification. A key issue in that case appeared to be delay. The plaintiff advised the court at the hearing (which occurred in November 2023) that it anticipated delivering a certification application in early 2024. Justice Kirchner concluded at para. 32 that: [32] I am not persuaded that hearing the strike motion in advance of the certification application will be efficient for either of the parties or the Court since any decision on the application is certain to be appealed. This creates a real risk of litigating in slices if the Province were to be unsuccessful or only partially successful on that application. This would lead to an appeal on the application to strike and a further hearing and probably an appeal on the certification. Litigating in slices can lead to higher costs and more complexity in the proceeding. There can also be unforeseen problems when a case is split up in this way. Principles Governing Summary Judgment Motions [45] The defendant referred me to the principles summarized by Justice Sharma in Latifi v. The TDL Group Corp., 2024 BCSC 832

at paras. 51-52, 54-59 and 62-63: [51] Rule 9-6 of the Supreme Court Civil Rules governs summary judgment: (5) On hearing an application under subrule (2) or (4), the court, (a) if satisfied that there is no genuine issue for trial with respect to a claim or defence, must pronounce judgment or dismiss the claim accordingly, (b) if satisfied that the only genuine issue is the amount to which the claiming party is entitled, may order a trial of that issue or pronounce judgment with a reference or an accounting to determine the amount, (c) if satisfied that the only genuine issue is a question of law, may determine the question and pronounce judgment accordingly, and (d) may make any other order it considers will further the object of these Supreme Court Civil Rules. [52] The bar on a motion for summary judgment is high: a defendant that seeks summary dismissal bears the evidentiary burden of showing that there is "no genuine issue of material fact requiring trial", to ensure that "claims that have no chance of success be weeded out at an early stage": Canada (Attorney General) v. Lameman, 2008 SCC 14 at paras. 10-11; Drummond v. Moore, 2012 BCSC 496 at para. 25. [54] The analysis under Rule 9-6(5)(a) focusses on whether the claim is without merit such that there is no genuine issue to be tried based on the material, including evidence. [55] As set out in Xiao v. Fan, 2020 BCSC 69

at para. 46, a judge hearing a summary judgment application must examine the pleaded facts to determine what causes of action they may support, including identifying the elements of each cause of action and whether the necessary material facts have been pleaded. If insufficient material facts have been pleaded such that it is beyond a doubt that the cause of action is bound to fail, then the defendant has met its onus, and the claim must be dismissed. [56] However, if sufficient material facts have been pleaded, the issue becomes whether the evidence adduced at the hearing is clear that there is no genuine issue for trial. A "genuine issue for trial"--sometimes referred to as a "bona fide triable issue"--may be one of fact or of law in the sense that a bona fide triable issue arises on the material before the court in the context of the applicable law. [57] A genuine issue of fact arises from a material conflict in the evidence, although Rule 9-6 is still available where there are disputed facts in the pleadings: McLean v. Law Society of British Columbia, 2016 BCCA 368 at para. 36; Lameman at para.

11. Each party must put its "best foot forward" as to the existence or non-existence of material issues and the underlying materials facts: Lameman at para. 11; McLean at paras. 36, 38; Pantusa at para. 58. [58] Accordingly, summary judgment cannot be defeated by vague references to what may be adduced in the future. Rather, it is judged on the basis of the pleadings and materials actually before the court, although the judge may make inferences of fact based on undisputed facts strongly supporting such inference: Lameman at paras. 11, 19. [59] That is why, generally speaking, the absence of discovery is not reason alone to deny summary judgment: Xiao at paras. 48-49; Pantusa at paras. 58, 91, 113, 133. The party opposing summary judgment must demonstrate there is a reasonable prospect that further discovery will reveal the existence of a triable issue: Xiao at paras. 48-49. [62] where the facts are contested, the court must not weigh evidence beyond determining whether it is incontrovertible. If further weighing is needed, then the "plain and obvious" or "beyond a doubt" test has not been met: Aubichon v. Grafton, 2022 BCCA 77 at para. 30, citing Beach Estate v. Beach, 2019 BCCA 277 at para. 49; Skybridge Investments Ltd. v. Metro Motors Ltd., 2006 BCCA 500 at paras. 8-12; Tran v. Le, 2017 BCCA 222 at para. 2. [63] Regarding questions of pure law, the defendant must show the

legal issues are "'well settled by authoritative jurisprudence" making the claim bound to fail: Haghdust v. British Columbia Lottery Corporation, 2011 BCSC 1627 at para. 33; leave to appeal ref'd, 2012 BCCA 120. However, where the only genuine issue is a question of law, the court has discretion to answer the question and grant judgment or dismiss the claim pursuant to Rule 9-6(5)(c). [46] I note also the comments of Justice Matthews in Shaver at para. 53: [53] Because Rule 9-6 applications can involve evidence, the evidence led might overlap with evidence led at the certification hearing. If that is the case, then judicial efficiency and the necessity to avoid hearings on the same evidence that may result in conflicting findings of facts mandate against hearing a Rule 9-6 application before certification. On this point, British Columbia urged the Court to adopt a robust approach to the use of Rule 9-6, relying on the Supreme Court of Canada's decision in Hryniak v. Mauldin, 2014 SCC 7. However, in Century Services Inc. v. LeRoy, 2014 BCSC 702 at paras. 82-89, var'd on different grounds 2015 BCCA 120, Madam Justice Griffin, still of this court, explained that the Ontario summary judgment rule at issue in Hryniak, unlike Rule 9-6, allows the court to weigh evidence. In that regard, it is similar to our summary trial rule, Rule 9-7. Madam Justice Griffin did not find Hryniak

helpful in determining how and when to apply Rule 9-6. She also noted that longstanding jurisprudence in British Columbia cautions against using Rule 9-6 if it will not address all portions of a claim or may result in conflicting findings of fact as between the Rule 9-6 proceeding and another proceeding in the same action. Competition Act Provisions [47] As noted above, the plaintiff's claim as pleaded is based in part on alleged breaches of s. 52 of the Competition Act, giving rise to a claim for damages in accordance with s. 36 of the Competition Act. [48] Section 52 is contained within Part VI: Offences in Relation to Competition. It provides that: (1) No person shall, for the purpose of promoting, directly or indirectly, the supply or use of a product or for the purpose of promoting, directly or indirectly, any business interest, by any means whatever, knowingly or recklessly make a representation to the public that is false or misleading in a material respect (1.1) For greater certainty, in establishing that subsection (1) was contravened, it is not necessary to prove that (a) any person was deceived or misled; (b) any member of the public to whom the representation was made was within Canada; or (c) the representation was made in a place to which the public had access. (1.2) For greater certainty, in this section and in sections 52.01, 52.1, 74.01, 74.011 and 74.02, the

making or sending of a representation includes permitting a representation to be made or sent. (2) For the purposes of this section, a representation that is (a) expressed on an article offered or displayed for sale or its wrapper or container, (b) expressed on anything attached to, inserted in or accompanying an article offered or displayed for sale, its wrapper or container, or anything on which the article is mounted for display or sale, (c) expressed on an in-store or other point-of-purchase display, (d) made in the course of in-store or door-to-door selling to a person as ultimate user, or by communicating orally by any means of telecommunication to a person as ultimate user, or (e) contained in or on anything that is sold, sent, delivered, transmitted or made available in any other manner to a member of the public, is deemed to be made to the public by and only by the person who causes the representation to be so expressed, made or contained, subject to subsection (2.1). (4) In a prosecution for a contravention of this section, the general impression conveyed by a representation as well as its literal meaning shall be taken into account in determining whether or not the representation is false or misleading in a material respect. (5) Any person who contravenes subsection (1) is guilty of an offence and liable (a) on conviction on indictment, to a fine in the discretion of

the court or to imprisonment for a term not exceeding 14 years, or to both; or (b) on summary conviction, to a fine not exceeding $200,000 or to imprisonment for a term not exceeding one year, or to both. (6) Nothing in Part VII.1 shall be read as excluding the application of this section to a representation that constitutes reviewable conduct within the meaning of that Part. (7) No proceedings may be commenced under this section against a person against whom an order is, on application by the Commissioner, sought under Part VII.1 on the basis of the same or substantially the same facts as would be alleged in proceedings under this section. [49] Section 36 is contained within Part IV: Special Remedies. The relevant provision is s. 36(1), which provides: (1) Any person who has suffered loss or damage as a result of (a) conduct that is contrary to any provision of Part VI, or (b) the failure of any person to comply with an order of the Tribunal or another court under this Act, may, in any court of competent jurisdiction, sue for and recover from the person who engaged in the conduct or failed to comply with the order an amount equal to the loss or damage proved to have been suffered by him, together with any additional amount that the court may allow not exceeding the full cost to him of any investigation in connection with the matter and of proceedings under this section. [50]

As noted above, the constituent elements of a claim under s. 52 were summarized in Sun v. Bloomex: [34] The principal elements of subsection 52(1) are as follows: 1) knowingly or recklessly; 2) making a representation to the public; 3) that is false or misleading; 4) in a material respect; 5) for the purpose of promoting, directly or indirectly, by any means whatsoever: a. the supply or use of a product; or b. any business interest. [51] The defendant says that the plaintiff's claim should, notwithstanding the pleading, be treated as a claim under s. 74.01 of the Competition Act. S. 74.01 is found in Part VII.1: Deceptive Marketing Practices. It provides: (1) A person engages in reviewable conduct who, for the purpose of promoting, directly or indirectly, the supply or use of a product or for the purpose of promoting, directly or indirectly, any business interest, by any means whatever, (a) makes a representation to the public that is false or misleading in a material respect; (b) makes a representation to the public in the form of a statement, warranty or guarantee of the performance, efficacy or length of life of a product that is not based on an adequate and proper test thereof, the proof of which lies on the person making the representation; (b.1) makes a representation to the public in the form of a statement, warranty or guarantee of a product's benefits for protecting or

restoring the environment or mitigating the environmental, social and ecological causes or effects of climate change that is not based on an adequate and proper test, the proof of which lies on the person making the representation; (b.2) makes a representation to the public with respect to the benefits of a business or business activity for protecting or restoring the environment or mitigating the environmental and ecological causes or effects of climate change that is not based on adequate and proper substantiation in accordance with internationally recognized methodology, the proof of which lies on the person making the representation; or (c) makes a representation to the public in a form that purports to be (i) a warranty or guarantee of a product, or (ii) a promise to replace, maintain or repair an article or any part thereof or to repeat or continue a service until it has achieved a specified result, if the form of purported warranty or guarantee or promise is materially misleading or if there is no reasonable prospect that it will be carried out. (2) Subject to subsection (3), a person engages in reviewable conduct who, for the purpose of promoting, directly or indirectly, the supply or use of a product or for the purpose of promoting, directly or indirectly, any business interest, by any means whatever, makes a representation to the public concerning the price at which a

product or like products have been, are or will be ordinarily supplied where suppliers generally in the relevant geographic market, having regard to the nature of the product, (a) have not sold a substantial volume of the product at that price or a higher price within a reasonable period of time before or after the making of the representation, as the case may be; and (b) have not offered the product at that price or a higher price in good faith for a substantial period of time recently before or immediately after the making of the representation, as the case may be. (3) A person engages in reviewable conduct who, for the purpose of promoting, directly or indirectly, the supply or use of a product or for the purpose of promoting, directly or indirectly, any business interest, by any means, makes a representation to the public as to the price at which a product or like products have been, are or will be ordinarily supplied by the person making the representation unless that person, having regard to the nature of the product and the relevant geographic market, establishes that (a) they have sold a substantial volume of the product at that price or a higher price within a reasonable period of time before or after the making of the representation, as the case may be; or (b) they have offered the product at that price or a higher price in good faith for a substantial period of time

recently before or immediately after the making of the representation, as the case may be. (4) For greater certainty, whether the period of time to be considered in paragraphs (2)(a) and (b) and (3)(a) and (b) is before or after the making of the representation depends on whether the representation relates to (a) the price at which products have been or are supplied; or (b) the price at which products will be supplied. (5) Subsections (2) and (3) do not apply to a person who establishes that, in the circumstances, a representation as to price is not false or misleading in a material respect. [52] As noted above, the defendant has put in evidence and relies upon the Enforcement Guidelines, published in 2009 by the Competition Bureau. I note that in Part I - Introduction, the Enforcement Guidelines state: This publication outlines the approach that the Commissioner of Competition is taking in enforcing the ordinary price claims provisions of the Act. The guidelines contained in this publication are not law. However, they may be relied upon as reflecting the Commissioner's interpretation of how the law is applied on a consistent basis by Competition Bureau staff. [53] The other provision referenced by the defendant is s. 103.1, which is found in Part VIII.1 - Matters Reviewable by Tribunal. As noted above, the defendant's position is that s. 103.1 mandates that any claim for a

violation of s. 74 "must" be brought before the Competition Tribunal. S. 103.1(1) provides that: (1) Any person may apply to the Tribunal for leave to make an application under section 74.1, 75, 76, 77, 79 or 90.1. The application for leave must be accompanied by an affidavit setting out the facts in support of the person's application under that section. [54] Section 74.1 is part of Part VII.1 - the same part in which s. 74.01 is located. It provides that: (1) If, on application by the Commissioner or a person granted leave under section 103.1, a court determines that a person is engaging in or has engaged in reviewable conduct under this Part, the court may order the person (a) not to engage in the conduct or substantially similar reviewable conduct; (b) to publish or otherwise disseminate a notice, in such manner and at such times as the court may specify, to bring to the attention of the class of persons likely to have been reached or affected by the conduct, the name under which the person carries on business and the determination made under this section, including (i) a description of the reviewable conduct, (ii) the time period and geographical area to which the conduct relates, and (iii) a description of the manner in which any representation or advertisement was disseminated, including, where applicable, the name of the publication or other medium employed; (c) to pay

an administrative monetary penalty, in any manner that the court specifies, in an amount not exceeding (i) in the case of an individual, the greater of (A) $750,000 and, for each subsequent order, $1,000,000, and (B) three times the value of the benefit derived from the deceptive conduct, if that amount can be reasonably determined, or (ii) in the case of a corporation, the greater of (A) $10,000,000 and, for each subsequent order, $15,000,000, and (B) three times the value of the benefit derived from the deceptive conduct, or, if that amount cannot be reasonably determined, 3% of the corporation's annual worldwide gross revenues; and (d) in the case of conduct that is reviewable under paragraph 74.01(1)(a), to pay an amount, not exceeding the total of the amounts paid to the person for the products in respect of which the conduct was engaged in, to be distributed among the persons to whom the products were sold -- except wholesalers, retailers or other distributors, to the extent that they have resold or distributed the products -- in any manner that the court considers appropriate. (3) No order may be made against a person under paragraph (1)(b), (c) or (d) if the person establishes that the person exercised due diligence to prevent the reviewable conduct from occurring. (4) The terms of an order made against a person under paragraph (1)(b), (c) or (d) shall be determined

with a view to promoting conduct by that person that is in conformity with the purposes of this Part and not with a view to punishment. Positions of the Parties The Defendant [55] The defendant says that its summary judgment application should be heard separately and in advance of certification. The defendant says that the summary judgment application: a) could dispose of the entire action; b) will otherwise streamline the certification process; c) is not costly; and d) can be dealt with in an efficient and fair manner. [56] The defendant says that, for the reasons outlined in the Defendant's NOA, the plaintiff's claim is fundamentally flawed in two ways - one factual, one legal. It says that these are obvious flaws, such that they will not require lengthy submissions or consideration of jurisprudence and pleadings to assess. The prospect of disposing of the plaintiff's claim entirely, or at least narrowing the scope of the claim significantly, weighs heavily in favour of sequencing the applications. [57] The defendant says that the thrust of its factual position on summary judgment is that the pleaded facts are untrue, and notes that this is not a question that would otherwise be assessed in the course of a certification application, as s. 4(1)(a) of the CPA requires the court to assume all pleaded facts to be true. [58] The defendant says that its application is of a nature

that can be heard on a limited record and disposed of relatively quickly, even though there would be some duplication with matters argued at certification. Even if there was an interlocutory appeal, that would not necessarily delay certification unreasonably. [59] The defendant says that a certification application will require the parties to necessarily incur significant expert fees in order to address the method of quantifying losses on a class-wide basis, since the court will have to be satisfied that there is an appropriate methodology for assessing losses. [60] The defendant objected to the plaintiff bringing forward evidence of any of the defendant's products beyond the two specific items identified in the NOCC. The defendant says that it has understood the plaintiff's claim to be limited to the sale of those two specific items, that the plaintiff would have to amend its NOCC in order to expand its claim, and that it would be unfair not to decide the summary judgment application based on the pleading at the time the summary judgment application was initiated. [61] When asked in the course of submissions if there is any case authority adopting the legal theory advanced by the defendant with respect to the unavailability of s. 36 of the Competition Act in a claim like that advanced by the plaintiff in this case, the defendant was unable to identify any. The Plaintiff [62]

The plaintiff says that the defendant's application is based on a fundamental mischaracterization of the NOCC and incomplete post-misconduct evidence. She says that rather than narrow the issues, the defendant's motion would fragment the proceeding and delay its resolution, inevitably giving rise to efforts to bring an interlocutory appeal. The plaintiff says that she has already delivered a full certification application, including expert evidence, and submits that the defendant's application is thus appropriately heard concurrently with certification. [63] With respect to the legal argument the defendant seeks to advance, the plaintiff says: This mischaracterizes the Plaintiff's claim. The Plaintiff does not rely on the ordinary price prohibition under section 74.01 to ground the statutory cause of action enabled by section 36 of the Competition Act. Rather, the Competition Act claim is expressly grounded in a breach of section 52, which prohibits false or misleading representations. Moreover, the allegations apply broadly to all Homeware Products marketed with purported Regular and Discount pricing, not merely three items. [64] The plaintiff notes as well that she advances claims under provincial consumer protection legislation as well as in unjust enrichment. The Competition Act claims are only one legal basis for the plaintiff's claims. [65] The plaintiff says that the

judgments in both Tanchak and Davis are distinguishable. In neither case was a certification application ready to proceed, and in Tanchak, there had been nearly 6.5 years of delay since the action was commenced. In both, the proposed applications attacked the claim as pleaded, rather than attempting to recharacterize the claim into something different - which is what the plaintiff says the defendant is attempting to do in this case. Rather, the plaintiff says the arguments sought to be advanced by the defendant on its summary judgment application are based on a fundamental misconception of the plaintiff's claim. [66] The plaintiff says that she has diligently progressed her claim and has delivered her full certification record, including expert and lay evidence. [67] With respect to the defendant's position that only a specific six-month period is relevant, the plaintiff says that the NOCC asserts a broader class period and the questions of whether the defendant's represented discounts are (a) fictitious as a matter of fact and (b) misleading or deceptive as a matter of law will require a trial on a proper evidentiary record following discovery. Analysis [68] There is no question of delay by the plaintiff in this case. The plaintiff has diligently progressed her claim and has delivered her full certification record. Both applications can be ready to proceed in short order once

sequencing is determined and an available hearing date is secured. [69] Having reviewed the Defendant's NOA and the relevant statutory provisions, I have significant concerns about whether sequencing the summary judgment application to proceed in advance would contribute to the fair and efficient determination of the proceeding. It seems to me that the defendant's proposed factual issue is built on multiple propositions. One proposition is that the plaintiff's claim is limited to the three specific products referenced in the NOCC. As I have set out above, the plaintiff takes a different view of the scope of its claim. I can see arguments in support of either interpretation, and do not intend to decide that issue here. But even if I were to conclude that, notwithstanding those portions of the claim that reference Homeware Products in a general sense, the action as currently pleaded should be read as being a three-product action, I would have to seriously consider giving the plaintiff an opportunity to clarify her pleading. [70] The second proposition underlying the defendant's factual position is the legal issue that I will discuss below. [71] The third proposition is that the comments in s. 4 of the Enforcement Guidelines are not just guidance but a legal restriction on how to determine an Ordinary Price claim - whether that claim is brought under ss. 36 and 52 on the one hand

or s. 74.01 on the other. That proposition may be impacted by the note in the Introduction that I cited above, describing the document as being "not law" but reflecting how the law is "applied on a consistent basis by Competition Bureau staff". [72] It seems to me that the Defendant's NOA would inevitably give rise to the plaintiff tendering different evidence supporting her different view of the scope of the pleadings and the applicable legal tests. There is a real risk and probably a likelihood that the court will be left with a fragmented record with contested facts from both sides. [73] The legal issue that the defendant seeks to advance is based on a legal theory that is constructed on an historical review of the development of s. 74.01. The defendant says that historical review contributes to a purposive interpretation of ss. 74.01 and 103.1 that mandate that any claim that relates to ordinary pricing must be brought under Part VII.1 and before the Competition Tribunal. [74] There is no case authority adopting the proposition the defendant proposes to advance. Nor is there any express language in the statute making clear that representations as to ordinary pricing cannot constitute a breach of s. 52(1), or that they can only be advanced under Part VII.1. Much of the language of the statute appears on its face to be permissive and not mandatory - which presumably is why

the defendant seeks to rely on its assertions as to the historical development of these various propositions. As well, s. 52(6) may be difficult to reconcile with the plaintiff's proposed interpretation. [75] I see the legal position the defendant seeks to advance as being more novel in nature than something that is "well settled by authoritative jurisprudence" (to use the language at para. 63 of Latifi) or raises an "obvious flaw" (to use the language at para. 18 of Davis). [76] All of this must be considered in the context of a summary judgment that, at best, would narrow the legal theories on which the plaintiff's claim is advanced, but not defeat the claim in its entirety. Rather, much the same factual issues would remain to be considered on certification based on the remaining legal theories advanced by the plaintiff. Much the same evidentiary record would have to be developed. [77] In my view, to the extent that the Defendant's NOA would give rise to any streamlining of a certification motion, that streamlining would not be substantial. On the other hand, there is a clear risk that the hearing of the Plaintiff's NOA would be delayed not only by a separate hearing of the Defendant's NOA but also by a potential appeal. [78] In my view, this is a case in which litigating in slices may well lead to delays, higher costs and more complexity in this proceeding, and the better

approach is to have the two applications heard together. That, in my view, best facilitates and achieves judicial efficiency and the timely resolution of the dispute in the particular circumstances of this case. Conclusion [79] I conclude that this is not an appropriate case for sequencing of the two proposed applications. Rather, the Defendant's NOA should be heard at the same time as the Plaintiff's NOA. "Veenstra J."