What is the standard required to certify a common issue on aggregate damages? The British Court of Appeal in Live Nation Entertainment, Inc. v. Gomel, 2023 BCCA 274 clarifies that a theory of damages is distinct from and insufficient to meet the requirement of establishing the existence of a plausible methodology to determine damages on a class-wide basis.
BACKGROUND
In April 2021, the Supreme Court of British Columbia ("Supreme Court") certified a class action against Live Nation Entertainment, Inc., Live Nation Worldwide, Inc., Ticketmaster LLC, Ticketmaster Canada Holdings ULC, and Ticketmaster Canada LP (collectively “Ticketmaster”). The plaintiff broadly alleged that Ticketmaster made representations as to its enforcement against ticket purchasing limits and professional resellers, and due to the lack of such enforcement despite these representations, caused a “general inflationary effect” in the secondary market, causing widespread loss to secondary market ticket purchasers and significant financial gain to Ticketmaster.
The Supreme Court judge certified the class action on the common issues of deceptive practices and unconscionable practices claims under the Business Practices and Consumer Protection Act, S.B.C. 2004, c. 2 [BPCPA]. He also certified common issues related to damages. He did not certify the plaintiff’s restoration claim under the BPCPA or the claims under the Competition Act, R.S.C. 1985, c. C-34 [Competition Act], the common law of negligent misrepresentation or unjust enrichment.
Ticketmaster appealed the certification on the following issues: that its representations amounted to deceptive or unconscionable conduct; that the absence of pleading how claims under the BPCPA caused loss to the class members; the overbroad interpretation of “consumer” and “supplier” under the BPCPA; and the absence of evidence to support the existence of a plausible methodology to determine loss or damage on a class-wide basis.
The plaintiff cross-appealed the judge’s refusal to certify his restoration, Competition Act, negligent misrepresentation, and unjust enrichment claims.
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