Executive Summary: Key Legal and Evidentiary Issues

• Both parties applied to the court following a partial appellate remittal in a proposed class proceeding against Live Nation and Ticketmaster entities.
   
• Central to both applications was whether the plaintiff's expert evidence satisfied the "some basis in fact" threshold for a plausible class-wide damages methodology.
   
• Defendants argued that the plaintiff's expert failed to establish a causal link between the alleged misrepresentations and any secondary-market price inflation.
   
• Availability of third-party transaction data from other secondary-market platforms was also disputed as a potential barrier to the proposed methodology.
   
• Dr. Snail identified numerous variables the plaintiff's expert allegedly failed to account for in his regression model.
   
• Comparisons were drawn to Kirk v. Executive Flight Centre Fuel Services Ltd. to test whether the expert evidence suffered from the same causation flaws found in that case.
   

Facts of the case

David Gomel brought a proposed class proceeding against Live Nation Entertainment, Inc., Live Nation Worldwide, Inc., TicketMaster LLC, TicketMaster Canada Holdings ULC, and TicketMaster Canada LP, alleging deceptive and unconscionable acts contrary to the Business Practices and Consumer Protection Act (BPCPA). On April 15, 2021, the certification judge certified common issues relating to these BPCPA claims, including a damages theory premised on a general inflationary effect in the secondary ticket market, while declining to certify claims under the Competition Act, unjust enrichment, and disgorgement. Both parties appealed, and the Court of Appeal allowed both appeals in part in Live Nation Entertainment, Inc. v. Gomel, 2023 BCCA 274, remitting several issues for reconsideration, including the Competition Act claims, unjust enrichment, disgorgement, and the damages methodology itself, on the basis that no expert evidence had been presented at the original certification hearing. On September 18, 2024, the plaintiff was permitted to adduce further evidence at the reconsideration hearing, namely the affidavit of economist Dr. Guillermo Marshall; the defendants responded with an affidavit from economist Dr. Timothy Snail, and the plaintiff filed a reply affidavit from Dr. Marshall. The reconsideration hearing before Justice Tammen therefore involved two competing applications: the plaintiff sought certification of the issues remitted by the Court of Appeal, while the defendants sought decertification of the entire class proceeding.

Policy and legislative provisions at issue

The claims engaged several statutory provisions. Under the BPCPA, the plaintiff relied on ss. 4 and 8 concerning deceptive and unconscionable practices, and s. 172(3)(a) concerning restoration of amounts paid. Section 171(1) of the BPCPA permits an action where a person has suffered damage or loss "due to a contravention of this Act," a phrase the Court of Appeal had referenced in describing the plaintiff's theory of causation. Under the Competition Act, the plaintiff relied on s. 52, which prohibits false or misleading representations, and s. 36, which allows recovery of loss or damage flowing from a contravention. The plaintiff's theory rested on the proposition that, through its Terms of Use and Purchase Policy, Ticketmaster represented that it prevented ticket bots and enforced ticket limits in the primary market, thereby inducing consumer confidence in the secondary market; the plaintiff alleged that Ticketmaster instead facilitated bot activity to generate additional fees once it launched its TradeDesk platform and entered the secondary market itself, rendering the earlier representations misrepresentations from that point forward.

Reasoning and analysis

The court identified the central question as whether Dr. Marshall's expert evidence cleared the "some basis in fact" threshold for a plausible methodology to establish class-wide damages. Dr. Marshall proposed a regression model comparing secondary-market ticket prices before and after June 30, 2015, the date Ticketmaster launched TradeDesk, controlling for factors such as general inflation and other market forces. Dr. Snail challenged this approach on several grounds, including that it did not isolate the effect of the misrepresentations themselves, failed to account for competing explanatory variables such as artist popularity or venue choices, and depended on data that might not be available from competitor platforms such as Vivid Seats and StubHub. On the data-availability point, the court found the concern understated by both sides but not fatal at this stage, noting that discovery had not yet occurred and that materials from a related U.S. Federal Trade Commission proceeding suggested Ticketmaster might already hold relevant market data. On the omitted-variables critique, the court treated the issue as premature, reasoning that Dr. Marshall's formula contained a control variable intended to capture such factors and that implementation details were more appropriately tested at trial. The most significant issue was causation: the defendants argued, relying on Kirk v. Executive Flight Centre Fuel Services Ltd., 2019 BCCA 111, that Dr. Marshall's methodology, like the flawed appraisal evidence in Kirk, merely measured a before-and-after price change without establishing that the change was caused by the alleged wrongdoing. The court distinguished Kirk on the basis that Dr. Marshall's model tested for, rather than presumed, an inflationary effect, and incorporated controls for confounding variables that the Kirk expert had lacked; the court also noted that tickets, unlike residential homes, are not a uniquely individualized commodity. While acknowledging that the plaintiff faced a difficult path at trial in proving the causal link between the misrepresentations and any market distortion, the court concluded that the theory was not hopeless or doomed to fail.

Ruling and overall outcome

The court dismissed the defendants' application to decertify the class proceeding and allowed the plaintiff's application to certify the issues remitted by the Court of Appeal, with the exception of proposed common issue (c), concerning reliance, which the plaintiff was no longer pursuing. The court additionally certified the new disgorgement issue and the aggregate damages issues. No monetary award, costs, or damages figure was determined at this stage, as the decision addressed only certification and decertification; the court expressly made no order of costs. The plaintiff was thus the successful party on both applications, though the underlying question of whether the defendants' conduct actually caused class-wide harm remains to be resolved at trial.