Executive Summary: Key Legal and Evidentiary Issues

• WestJet sought to strike portions of Air Passenger Rights' Amended Notice of Civil Claim relating to a restoration order.
   
• Air Passenger Rights claimed WestJet's reimbursement caps for flight-delay expenses violated the Business Practices and Consumer Protection Act.
   
• Two questions framed the analysis: whether Air Passenger Rights had standing to seek a restoration order, and whether the relief pleaded actually constituted one.
   
• Court of Appeal authority in Knight and the Supreme Court of Canada's decision in Seidel established that non-interested parties cannot bring representative claims under section 172.
   
• Justice Morishita found the pleaded relief amounted to a damages claim rather than a restoration order under section 172(3)(a).
   
• Costs were left provisional, pending further written submissions from the parties.
   

Facts of the case

WestJet Airlines Ltd. applied under Rule 9-5(1) of the Supreme Court Civil Rules to strike portions of the Amended Notice of Civil Claim filed by Air Passenger Rights on November 27, 2024. Air Passenger Rights, a non-profit advocating for air travellers, sued WestJet under the Business Practices and Consumer Protection Act (BPCPA). The claim centred on WestJet's website guidelines for reimbursing passengers for expenses tied to flight delays — capping hotel costs at $150 CAD per night ($200 CAD for non-Canadian destinations) and meals at $45 CAD per day, while excluding cellular roaming charges, missed events, lost wages, and connections to non-partner airlines or cruises. Air Passenger Rights argued that because the Air Passenger Protection Regulations and the Montreal Convention impose no such caps, WestJet's guidelines were deceptive and contravened the BPCPA. It sought declarations and an injunction under section 172(1), plus a restoration order under section 172(3)(a) directing WestJet to restore money to affected passengers, along with a referral to an associate judge, registrar, or special referee to assess those amounts. WestJet did not oppose the declaratory and injunctive relief but sought to strike the paragraphs tied to the restoration order.

Policy and legislative provisions at issue

Section 172(1) of the BPCPA permits a person to seek a declaration or injunction against a supplier for contravening the Act. Section 172(3)(a) allows the court, once such relief is granted, to order a supplier to restore to any person money or property acquired because of a contravention. Rule 9-5(1) of the Supreme Court Civil Rules lets the court strike pleadings that disclose no reasonable claim. The Air Passenger Protection Regulations and the Montreal Convention set out airlines' obligations to delayed passengers but, according to Air Passenger Rights, impose no upper limit on reimbursable hotel, meal, roaming, lost-wage, or prepaid-event costs.

Reasoning and analysis

Justice Morishita identified two questions: whether Air Passenger Rights could bring a restoration-order claim on behalf of others despite having no personal interest under the BPCPA, and whether the relief pleaded was actually a restoration order. Regarding the first question, the court reviewed Ileman v. Rogers Communications Inc., which set four prerequisites for a restoration order, including that the beneficiary must have been the source of money acquired by the supplier and must hold an interest in the thing to be restored. Air Passenger Rights argued that Ileman's use of the term "beneficiary" rather than "plaintiff" signalled that a non-interested party could sue on behalf of affected consumers. Justice Morishita rejected this reading, relying instead on Knight v. Imperial Tobacco Canada Limited and Seidel v. TELUS Communications Inc., both of which held that section 172 does not authorize representative actions, unlike its repealed predecessor, the Trade Practice Act. Turning to the second question, the judge found that even if standing existed, the Amended Notice of Civil Claim never alleged WestJet acquired money from the affected passengers — a prerequisite for restoration — and instead pleaded a damages claim framed as a restoration order. The judge also rejected the proposed referral to an associate judge, registrar, or special referee to assess damages, holding that those judicial officers lack jurisdiction to determine entitlement or quantum.

Ruling and overall outcome

Justice Morishita struck the identified paragraphs from Parts 1, 2, and 3 of the Amended Notice of Civil Claim under Rule 9-5(1)(a), while granting Air Passenger Rights leave to amend everything except the claim for a referral to an associate judge, registrar, or special referee, which the court found incapable of amendment. WestJet, having been substantially successful on the application, was found provisionally entitled to its costs of the application in the cause. The parties may file written submissions by October 1, 2026, and response submissions by October 15, 2026, if they wish to deviate from this provisional costs order; absent such submissions, WestJet's provisional entitlement to costs stands.