Executive Summary: Key Legal and Evidentiary Issues

• Two Federal Court decisions in the same proposed class proceeding address separate motions to strike evidence and pleadings in Diana Sun's action against Bloomex Inc.
• Chief Justice Crampton allowed the Strikethrough Pricing and Star Ratings Claims to proceed, finding they were not plain and obvious doomed to fail under Rule 221.
• Portions of the Further Amended Statement of Claim were struck as impermissible evidence rather than material facts, under Rule 174.
• Justice Gagné later held that Bloomex's motion to strike the Salgado affidavit could properly be heard before certification given its evidentiary centrality to two expert reports.
• Evidence from a related Australian proceeding was treated differently in each decision, admitted in 2025 for a limited purpose but excluded in 2026 under the former-testimony test.
• Lump sum costs of $5,000 were awarded to Ms. Sun in the 2025 decision, while no costs were ordered in the 2026 decision given the mixed result.

Facts of the case

Diana Sun, a resident of British Columbia, brought a proposed class proceeding against Bloomex Inc. in the Federal Court (Docket T-545-24) on behalf of individuals and legal persons in Canada, excluding Quebec residents, who purchased a Floral Product through www.bloomex.ca. Ms. Sun alleges that when she purchased a flower bouquet on Bloomex's website, a $1.99 surcharge was added to the price but was not disclosed until the end of the purchasing process (the "Surcharge Claims"). She further alleges that Bloomex displayed a struck-through "Regular Price" alongside a lower "Discount Price," when the Regular Price was rarely, if ever, actually charged (the "Strikethrough Pricing Claims"), and that Bloomex displayed inaccurate Star Ratings that overstated customer satisfaction with its products (the "Star Ratings Claims"). She also alleges a separate contravention involving "double ticketing" and a claim in unjust enrichment. Two motions within this proceeding are addressed together here: a 2025 motion by Bloomex to strike portions of the pleadings, and a 2026 motion by Bloomex to strike an affidavit filed in support of certification.

Statutory provisions and pleaded claims at issue

Ms. Sun's damages claim is brought under section 36 of the Competition Act for alleged contraventions of section 52 (false or misleading representations) and section 54 (double ticketing). Section 52(1) prohibits knowingly or recklessly making a representation to the public that is false or misleading in a material respect, for the purpose of promoting a product or business interest. Section 52(1.3) deems a "drip pricing" representation — one that omits a fixed obligatory charge — to be false or misleading. On the procedural side, Rule 174 of the Federal Courts Rules limits pleadings to material facts and excludes evidence, Rule 221 sets out grounds for striking pleadings (including no reasonable cause of action, scandalous or vexatious content, and abuse of process), and Rule 81(1) confines affidavits to matters within the deponent's personal knowledge.

The court's reasoning and analysis

In the 2025 decision, Chief Justice Crampton found that the Further Amended Statement of Claim contained sufficient material facts to support each of the five elements of section 52(1) for both the Strikethrough Pricing and Star Ratings Claims, so those claims were not doomed to fail. He also found that certain paragraphs of the pleading crossed from material facts into impermissible evidence and struck them, while retaining other paragraphs that he considered helpful particulars. He admitted an affidavit from Bloomex's founder, filed in a related Australian regulatory proceeding, for the limited purpose of showing that Bloomex was capable of understanding and answering similar allegations elsewhere — not for the truth of its contents. In the 2026 decision, Justice Gagné agreed to hear Bloomex's motion to strike the Salgado affidavit before certification, given that two expert affidavits relied on it as their factual foundation. She rejected Bloomex's argument that the affidavit contained improper "quasi-expert" opinion, concluding that its author's monitoring and screenshots of Bloomex's website were factual observations requiring no special expertise. However, applying the former-testimony admissibility test, she excluded the portions of the affidavit relying on documents from the Australian proceeding, because Bloomex had no opportunity to cross-examine those witnesses, the material issues differed, and the parties were not the same.

Ruling and outcome

In the 2025 decision, Bloomex's motion to strike was granted only in part: certain evidentiary passages were struck from the pleading, but its broader request to strike the Strikethrough Pricing and Star Ratings Claims was dismissed, leaving those claims intact. Ms. Sun was the largely successful party on that motion and was awarded lump sum costs of $5,000. In the 2026 decision, Bloomex's motion to strike the Salgado affidavit was likewise granted only in part — the paragraphs and exhibits drawn from the Australian proceeding were struck, but the balance of the affidavit was ruled admissible. Given that mixed result, no costs were awarded in the 2026 decision. Across both rulings, Ms. Sun retained the core of her pleaded claims and the bulk of her supporting evidence, while Bloomex succeeded in narrowing the evidentiary record by excluding material connected to the separate Australian proceeding.