Executive Summary: Key Legal and Evidentiary Issues

• Plaintiff alleged violations of sections 52 and 54 of the Competition Act for misleading pricing and star ratings.

• Defendant sought to strike key claims (strikethrough pricing and star ratings) under Federal Courts Rule 221.

• The court upheld the plaintiff’s core claims as adequately pleaded and not doomed to fail.

• Defendant partially succeeded in striking certain paragraphs containing improper evidence.

• Plaintiff's pleadings were found to disclose a reasonable cause of action under Rule 334.16(1)(a).

• The court awarded the plaintiff $5,000 in costs as the largely successful party on the motion.

Facts and outcome of the case

Background of the dispute
Diana Sun, a British Columbia resident, brought a proposed class action against Bloomex, Inc., a Canadian flower delivery company. The action targets representations made on Bloomex's website related to the pricing and quality of floral products and services. Specifically, Ms. Sun alleged that Bloomex engaged in deceptive marketing by displaying inflated original prices (strikethrough pricing), inaccurate star ratings, and hiding a $1.99 surcharge until the end of the checkout process. The lawsuit claims violations of sections 52 and 54 of the Competition Act, which prohibit materially misleading advertising and double ticketing, respectively.

Nature of the proceeding
This Federal Court decision responds to a motion by Bloomex to strike certain portions of Ms. Sun’s Further Amended Statement of Claim (FASC). Bloomex sought to dismiss the strikethrough pricing and star ratings claims on the basis that they failed to disclose a reasonable cause of action, were frivolous or vexatious, and constituted an abuse of process under Rule 221(1)(a), (c), and (f) of the Federal Courts Rules. Bloomex also requested the removal of specific pleadings it argued contained inadmissible evidence.

Legal and evidentiary analysis
The court examined whether Ms. Sun's pleadings met the standard of material facts necessary to sustain a cause of action under section 36 of the Competition Act. It ruled that the allegations related to misleading price comparisons and outdated or misleading star ratings were adequately pleaded and not “plain and obvious” to fail. The court found sufficient material facts addressing each element of subsection 52(1), including representations made to the public, knowledge or recklessness, and the alleged harm.

As for evidentiary issues, the court distinguished between facts necessary to frame the claims and impermissible evidence within pleadings. It struck certain website screenshots and narrative descriptions in paragraphs 19–27 and part of paragraph 9, finding them to be improper evidence rather than necessary factual context.

Outcome of the motion
The court dismissed Bloomex’s request to strike the strikethrough pricing and star ratings claims. These claims will proceed as part of the proposed class action. However, the court granted Bloomex’s request to strike the specific paragraphs of the FASC that contained inadmissible evidence. The court also clarified that its ruling satisfied the first prong of the class certification test under Rule 334.16(1)(a), namely that the plaintiff’s claims disclose a reasonable cause of action.

Costs
Although Bloomex partially succeeded on evidentiary grounds, the court considered the overall outcome to favor Ms. Sun. Accordingly, it awarded her a lump sum of $5,000 in costs.