On February 4, 2003, Justice Maurice Cullity of the Ontario Superior Court of Justice dismissed a motion for certification of an action against Blockbuster Canada Co. based on Blockbuster’s extended viewing fees. The plaintiff claimed that Blockbuster’s extended viewing fees constituted a breach of the rental contract, amounted to penalties and unjustly enriched Blockbuster.
The court’s decision to dismiss the motion is based on three findings: (1) the judge struck out the penalty claim as disclosing no cause of action. To succeed on the penalty claim the plaintiff had to plead that the extended viewing fee was payable on his own breach of the contract. The facts as pleaded did not suggest that the plaintiff’s failure to return the video at the end of the rental period amounted to a breach of contract on his part; (2) the claims of unjust enrichment and breach of contract by Blockbuster were not found to raise any common issues. The resolution of both of these claims turned entirely on individual issues like each customer’s understanding of the rental contract; and (3) the judge concluded that, in the absence of any common issues, a class proceeding was not the preferable procedure.
Markus Koehnen and Jennifer Dent of McMillan Binch LLP represented Blockbuster. Michael Peerless and Dawn Sullivan of Siskind, Cromarty, Ivey & Dowler LLP represented the plaintiff. The plaintiff has filed a notice of appeal to the Divisional Court.
The court’s decision to dismiss the motion is based on three findings: (1) the judge struck out the penalty claim as disclosing no cause of action. To succeed on the penalty claim the plaintiff had to plead that the extended viewing fee was payable on his own breach of the contract. The facts as pleaded did not suggest that the plaintiff’s failure to return the video at the end of the rental period amounted to a breach of contract on his part; (2) the claims of unjust enrichment and breach of contract by Blockbuster were not found to raise any common issues. The resolution of both of these claims turned entirely on individual issues like each customer’s understanding of the rental contract; and (3) the judge concluded that, in the absence of any common issues, a class proceeding was not the preferable procedure.
Markus Koehnen and Jennifer Dent of McMillan Binch LLP represented Blockbuster. Michael Peerless and Dawn Sullivan of Siskind, Cromarty, Ivey & Dowler LLP represented the plaintiff. The plaintiff has filed a notice of appeal to the Divisional Court.
