Coquitlam Class Action Lawyer: Lawsuit against Ticketmaster - the 1st Step

For many, purchasing tickets online for a sports games, concerts, plays, musicals, or otherwise could be a frustrating experience. Feeling like bots and resale companies getting priority, consumers have felt victimized. I, for one, am always unable to get the seats I want unless I pay mark-up prices after on other resale ticket websites. This issue has been brought to the forefront in the case of Gomel v. Live Nation Entertainment, Inc., 2021 BCSC 699. Relying on the incredible investigative reporting of the Toronto Star and CBC, a class action is being pursued under the BC Consumer Protections Act, SBC 2004 c. 2 (“BCCPA”). Mr. Justice Tammen provides an apt summary of the “match” that lit this action in paras. 1 and 2:

In July, 2018, at a convention in Las Vegas, reporters for the Toronto Star and CBC (“Star/CBC”) went undercover, posing as professional ticket resellers, and attended a closed door session hosted by the secondary sales division of the defendant Ticketmaster. At that session, several representatives of Ticketmaster, in an effort to secure business for their secondary ticket sales platform, espoused the benefits of their inventory software, Tradedesk. Those representatives also assured the undercover reporters that the secondary sales division of Ticketmaster did not share information about resellers’ accounts with the primary sales division. In particular, Ticketmaster employees were reported to have said that they were unconcerned with breaches of the Terms of Use that applied to the primary market, prohibiting use of ticket “bots” and creation of multiple accounts. Ticketmaster staff acknowledged that no professional reseller could make a living with only one primary market account, given the normal ticket limit of six or eight tickets per event.

In September, 2018, both the Star and CBC published articles detailing the undercover operation, along with commentary from various industry observers. One of those, a business school professor, described Ticketmaster’s alleged behaviour as “misleading” and “unethical.” He was also quoted as saying: “Helping to create a secondary market where purchasers are duped into paying higher prices, and securing themselves a second commission, should be illegal.” The class action bar of Canada obviously agreed. The Star/CBC expose led directly to the commencement of five actions in four Canadian provinces in the fall of 2018.

The representative plaintiff in this matter was forced to use a third-party site to purchase Bruno Mars tickets at an inflated price. Once the investigative report was released and more victims of such allegedly unlawful actions rose, as did litigation. There have been actions filed against Ticketmaster/Live Nation in Ontario, Saskatchewan, and Quebec.

In the Province of BC, the lawsuit has been filed premised under the “misrepresentation” of Ticketmaster’s Terms and Use and the BCCPA. The plaintiff sought to sue under other legal avenues such as Unjust Enrichment, Negligent Misrepresentation, and Competition Act however these were struck (aka dismissed) by the Trial Judge.

Fortunately, Mr. Justice Tammen did confirm that the plaintiff satisfied each of the requirements of s. 4(1) of the Class Proceedings Act and therefore certified the action.

Mr. Justice Tammen also noted the TEST FOR CERTIFICATION at paras. 41-45 as follows:

The Test For Certification

[41]         Section 4(1) of the Class Proceedings Act, R.S.B.C. 1996, c.50 [CPA] contains the five requirements for certification:

4   (1) Subject to subsections (3) and (4), the court must certify a proceeding as a class proceeding on an application under section 2 or 3 if all of the following requirements are met:

(a) the pleadings disclose a cause of action;

(b) there is an identifiable class of 2 or more persons;

(c) the claims of the class members raise common issues, whether or not those common issues predominate over issues affecting only individual members;

(d) a class proceeding would be the preferable procedure for the fair and efficient resolution of the common issues;

(e) there is a representative plaintiff who

(i) would fairly and adequately represent the interests of the class,

(ii) has produced a plan for the proceeding that sets out a workable method of advancing the proceeding on behalf of the class and of notifying class members of the proceeding, and

(iii) does not have, on the common issues, an interest that is in conflict with the interests of other class members.

[42]         The certification requirements are to be interpreted generously, keeping in mind the three advantages of class action legislation, namely, judicial economy, access to justice and behaviour modification: Hollick at paras. 15–16.

[43]         The certification stage is not meant to be a test of the merits of the action, rather, it is concerned with form and with whether the action can properly proceed as a class action: Hollick at para. 16; Pro-Sys Consultants Ltd. v. Microsoft, 2013 SCC 57 at para. 99.

[44]         Subsection 4(1)(a) is assessed on the same standard as on a motion to strike pleadings under Rule 9-5(1)(a).  The plaintiff satisfies this requirement unless it is plain and obvious that the plaintiff's claim cannot succeed: Hollick at para. 25, Microsoft at para. 63.  For this analysis, the Court must assume that all the pleaded facts are true unless they are patently unreasonable or incapable of proof: Watson v. Bank of America Corp., 2014 BCSC 532.  A claim must not be struck merely because it is novel or complex: Hunt v. Carey Canada Inc., [1990] 2 S.C.R. 959 at 980.

[45]         Subsections 4(1)(b)–(e) require the plaintiff to show “some basis in fact” for each requirement: Hollick at para. 25.  The "some basis in fact" standard does not require that the court resolve conflicting facts and evidence; at certification, the court is ill-equipped to resolve conflicts in the evidence or assess evidentiary weight: Microsoft at para. 102.