Ontario Superior Court refuses to stay Apple trade-in program class action

The Ontario Superior Court of Justice dismissed a motion to stay a class action against Apple Canada Inc., which involved an alleged breach of provincial consumer protection statutes and the Competition Act through its trade-in and recycling program.

The plaintiff, Boris Grossman, had requested a stay under ss. 106 and 138 of the Courts of Justice Act, pending the final determination of the decision currently under appeal in Lewis v. Uber Canada Inc., 2023 ONSC 6190. Apple opposed this stay motion and submitted a scheduling motion under s. 4.1 of the Class Proceedings Act, 1992, seeking to have its motion for summary judgment heard before the motion for certification. Grossman opposed the scheduling motion.

The Grossman action involved Apple's trade-in and recycling program, where consumers received credit for trading in old Apple devices when purchasing new ones. Grossman alleged that Apple overcharged consumers by not providing a sales tax credit on the trade-in value as required under s. 153(4) of the Excise Tax Act. Grossman claimed Apple breached provincial consumer protection statutes and the Competition Act and committed torts of negligence and conversion.

In Lewis, the plaintiff sought certification of a class action against Uber Eats, alleging that Uber should have paid the sales tax on items purchased using promotional discount codes. The court in Lewis ruled that it did not have jurisdiction to hear the claim, stating that it was a statute-barred tax recovery action and that the plaintiff did not establish a cause of action under the Class Proceedings Act. This decision is under appeal.

Grossman argued for a stay pending the outcome of the Lewis appeal, asserting that the jurisdictional issues in Lewis are relevant to the Grossman action. The court, however, found no certainty that the Lewis appeal would resolve the statutory jurisdiction issues raised in Grossman’s case. The court noted that the Lewis appeal might not address the statutory jurisdiction issue and that other unrelated grounds in Apple's summary judgment motion could independently dispose of the Grossman action.

The Superior Court emphasized that stays are not typically granted solely because another case on unrelated facts raises the same legal issue. The court also highlighted that Apple’s summary judgment motion addresses several grounds, including statutory jurisdiction and applicability of s. 153(4) of the ETA and statute limitations under the Limitations Act, 2002, which could resolve the case without considering the outcome of the Lewis appeal.

The court concluded that Apple should not be required to delay its summary judgment motion pending the Lewis appeal, which could result in significant and unjustified delays. As such, the court dismissed Grossman’s stay motion and granted Apple’s scheduling motion, ordering the summary judgment motion to be heard before the certification motion.