Federal Court Interprets Drip Pricing: No Drip, No Class

The Federal Court has held that the Competition Act's drip pricing provisions do not require a single, all-in price to be displayed to customers. Instead, there are two necessary elements at the core of drip pricing: concealment and sequence. The absence of these necessary elements in the plaintiff’s pleading led the Federal Court to refuse to certify the proposed class action in Kuling v. Ticketmaster L.L.C., 2026 FC 1185.

The plaintiff purchased tickets to a comedy show from Ticketmaster's online platform. The plaintiff was charged a mandatory order processing fee, which offsets the cost of online ticket handling, processing and support. Ticketmaster's platform displayed the order processing fee as its own line item, separate from the face value of the tickets. The plaintiff alleged that, because of the order processing fee, the tickets were not attainable at their advertised face value, which constituted a price misrepresentation contrary to subsections 52(1.3) and 74.01(1.1) of the Competition Act.

Justice Gascon interpreted the drip pricing provision of the Competition Act as comprised of "two inherent dimensions at the core of drip pricing conduct: an element of concealment and a sequential element." Concealment involves luring customers in by hiding mandatory fees. The sequential element involves revealing these hidden fees at a later stage in the purchase, for example: after a customer clicks "proceed to checkout". Drip pricing is misleading because customers "who are attracted to the initially advertised price may commit to a purchase before the hidden fees are revealed."

Justice Gascon found that the pleadings did not disclose the necessary elements of concealment or sequencing because both the order processing fee and the face value price of the tickets were displayed "simultaneously, in close proximity to one another and in plain sight" and purchasers did "not have to look beyond Ticketmaster's advertised price to know what they have to pay." Justice Gascon therefore denied certification for failure to disclose a reasonable cause of action.

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• No all-in pricing requirement. As interpreted by Justice Gascon, unlike the federal air passenger rules, consumer protection legislation in Quebec or Ontario's ticket-related legislation, the Competition Act does not require disclosure of a single all-inclusive price. Partitioned pricing (also referred to as segmented or itemized pricing), on its own, does not infringe the drip pricing provisions.
• Implications. Examples of a dripped price discussed by the Court include where a mandatory fee is "below the fold", needs a click or additional action to see, or only appears later in the online shopping process, such as at checkout. Itemizing fees is not drip pricing, provided every mandatory charge is clearly shown as part of the price at first disclosure, even if customers must do the basic arithmetic to find the total themselves.
• Gatekeeping at certification. The Court accepted that its role is not to weigh the merits of a claim at certification. But the Court concluded that sending a clear question of statutory interpretation to trial would mean failing in its gatekeeping role. Novelty alone will not carry a claim through certification: a claim centered on a new statutory interpretation must be arguable, credible and have a reasonable prospect of success.