Plant-based milk surcharge: class action authorized against Starbucks, Second Cup and Tim Hortons

Paying 80 cents extra for oat milk in your coffee: a mere surcharge, or lesion within the meaning of the law? On June 10, 2026, Quebec’s Superior Court authorizes a class action against Starbucks, Second Cup and Tim Hortons on that very question — with a twist: it was the evidence filed by the chains themselves that allowed the case to move forward.

In Ohayon v. Starbucks Coffee Canada inc., 2026 QCCS 2064, Justice Catherine Martel authorizes a class action against Starbucks Coffee Canada, Foodtastic (the Second Cup banner) and The TDL Group (Tim Hortons), on behalf of consumers who paid a surcharge to replace cow’s milk with a plant-based milk in their beverage. The authorization, however, is only partial.

The plaintiff, Liel Ohayon, argues that the surcharge — 80 cents at Starbucks and Second Cup, 50 cents at Tim Hortons — is disproportionate and amounts to lesion under section 8 of the Consumer Protection Act, because plant-based milks supposedly cost no more than cow’s milk.

One essential clarification: authorization is not a ruling on the merits. It is a screening stage. The Court does not decide that the surcharges are actually lesionary — only that this is an arguable case, one that deserves to be debated on the merits.

I — The claim

A matcha latte, an oat milk and 80 cents too many?

The plaintiff regularly buys her beverages at the Second Cup on the Loyola campus and, occasionally, at the Starbucks on Queen Mary Road, in Montreal. Because she follows a vegan diet, she has the cow’s milk replaced with soy or oat milk. The result: she pays $6.80 for a beverage that would cost her $6.00 with cow’s milk.

Her reasoning is simple. If plant-based milks cost roughly the same as cow’s milk, then the surcharge corresponds to no real cost: it would therefore be disproportionate, lesionary under section 8 CPA, and imposed through an abusive clause under article 1437 of the Civil Code. She is suing not the franchised restaurants where she bought her coffees, but the companies that head the networks and that, she alleges, set the prices.

II — The authorization stage

A filter, not a trial

Authorizing a class action (article 575 CCP) rests on four criteria. Here, the defendants contested only one: the appearance of right — that is, whether the alleged facts appear to justify the conclusions sought.

The threshold is deliberately low. An « arguable case » is enough; only frivolous or manifestly ill-founded claims are dismissed. At this stage, the alleged facts are taken as true — but not mere hypotheses, inferences or opinions, nor assertions that rest on no evidence.

III — The twist

The evidence that was missing — and the evidence that saved the case

The heart of the plaintiff’s reasoning is that plant milk costs roughly as much as cow’s milk. Yet the Court notes that she alleges no fact and produces no evidence about the chains’ supply costs. Her only evidence concerns retail prices — a Dalhousie University study showing that in 2022, in Quebec, substitutes sold for less than cow’s milk in stores.

The problem: wholesale prices cannot be inferred from retail prices, all the more so because the retail price of cow’s milk is regulated in Quebec, unlike that of plant-based milks. The plaintiff’s syllogism therefore rested on an unproven hypothesis. In other words, her own evidence was not enough.

This is where the twist comes in. In her application, the plaintiff had invited the defendants to prove their costs. They complied, through sworn statements filed under seal — which reveal that they actually pay more for their substitutes than for cow’s milk: about 16% more for Starbucks, 98% more for Second Cup, and 63% to 67% more for Tim Hortons franchisees. These figures do not prove the actual costs at this stage, but they allowed the Court to assess the appearance of right.

IV — Lesion, by the numbers

Real cost versus price charged

Objective lesion (section 8 CPA) requires a disproportion between what the consumer gives and what they receive, so considerable that it gravely harms the consumer. The Court first sets aside the plaintiff’s « market value » argument, which claimed the 80-cent surcharge was nearly double the « true » value of 50 cents: nothing shows that value would be 50 cents rather than 80 cents, and no competitor prices are alleged.

It is the other method — comparing the surcharge to the real additional cost of the substitution — that moves the case forward. And there, the three chains are not in the same position:

For Starbucks, the Court holds that it is not frivolous to argue that a surcharge of more than six times the real cost is disproportionate to the point of being lesionary. For Second Cup and Tim Hortons, whose surcharges stay below double, the disproportion looks less striking; but because lesion analysis is not reduced to arithmetic, the Court finds it not impossible that a trial judge could qualify it as lesionary.

V — The legal turn

No contract with the franchisors — but a possible fault

One obstacle stood in the way, however: section 8 CPA is contractual in nature, and the plaintiff never contracted with the franchisors, but with the franchised restaurants. At the hearing, she therefore reframed her claim on the ground of extracontractual civil liability (article 1457 CCQ): a franchisor that compels or induces its franchisees to sell at the prices it sets would commit a fault if those prices turn out to be lesionary.

The Court finds the argument serious: a third party who knowingly associates itself with another’s contractual fault may incur extracontractual liability. The allegations that it is indeed the defendants who set the prices are precise, uncontradicted, and therefore taken as true.

The judge does regret it: the plaintiff had not pleaded this basis in her application — no mention of article 1457, conclusions of a contractual nature, common questions silent on the subject. This « does not foster a fair debate », she writes, but it is not fatal: one must allege the facts, not the law, and all the necessary facts were on file. The defendants, if they were taken by surprise, could have sought an adjournment; they did not.

VI — What the Court sets aside

An authorization cut narrower than requested

Authorization is granted, but trimmed on several points. The claim is limited to the extracontractual basis, against Starbucks Coffee Canada, Foodtastic and The TDL Group only. The two related companies, Restaurant Brands International Inc. and its limited partnership, are set aside: no allegation supports the claim that they set the prices.

The punitive damages claimed under section 272 CPA are refused: that provision applies only between the parties to a consumer contract and, following Richard v. Time, cannot target a third party to the contract. Likewise, the contractual remedies — nullity, restitution, reduction of obligations — cannot be sought against third parties to the contracts. Finally, the Tim Hortons group, first defined Canada-wide, is brought back to Quebec, and the vague notion of « non-dairy substitute » is clarified to cover soy, oat, almond and coconut milk.

Conclusion

The debate over the « vegan tax » will take place

The case is far from decided, but it will move forward. The judgment illustrates a reality of consumer class actions: at the authorization stage, the threshold is so low that a claim can survive even when the plaintiff’s initial evidence is deficient — here, it was the figures supplied by the chains to defend themselves that tipped the balance.

The real battle remains, the one on the merits: proving that a surcharge of 50 or 80 cents for a plant-based milk gravely harms the consumer. For Starbucks, the gap of more than six times its cost will give it ammunition; for the other two, whose surcharge stays below double, the case looks harder to make. Vegan consumers — and everyone who chooses plant-based milk — will be watching closely.