Andrew D. Borrell

Two class action proceedings—one against TELUS Communications Company and related entities, and one against Bell Mobility Inc.—were brought by plaintiffs alleging that the defendants engaged in similar practices of rounding up seconds to minutes on cell phone bills.

The defendants moved to consolidate the two actions for trial or summary judgment.

The court granted the motion to hear the two summary judgment motions consecutively in a single three-week block of hearing time, finding that the common issues were identical and that separate proceedings would create an unnecessary multiplicity of litigation and risk inconsistent findings.

However, the court determined that the case management judge would not preside over the summary judgment motions, as the principles underlying Rules 37.15(1) and 77.06(2)—which prohibit a case management judge from presiding at trial without consent—apply equally to summary judgment motions.

This costs endorsement addresses the Plaintiff's entitlement to costs following an unsuccessful motion by the Defendants to amend the certification of a class action.

The court awards the Plaintiff $150,000 in costs, finding the Defendants' objections unpersuasive, particularly in the absence of their own Bill of Costs for comparison.

The court commends Plaintiff's counsel, especially Ms. Nayerahmadi, for effective advocacy.

The court dismissed TELUS’s motion to amend the certification order in a class action regarding alleged systematic overbilling of mobile phone customers.

TELUS sought to decertify aggregate damages as a common issue and to require individual inquiries into class membership, arguing that business and consumer customers could not be reliably distinguished.

The court found that TELUS’s arguments and evidence were not new and had already been addressed at certification.

The court reaffirmed that TELUS’s internal records and account types provide a sufficiently reliable basis for distinguishing between business and consumer customers, and that any residual issues can be managed administratively after the common issues trial.

This case conference endorsement addressed three scheduling matters in ongoing class action litigation: an upcoming motion regarding costs ordered by the Supreme Court of Canada, a motion to revise the certification order, and the discovery plan and schedule.

The court established a specific timeline for the costs motion and examinations for discovery, and scheduled a further case conference to review progress on the certification amendment motion.

A class action was brought against a telecommunications provider on behalf of approximately two million Ontario residents who alleged they were overcharged through an undisclosed call-rounding practice.

The class consisted of both consumers (protected from arbitration by the Consumer Protection Act, 2002) and non-consumer business customers bound by a mandatory arbitration clause in standard form contracts.

The majority held that s. 7(5) of the Arbitration Act, 1991 does not grant the court discretion to refuse to stay claims that are dealt with in an arbitration agreement, and that the first precondition under s. 7(5)(a) was not met because the sole matter in dispute — alleged overbilling — was dealt with in the arbitration agreements.

The business customer claims were therefore stayed, as only the consumers benefited from the Consumer Protection Act's override of the arbitration clause.

Four judges dissented, holding that s. 7(5) confers a discretion to allow the entire proceeding including arbitrable claims to continue in court where it would be unreasonable to separate them.

This appeal concerns whether a partial stay of proceedings should be granted in favour of arbitration in a class action involving both consumer and non-consumer claims against TELUS Mobility for alleged undisclosed billing practices (rounding up calls to the next minute).

The appellants argued that the motions judge erred in refusing to stay the non-consumer claims pursuant to section 7(5) of the Arbitration Act, 1991.

The appellants contended that the Court of Appeal's decision in Griffin v. Dell Canada Inc. had been overtaken by the Supreme Court's decision in Seidel v. TELUS Communications Inc. The Court of Appeal dismissed the appeal, holding that Griffin remains binding authority in Ontario and has not been overtaken by Seidel, as the two cases were decided in materially different legislative contexts.