D. Geoffrey Cowper

Telecommunications companies sought leave to appeal certification orders permitting class proceedings concerning cellular phone billing practices.

The proposed class actions alleged that the defendants breached contracts, engaged in deceptive practices contrary to the Consumer Protection Act, 2002, and were unjustly enriched by rounding call durations up to the nearest minute under plans described as billed “per minute.” The moving parties argued that individual contractual contexts prevented the existence of a common issue and that certification was therefore inappropriate.

The court held that the meaning of the contractual phrase “per minute billing” was a common issue capable of resolution across the class, particularly given the standardized and adhesive nature of the consumer contracts.

Leave to appeal was refused and the certification orders were left undisturbed.

The employer appealed a wrongful dismissal damages award where the employee received pension benefits during the reasonable notice period.

The majority held pension payments from a defined benefit plan are generally deferred compensation and not indemnity for wage loss, so they are not deducted as a compensating advantage.

It emphasized that collateral-benefit deductibility depends on the nature and purpose of the benefit, contributory characteristics, contractual intention, and policy considerations.

Applying those factors, the employee’s pension entitlement did not reduce damages payable in lieu of notice.

The appeal was dismissed, with dissenting reasons favouring deduction under a single-contract performance analysis.