Kirsten L. Mercer

This appeal concerned a proposed class action by inmates and their families against Bell Canada and the Ontario government regarding allegedly unreasonable and unconscionable collect call rates from correctional facilities.

The motion judge had dismissed claims for an ultra vires tax and a Telecommunications Act breach, and permanently stayed other claims (unjust enrichment, consumer protection, unconscionable contracts, breach of fiduciary duty), deferring to the CRTC's jurisdiction.

The Court of Appeal upheld the dismissal of the ultra vires tax claim, finding the commissions paid to Ontario were proprietary/contractual charges, not taxes.

However, the Court substituted the permanent stay with a temporary stay for the remaining claims.

This was to allow the CRTC to first determine whether it had forborne from regulating these specific rates and, if not, to adjudicate their reasonableness, ensuring access to justice for the appellants if the CRTC declined jurisdiction.

The plaintiffs brought a proposed class action on behalf of prisoners and their families, alleging that Bell Canada and Ontario charged unconscionable rates for collect calls from provincial correctional facilities.

The plaintiffs sought certification, while the defendants brought cross-motions to stay the action, arguing the Canadian Radio-television and Telecommunications Commission (CRTC) had exclusive jurisdiction.

The Superior Court of Justice struck the plaintiffs' claims for an ultra vires tax and breach of the Telecommunications Act, finding it plain and obvious they could not succeed.

The court permanently stayed the remaining claims, concluding that the pith and substance of the dispute concerned telecommunications rates, which fall squarely within the specialized jurisdiction and remedial authority of the CRTC.

In a proposed class action regarding the rates charged for collect calls made by prisoners in Ontario correctional facilities, the plaintiffs brought a motion to strike portions of an affidavit sworn by an employee of the defendant telecommunications company.

The plaintiffs argued the affiant was improperly giving expert opinion evidence.

The court dismissed the motion, finding that the affiant was providing factual evidence regarding the regulatory framework and the operation of the telephone system, not expert opinion.