DeWolf v. Bell Expressvu Inc., 2008 CanLII 63146 (ON SCDC)

COURT FILE NO.: 523/08

DATE: 20081120

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

B E T W E E N:

PETER DeWOLF

Plaintiff

• and -

BELL EXPRESSVU INC. and BELL EXPRESSVU L.P.

Defendants

No One Appearing

Hugh M. DesBrisay, for the Defendants

HEARD at Toronto: November 20, 2008

BELLAMY J.: (Orally)

1The defendant Bell brings a motion for leave to appeal the Order of Perell J. dated September 15, 2008, in which he dismissed the defendants’ motion for summary judgment.

2Motions for summary judgment were brought by both parties to this class action. Both were before Perell J. on September 15 as a motion and cross-motion. Perell J. granted the plaintiff’s motion and dismissed the defendants’ motion.

3The issue on the motions for summary judgment was whether an administration fee charged by the defendants to its customers constituted “interest” as defined in s.347 of the Criminal Code.

4Mr. DeWolf is a representative plaintiff for a class of former and current Bell customers who were charged one or more administration fees in the amount of $19 and $25 for payment of accounts after the due date, and which the class members paid up until the date of certification on February 6, 2008.

5In granting the plaintiff’s motion for summary judgment, Perell J. found that the administration fee was “interest.” Bell has an appeal as of right from that order granting that summary judgment and has delivered its notice of appeal from that order to the Court of Appeal.

6Bell now seeks leave to appeal the order dismissing Bell’s own motion for summary judgment. The plaintiff does not oppose this motion for leave to appeal. If leave is granted, it is Bell’s intention to apply under subsections 6(2) and 6(3) of the Courts of Justice Act to have this appeal determined by the Court of Appeal together with Bell’s pending appeal in that court so that the issues which are common to both appeals could then be determined together in a single hearing before a panel of the Court of Appeal.

7Even though the plaintiff does not oppose the motion, it is still incumbent on me to decide whether leave to appeal should be granted. In my view, it should be granted under s.62.02(4)(b) for the following reasons:

8First, there is good reason to conclude that the correctness of the order is open to very serious debate. In particular, the decision may not have been correct in concluding that the administration fee which was levied to recover collection costs from subscribers who were in breach of their obligation to pay for service constituted “interest.”

9Second, the proposed appeal involves matters of such importance that leave to appeal should be granted. If costs incurred to collect delinquent accounts constitute “interest” under the Criminal Code, suppliers may face criminal sanctions for recovering collection costs from delinquent customers whenever those costs, characterized as “interest”, result in an effective annualized rate in excess of 60%. It is important that this issue be resolved as it will affect not only the parties, but also suppliers generally who seek to recover collection costs from a delinquent payer.

10Finally, in this case, the Court of Appeal will be hearing the appeal of Perell J.’s order granting summary judgment in favour of the plaintiff. That appeal will address the same issue as is raised in this proposed appeal. In the circumstances, it is desirable that leave be granted so that the Court of Appeal, if it determines that the judge erred in holding the administration fee to be interest, will not be precluded from being able to finally dispose of the action by awarding summary judgment in favour of Bell.

11Leave to appeal is allowed.

COSTS

12Costs to be determined by the Court that hears the appeal.

BELLAMY J.

Date of Reasons for Judgment: November 20, 2008

Date of Release: November 24, 2008

COURT FILE NO.: 523/08

DATE: 20081120

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT