Wellman v. Telus Communication Company, 2021 ONSC 7904

Background

This is an appeal from the order of Morgan J. dated September 22, 2020 dismissing Telus’ motion: Wellman v. Telus Communications Company, 2020 ONSC 5684. Telus had brought a motion for a stay of proceedings until Wellman reimbursed it $200,000 in costs that Telus had previously paid to Wellman pursuant to a costs award of the Superior Court. They take the position the costs award for the entire certification motion was set aside by the Supreme Court of Canada in its order dated April 4, 2019, with the decision reported at Telus Communications Inc. v. Wellman, 2019 SCC 19, [2019] 2 SCR 144. The costs order is set out at para. 105 of the decision.

2The motion judge interpreted the Supreme Court of Canada costs order as requiring Wellman to repay to Telus only $12,180 in costs.

3Telus seeks to set aside the motion judge’s decision, requests an order declaring that pursuant to the Supreme Court of Canada costs order, Wellman is required to repay $200,000 to Telus plus post-judgment interest, and seeks a stay of proceedings pending payment by Wellman.

4This matter started 13 years ago. It has been delayed by the interpretation motion, the leave to appeal motion reported at Wellman v. Telus Communications Company, 2021 ONSC 1473, and now by this appeal. A trip to the Court of Appeal and perhaps the Supreme Court of Canada would further delay the matter. It’s time to get on with it.

[5]

Analysis and Decision

Either party could have applied to the Supreme Court of Canada for clarification of the order. Both parties chose not to do so. Both parties take the position that the Supreme Court’s order is unambiguous. They can’t both be right. We are of the view that a motion to the Supreme Court would be the most efficient, expeditious, and proportionate method of determining exactly what the Supreme Court meant.

6As a result, this court orders that the parties jointly apply to the Supreme Court of Canada pursuant to Rule 81 and Rule 6 of the Rules of the Supreme Court of Canada, SOR/2002-156. The parties are to apply for clarification of the terms of the costs order issued by the Supreme Court, and an extension of time if necessary. The decision of Morgan J. is to be included in the application. Although directed as a joint application, the relief sought by each party may differ. This application must be made within 45 days.

7If the Supreme Court declines to deal with the matter, then the appeal to this Court will be expedited. This panel is not seized of the matter.

[8]

Costs

There shall be no costs of the hearing today.

Kristjanson J.

I agree CJSCJ Morawetz

I agree R. Gordon J.