Court File and Parties

Court of Appeal for Ontario Date: 2021-10-21 Docket: C69093

Between: Marjorie Nelson, Plaintiff (Respondent)

And: TELUS Communications Inc., Defendant (Appellant)

Before: Strathy C.J.O., Nordheimer J.A. and Wilton-Siegel J. (ad hoc)

Counsel: Catherine Beagan Flood, Christopher DiMatteo and Natalie Cammarasana, for the appellant Douglas Lennox, Careen Hannouche and Andrew Cleland, for the respondent

Heard: October 20, 2021 by video conference

On appeal from: the order of Justice Paul M. Perell of the Superior Court of Justice, dated January 12, 2021, with reasons reported at 2021 ONSC 22, 2021 ONSC 23 and 2021 ONSC 24.

Appeal Book Endorsement

[1] The appeal is dismissed, substantially for the careful and thorough reasons of the motion judge.

[2] The provincial legislation at issue, the Wireless Services Agreement Act 2013 (WSAA), has been repealed. Except for the purposes of this class proceeding, the issue of the constitutional validity of the WSAA appears to be of no further consequence. None of Ontario, Canada or the CRTC has sought to intervene in this proceeding.

[3] The appeal has largely been a re-argument of the issues that were before the motion judge, without any reference to his reasons and without specifically identifying any error in his factual findings, or any error in his application of well-settled principles of constitutional law. It is evident from his reasons that the motion judge carefully considered the appellant’s arguments and the applicable law, and we agree with his conclusions that (a) the WSAA was within provincial legislative jurisdiction; and (b) it was not rendered inoperative as a result of either paramountcy or interjurisdictional immunity.

[4] Nor do we accept the appellant’s alternative submission that the class action should be stayed so that the CRTC can determine whether the plaintiff is entitled to a refund. The motion judge’s conclusion that the WSAA was valid provincial legislation that was operative during the class period does not permit any conclusion other than the plaintiff is entitled to assert her claim – that the appellant breached s. 16 of the WSAA by failing to provide refunds to class members – and that the Superior Court of Justice has jurisdiction over the proceeding.

[5] Costs to the respondent fixed at the agreed amount of $65,000, inclusive of disbursements and all applicable taxes.