ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NOS.: CV-09-00360837-CP00
CV-08-00360838-CP00
DIVISIONAL COURT FILE NOS.: 570/14
596/14
DATE: 20151217

In the matter of a Claim under the
Class Proceedings Act, 1992, S.O. 1992, c. 6

BETWEEN:

Court File No.: CV-08-00360837 CP00
Divisional Court File No.: 570/14

Jason Corless
Plaintiff/Respondent

– and –

Bell Mobility Inc.
Defendant/Moving Party

AND BETWEEN:

Court File No.: CV-08-00360838-CP00
Divisional Court File No.: 596/14

Joel P. Rochon, Peter Jervis and Eliezer A. Karp, for the Plaintiff/Respondent

Timothy Buckley, Cheryl Woodin and David Elman, for the Defendant/Moving Party

Avraham Wellman
Plaintiff/Respondent

– and –

Telus Communications Company Tele-Mobile Company, Telus Communictions Inc..

Defendants/Moving Parties

Joel P. Rochon, Peter Jervis and Eliezer A. Karp, for the Plaintiff/Respondent

Paul Martin, D. Geoffrey Cowper, and Andrew Borrell, for the Defendants/Moving Parties

HEARD: September 16 & 17, 2015

LederER J.:

Introduction

[1] The Class Proceedings Act, 1992 is designed to play a particular and special role in our litigation process. It is by now trite to observe that actions carried out under its auspices are directed, not simply to resolving disputes between individuals, governments and other “persons” recognized by the law, but to broader interests: access to justice, judicial economy and behaviour modification. Classic among the circumstances this legislation is meant to confront are those where a large number of small claimants (too small to proceed on their own) confront a much larger and moneyed defendant: one who is able to take them on one by one and prepared to act in a manner that requires them to do so.[1]

[2] The telephone companies, who are the defendants in these actions, seek leave to appeal orders certifying class proceedings taken against them with respect to an aspect of their billing practices. The prospective class are customers who purchase services for their mobile telephones. They are charged “per minute”. At its root, the case asks what is meant by this. Is a minute simply the principle unit by which the parties keep track of the time spent on the telephone? On this basis, for a call that lasts 1 minute and 30 seconds (or 1.5 minutes), the user would be charged for that length of time. Alternatively, are customers to be charged by the minute? This would mean that for the purpose of billing, a call of 1 minute and 30 seconds would be rounded up to the nearest minute and the user charged as if the call had lasted two minutes. Put another way, the question is whether a cellphone user who purchases 100 minutes of time is entitled to 200 calls of 30 seconds each or only 100 calls of that length?

[3] The two motions seeking to certify these actions as class proceedings were heard together. In a decision, dated November 25, 2014, the motions were granted; the actions were certified. Like those motions, these ones, seeking leave to appeal, were heard together essentially as one motion.

[4] The defendants, the telephone companies, submit that these actions are not suitable to proceed under the Class Proceedings Act, 1992. Each contract is separate and independent. Each one may have been subject to individual discussion and negotiations between the provider and the user. They are susceptible each only to its own action. Counsel for Telus Communications Company, Tele-Mobile Company and Telus Communications Inc. (collectively “Telus”) went so far as to suggest that each customer had an individual contract. There would be thousands of them, each one different and requiring its own action if the users wished to proceed and allege billing that was contrary to their contracts with the companies. Counsel for Bell Mobility Inc. (“Bell”) was slightly more circumspect. It was not that each contract was different as proposed by counsel for Telus, but that each had to be interpreted individually to determine the approach to billing that each included.[2] The implication of these positions is that the words “per minute” may have different meanings when one contract or group of contracts is compared to others.

[5] One might wonder how this could be. The defendants say that, in understanding the meaning of these words, in any particular contract, one has to step beyond what the contract says and examine the context in which it was formed. I will return to this idea later in these reasons.

History

[6] Over time, the terminology applied to billing practices for cellular telephone services has changed. I say “terminology” because it is the meaning, implication and understanding of these terms during the Class Period (August 18, 2006 to July 1, 2010[3]) that informs the issues at stake in these actions. “The billing method by [wireless service providers] varied over time.”[4] The decision of the motion judge observes that mobile services commenced in Canada in 1985.[5] While it is not entirely clear, it seems that from the beginning until the mid-1990s, customers were charged based on “per minute billing”[6] described as “rounding up to the nearest minute for billing purposes”.[7] Per second billing “became popular in the mid-1990s”[8] and from that time until 2002, Telus and Bell “began to also offer voice services with per second billing”.[9] In 2002, Telus and Bell both ceased to offer per second billing to new subscribers and “reverted to per minute billing for all new contracts and rate plans”.[10] This occurred four years before the Class Period began. For those years and despite the fact that some “grandfathered” users retained per-second billing plans during the Class Period, “...per minute billing was the industry standard...”.[11]

[7] I pause to observe that it is difficult to understand how an industry standard (“per minute billing”) can have different meanings in different contracts, in theory, as many different meanings as there are contracts which include the term. Surely, if it is standard through the industry, the term can only have one meaning. If the term represents an industry standard, it suggests that coming to an understanding of what the words that describe that standard mean may be suitable as a common issue in an action governed by the Class Proceedings Act, 1992.

The Principal Issue

[8] The question is whether “billing per minute” was (1) a term of these contracts that, as used during the Class Period, allowed for charges to be rounded up to the nearest minute or whether doing so was a breach of the contracts; (2) whether the defendants’ reliance on that meaning was demonstrative of a deceptive practice and, thus, contrary to the Consumer Protection Act, 2002; and (3) whether the collection of charges on this basis resulted in unjust enrichment of Telus and Bell.

[9] For the purpose of these leave to appeal motions, the principal issue is whether the motion judge erred in finding there was a common issue concerning the meaning of “per minute billing”.[12]

[10] As put by counsel for Telus:

The judge then went on to identify the following common contract issues: when Bell and TELUS agreed to provide a certain number of ‘minutes’ of cell phone time, what did that mean? Was it minutes of actual cell phone use or something else? Was Bell/TELUS entitled to round up under the terms of the contract? Did the customer get the minutes that he or she bargained for?

These questions boiled down to a single issue: did the contracts require TELUS Mobility to bill per-second [by the second] or per-minute [by the minute] for wireless airtime?[13]

[11] As put by counsel for Bell:

The Decision [of the motion judge] fails to address how the trials of an amorphous group created by the proposed class who are in different positions because of when and how they entered into contracts with Bell Mobility can be conducted or managed within a singular common issues trial.[14]

[12] The motion judge explained the concept:

An issue is common where it constitutes a substantial ingredient of each class member’s claims and where its resolution is necessary to the resolution of each member’s claim. The commonality question should be approached purposively; the central question is whether certifying a class proceeding would avoid duplication of fact-finding or legal analysis. It is not necessary that common issues predominate over non-common issues or that the resolution of the common issues would be determinative of each class member’s claim…[15]

[13] Counsel for Bell pointed out that “a fundamental and necessary attribute of commonality” had been set out in an earlier case, as follows:

With regard to the common issues, ‘success for one member must mean success for all. All members of the class must benefit from the successful prosecution of the action, although not necessarily to the same extent.’ That is, the answer to a question raised by a common issue for the plaintiff must be capable of extrapolation, in the same manner, to each member of the class…[16]

[14] The defendants, Telus and Bell, submit that, in finding there was a common issue considering the meaning of “per minute billing”, the motion judge failed to address the latter point. This returns me to the assertion that the context in which these contracts were formed stands to separate them from each other. It is said that rather than examine whether or how the relevant facts could produce an answer common to all or many members of the class, the motion judge assumed a commonality and circumvented the necessity for individual inquiry. This proposition is central to the position taken on these motions by the defendants. Counsel for Bell refers to the following explanation:

Common issues ‘cannot be dependent upon individual findings of fact that have to be made with respect to each individual claimant’. They cannot be dependent upon findings which will have to be made at individual trials, nor can they be based on assumptions that circumvent the necessity for individual inquiries. As the Saskatchewan Court of Appeal has succinctly stated, ‘[a]n issue that can be resolved only by inquiry into the circumstances of each individual claim is not a “common issue,” even though the same question may be posed in each case’.[17]

[15] Counsel for Bell submitted that the motion judge failed to consider and account for the evidence of variability in the class.[18]

Test

[16] On a motion for certification, the class representative must show some basis in fact for each of the certification requirements set out in s. 5 of the Class Proceedings Act, 1992 other than the requirement that the pleadings disclose a cause of action.[19] Thus, the judge on a motion to certify need only find that there is some basis in fact that the pleadings raise a common issue.[20]

[17] A motion for leave to appeal is governed by rule 62.02(4) of the Rules of Civil Procedure. Leave may be granted where:

(a) there is a conflicting decision by another judge or court in Ontario or elsewhere on the matter involved in the proposed appeal and it is, in the opinion of the judge hearing the motion, desirable that leave to appeal be granted; or

(b) there appears to the judge hearing the motion good reason to doubt the correctness of the order in question and the proposed appeal involves matters of such importance that, in his or her opinion, leave to appeal should be granted.[21]

[18] If the decision under review shows a “conflict of principle” or if it is inconsistent on a point of law with other decisions in Ontario or elsewhere, the requirement of “conflicting decision” is satisfied.[22]

[19] To establish that there is good reason to doubt the correctness of the decision, the moving party need not “demonstrate that the motions judge was wrong or probably wrong but only that the correctness of the order is open to serious debate”.[23]

[20] To succeed, the defendants, as the moving parties, must show either that there is a decision which conflicts with, or reason to doubt the correctness of, the finding that there is some basis in fact that there is a common issue concerning the meaning of “per minute” as it applies to the contracts with which this case is concerned.

Analysis

[21] Without going further, this would seem to be a prototypical case for application of the procedures and protections found in the Class Proceedings Act, 1992. Thousands of individual users, with what are small individual claims, facing off against large corporate entities which, when the claims are considered collectively, would face a large potential liability which they may avoid if each of the plaintiffs is compelled to proceed on his or her own.

[22] The motion judge considered and certified the three causes of action (breach of contract, deceptive practice contrary to the Consumer Protection Act, 2002 and unjust enrichment). There was a common issue. What do the words “per minute billing” mean?

(a) Common Issue

[23] Counsel for Bell submits that these were not contracts of adhesion [24] and that whether they were is not in issue on this procedural motion and does not assist in the “commonality analysis”.[25] I do not agree. As a general understanding, a contract of adhesion is one that is so imbalanced it cannot be said to have been freely bargained. Often, contracts of adhesion are standard form contracts. They may offer goods or services without giving the consumer any true opportunity to negotiate terms to his or her benefit. The consumer, in this case the user, is unable to purchase the service unless he or she acquiesces to the form of the contract.[26]

[24] It may be that consumers in the purchase of cellular telephone services from both Telus and Bell are given the choice of various plans through which the service is provided. It may be that an opportunity is available to speak to a representative of the provider in arriving at an understanding of each of the plans, but the evidence does not suggest that there is any opportunity for any individual consumer to freely negotiate an individual contract. It is telling that, in suggesting that there are customers who continue with “per second billing”, counsel for Telus noted that “corporate customers could negotiate contracts with TELUS Mobility that provide either per-minute or per second plans.”[27] There is no suggestion that this choice was available to individual consumers. Those who are billed on a “per second basis” are excluded from the class as accepted and defined by the motion judge.[28] These are contracts of adhesion. This conclusion is confirmed by what counsel for Telus submitted was the documentary evidence of a contract. There are three documents. There is a contract. It was said that this refers to the number of minutes. Two contracts of Avraham Wellman, the plaintiff in the action in which Telus is the defendant, were referred to, one from 2006[29] (before he commenced the action) and one from 2009[30] (after the action began). Neither of these reveals any specific number of minutes or refers to billing undertaken on a per-minute basis. The only reference to “minutes” is the guarantee that, during the term of the agreement, Telus will not “decrease the number of minutes included in your monthly plan”. The same phrase appears in the 2009 document. The plan, the only one of the three documents which apparently refers to the number of minutes, is not “necessarily” provided to the customer. The third document is the “standard service terms”. This explanation supports the proposition that these are essentially standard form contracts with little, if any, room for negotiation.

[25] Counsel for Telus referred to examples of “Client Care call memorandums from 2002, 2003, and 2008”.[31] These memoranda are said to accurately represent the experience of Telus staff with client calls regarding per-minute billing. This does not detract from the idea that these are contracts of adhesion. First, of the three years mentioned, only 2008 falls within the class period.[32] Second, a review of these comments tends to demonstrate information sought and provided. There is little, if anything, that suggests negotiation.

[26] For the most part, in the years after 2002, the customers of these companies were billed on a “per minute basis”. This was the industry standard. The fact that some were billed on “per second plans” does not demonstrate or confirm that the contracts were the result of free or meaningful negotiation or that there is no common issue with respect to the billing terms. The issue is not whether some contracts referred to billing “per minute” and others “per second” but, rather, what did it mean to be billed per minute? Should those words be interpreted such that charges were properly to be rounded up to the next minute?[33]

[27] There is an assumption in the position adopted by the telephone companies. From the mid-1990s to 2002, clients were billed “per second”; that is to say, customers were charged to the second. These defendants assume that when the terminology changed in 2002 to “per minute”, this inexorably meant that the charging scheme included rounding up to the nearest minute. This may not be so. It could mean or reasonably have been taken by customers to mean something else. What about rounding down where the time in excess of a whole minute is less than 30 seconds? Could it be that “per minute” was not intended to change the manner of billing but was to clarify the measurement by which the time spent was calculated? The point of reference would be “minutes”.

[28] In taking the position that each contract may be different, Telus relies on MacLean et al. v. Telus Corporation and Telus Communications Inc.[34] In that case, following a merger of two telephone providers, the company that remained (Telus) determined that the sale of pre-paid calling time (referred to as “Prepaid Credit”) would be discontinued and, after a notice period had expired, the existing credits would be cancelled. “The plaintiffs allege[d] that Telus’s action in cancelling the Prepaid Credit on February 12, 2001, and not reimbursing the Prepaid Credit holders for the unused time amounted to a breach of contract with the plaintiffs…[35] Two of the three representative plaintiffs provided evidence that, in arranging for the purchase of the Prepaid Credit, they had received separate, individual and independent representations as to how long they had to use up the credits they were buying. One was told that the time was unlimited so long as he utilized at least one minute every 90 days to keep his cell phone activated. The other was told that the time was unlimited without reference to any condition that applied to the use of his telephone. The judge found that: “The evidence demonstrates that the Prepaid Credit was not sold in a uniform manner, with a uniform set of terms and conditions that applied to each and every customer.”[36] The judge went on: “I do not agree that this is a simple contract case. The plaintiffs cannot point to a contract which was common to all of the proposed representative plaintiffs.”[37] She concluded that: “...the issue of whether there was a breach of contract as a result of Telus canceling the Prepaid Credit... will have to be determined on the basis of each individual plaintiff’s circumstances.”[38]

[29] The situation there was different than the circumstances here. In that case, the judge reviewed the specific interaction between the company and the three prospective representative plaintiffs. In the cases that are the subject of these motions for leave to appeal, there appears to be a great deal of information that was generally available through which members of the public who were attentive to such matters could have learned about the approach these companies took as to the meaning of terms like “per minute” and “per second”.[39] This is quite distinct from the individual representations referred to in MacLean et al. v. Telus Corporation and Telus Communications Inc. I repeat, in this case, the contracts utilized are contracts of adhesion.

[30] The circumstances of the two representative plaintiffs were reviewed and relied on by the defendants.

[31] Avraham Wellman had been living in Israel. He returned to Toronto during 2006. He contracted with Telus. As a result of regular visits to Toronto, he was “for the most part familiar with what happens in Toronto”. He was aware of a plan utilized by Bell. It was “the urban plan which was $45 a month, unlimited talk in Toronto in the City and [he] was also aware of per second billing.” He would have thought that by “2006…or 2007 it was a standard practice in the industry.”[40] Subsequently, “sometime around 2007 or 2008”, he noticed that “all of the minutes [he] was being charged for were exact minutes…there was a lot of one-minute calls”. Later, he came to realize that “it was not to the nearest minute but in fact to the furthest or farthest minute.”[41] Unlike the plaintiffs in MacLean et al. v. Telus Corporation and Telus Communications Inc., there is nothing to suggest that Avraham Wellman had any individual discussion or negotiated any particular term with any representative of Telus. Counsel for Telus noted that Avraham Wellman entered into a new agreement with Telus in 2009, after he was aware that he was being billed on the basis of rounding his usage up to the next minute and after his action against Telus had been commenced.[42] This is consistent with the proposition that Avraham Wellman entered into an agreement knowing and accepting this manner of billing. It is also consistent with these being contracts of adhesion. A user, if he or she required the service, had no option but to accept the “industry standard”.

[32] Jason Corless first became a Bell subscriber on November 9, 2001. Initially, he subscribed to a plan which included unlimited week and local voice services. Other voice services were billed on a per second basis after the first minute. Bell moved from per second to per minute billing on August 19, 2002. Jason Corless was advised of this change by a direct mail notice sent to his account address in July 2000. From August 2002 until October 2005, Jason Corless retained his existing plan. He continued to receive per second billing after the first minute. On March 8, 2005, Jason Corless spoke to a Bell customer service representative and was advised that he was eligible for a hardware upgrade. He was told that in order to receive the upgrade, he would have to change to a per minutes plan. Jason Corless threatened to cancel his services because he was unable to obtain a free handset from Bell. He was offered a subsidized handset on the condition that he agreed to change to a per minute billing plan. He agreed.[43] As with Avraham Wellman, Jason Corless entered into this agreement accepting per minute billing. It appears clear that, if as part of this contract he was to obtain an updated handset, he had no option. There is no suggestion of negotiations that would have allowed Jason Corless to continue with per second billing.

[33] The kind of individual representations relied on by the judge in MacLean et al. v. Telus Corporation and Telus Communications Inc., representations that were made before and led to the formation of the contracts were not present in the cases being considered here.

[34] Nonetheless, the defendants hold to the view that each contract is separate and that no common issues can arise. To justify this position, it is submitted that it is necessary to look beyond the contracts to the context and circumstances surrounding their formation. All counsel referred to Sattva Capital Corp. v. Creston Moly Corp.[44] In that case, the defendant had agreed to pay the plaintiff a finder’s fee. The fee was valued at $1.5 million to be paid in shares of the defendant. There was a disagreement as to the date to be used to value the shares. The difference was significant ($0.15 per share vs. $0.70 per share) and dictated the number of shares to be delivered (11,460,000 vs. 2,454,000). The parties entered into arbitration. The plaintiff was successful. Ultimately, the matter found its way to the Supreme Court of Canada where the decision of the Arbitrator was upheld. There are some who accept that the case has significantly altered the manner in which contracts are to be interpreted.

[35] There is a shift away from the historical approach which considered the interpretation of contracts to be a question of law.[45] This was based on the perception that only the judge could be assured to be literate and, therefore, capable of reading the contract.[46] Suffice it to say, those days are long past. The overriding concern is to determine “the intent of the parties and the scope of their understanding”.[47] “To do so, a decision-maker must read the contract as a whole, giving the words used their ordinary and grammatical meaning, consistent with the surrounding circumstances known to the parties at the time of formation of the contract”.[48] The Supreme Court of Canada concluded:

… I am of the opinion that the historical approach should be abandoned. Contractual interpretation involves issues of mixed fact and law as it is an exercise in which the principles of contractual interpretation are applied to the words of the written contract, considered in light of the factual matrix.[49]

[36] It is on this basis that the telephone companies say that it is not enough to look at the contracts. A judge is obliged to go further and examine the surrounding circumstances. Counsel for Telus in referring to Sattva noted:

In Sattva, the Supreme Court held that the interpretation of contractual terms is a question of mixed fact and law and emphasize the importance of ‘surrounding circumstances’ to the interpretation of contracts. The Court held that ‘the nature of the evidence’ that can be relied upon under the rubric of surrounding circumstances will necessarily vary from case to case.[50]

[37] Every contract could be different because the surrounding circumstances would be different.

[38] As noted at the outset of these reasons, counsel for Bell remained more circumspect:[51]

It is also not [Bell’s] position that each contract is unique or individual but, rather, that there are a number of legally relevant facts which form part of the surrounding circumstances of some class members but not others and which would need to be considered in determining what it would be reasonable for an individual subscriber to have understood about the term in issue.[52]

[39] Either way, every contract must be understood or interpreted on its own. Without individual inquiry as to the surrounding circumstances, there could be no basis in fact demonstrating a common issue because the facts would not be known.

[40] It may be worthwhile to consider the broader implications of this understanding. As a practical matter, when the interpretation of any widely-utilized consumer contract is the subject of a prospective class action, it will be open to the same concern. There will always be the argument that the surrounding circumstances will have to be investigated. What did the consumer know before he or she signed on? Who at the company did he or she talk to? What advertisements or notices did they receive? What research did they do before the contract was formed? The ability of the Class Proceedings Act, 1992 to respond to these circumstances would be substantially hampered, if not lost.

[41] To my mind, Sattva does not support the overarching principle being suggested. It does not change the fundamental question being asked when contracts are to be interpreted. The interpretation of a contract is still dependent on what the contract says:

While the surrounding circumstances will be considered in interpreting the terms of a contract, they must never be allowed to overwhelm the words of that agreement. The goal of examining such evidence is to deepen a decision-maker’s understanding of the mutual and objective intentions of the parties as expressed in the words of the contract. The interpretation of a written contractual provision must always be grounded in the text and read in light of the entire contract. While the surrounding circumstances are relied upon in the interpretive process, courts cannot use them to deviate from the text such that the court effectively creates a new agreement.[53]

[42] Consideration of the surrounding circumstances is limited:

The nature of the evidence that can be relied upon under the rubric of ‘surrounding circumstances’ will necessarily vary from case to case. It does, however, have its limits. It should consist only of objective evidence of the background facts at the time of the execution of the contract (King, at paras. 66 and 70), that is, knowledge that was or reasonably ought to have been within the knowledge of both parties at or before the date of contracting…[54]

[43] What are the surrounding facts said to be of significance in this case and could they contribute to an understanding of the meaning of the words “per minute”? The “surrounding facts” referred to by counsel for the telephone companies reflect on which approach to billing applies. Is it “per minute” or “per second”?

[44] This is not the common issue identified by the motion judge.

[45] The question to be answered is not which words apply to describe the billing, but what the words of one of the two descriptions (“per minute”) mean, define or describe. The class definition excludes those billed under the other description (“per second”).[55]

[46] In the case of Telus, the factum filed on its behalf observes its contracts do not all share a common term addressing the manner of billing wireless usage. Some use “per minute” and some “per second”. This is directed to which of the two descriptions apply. The concern is the absence of a common, express, written term describing method of billing. It is said that the only way the plaintiff can succeed is if he is entitled to “per second billing.”[56] This does not deal with what “per minute billing” means. It confuses the meaning of those words with the alternative description.

[47] Consistent with its view that each contract must be the subject of individual interpretation, counsel for Bell:

• referred to the documents in which the term “per minute billing” appears (“direct mail notices”, “Service agreements”, “Itemized bills);[57]

• referred to places where, as part of offering services, references to “per second billing” and “per minute billing” were utilized in reviewing competitive options (subscribers’ in-store experience including flyers, device and plan brochures, and in-store displays, as well as individualized dealings with sales representatives) at both Bell stores and independent retailers;[58]

• referred to one place where it was said that services would be “billed in one minute increments” (Terms of Service used in 2002 and for two years thereafter, which is to say, two years and more before the class period began)[59]; and ,

• relied on advertising by competitors, media articles, online publications and discussion forums.[60]

[48] None of this deals with what “per minute” means in the context of contracts to which the class period applies. To my mind, there is nothing that would deepen the understanding of the words of a contract that refers to or includes “per minute billing”. There are few, if any, objective facts that demonstrably affected the making of these contracts. These surrounding circumstances are general in nature. There is not within them anything that suggests that the words “per minute billing” could have more than one meaning, or mean something different in one contract than in another. This being so, what they mean can be a common issue in respect of the contracts to which they apply.

[49] The motion judge got it right when she noted that the issue is not whether there was a contractual commitment made or implied. “The answer to those questions depended on the specific interaction between the defendant and each class member. That is not the case here.”[61] Here, the question is what do the words “per minute billing” mean where they appear in the contracts of concern.

[50] There is no reason to doubt the correctness of the decision of the motion judge insofar as it finds that there is a common issue concerning the meaning of “per minute billing”. The decision made by the motion judge does not conflict with MacLean et al. v. Telus Corporation and Telus Communications Inc. or Sattva Capital Corp. v. Creston Moly Corp. There is some basis in fact that supports the finding that the pleadings raise a common issue. These are contracts of adhesion. Billing “per minute” was the industry standard. These facts demonstrate an understanding that whatever “per minute” may mean, it is the same meaning in each of the contracts that rely on these words. The evidence does not support the suggestion that the contracts in issue and, in particular, those entered into by the two representative plaintiffs were subject to the sort of individual negotiation proposed by counsel for the telephone companies.

[51] Following the submissions, the parties alerted the court to the release of Barwin v. IKO Industries Ltd. et al.[62] and asked that it be considered. An opportunity was provided for brief written submission to be made. This is another case where, despite the fact that there were tens of thousands of contracts that gave rise to the claim, it was found to be inappropriate for prosecution as a class proceeding. The surrounding circumstances demonstrated that there was no common issue. Nonetheless, the case is of no assistance. The situation was different. In that case, the defendant had manufactured “organic shingles”. They were faulty. There were many claims. There were warranties, albeit with limits. Claims were settled. Releases were executed. In the meantime, a class action was commenced and certified. A Statement of Defence was provided. Among the defences was the plea that those class members who had provided a release as part of a settlement were estopped from making any claim relating to shingles that were the subject of a warranty claim.

[52] The decision concerns a motion to add a sub-class of members who accessed the limited warranty, received compensation pursuant to the warranty and signed a standard release form. What is evident in Barwin is that each settlement was different. The scope of the release was not the same. There were significant variations. Examples were listed by the judge who considered the motion:

• Variation in the Limited Warranties. Different warranties last for different periods of time, from 10 years to 35 years, with different lengths of iron-clad protection periods and different repair and replacement benefits.

• Variation in shingle complaints. Some homeowners complain about all of the shingles on their roof, while others complain about only a portion of them. Some homeowners allege their shingles failed prematurely and make functional complaints, while others have purely aesthetic concerns, such as a change in colour or shade.

• Variation in cause of shingle issue. Different information is provided about underlying causes of shingle problems, such as insufficient ventilation or improper installation (e.g., nailing the shingles too high).

• Variation in compensation provided. Compensation varies from case-to-case, depending on a range of factors that includes the year the claim is made and the nature of the complaint. Compensation can include replacement shingles, cash to cover the costs of labour, cash to cover the costs of a roof replacement that has already been installed, or another remedy tailored to the homeowner’s specific request. Importantly, the compensation provided can exceed or be different from the benefits provided for under the limited warranty.

• Variation in the specific causes of action mentioned. Some homeowners identify specific causes of action when they complain about shingles, suggesting they are mindful of them when they sign the release. For example, in correspondence with IKO, one homeowner referred to “negligently designed and manufactured shingles cause progressing damage to my roof”, while another hired a lawyer who indicated an intention to enforce his client’s implied warranty claim under the Ontario Sale of Goods Act.

• Variation in the nature and extent of discussions between IKO and the homeowners before signing the release. The evidence indicates such discussions varied significantly from case to case. For examples, some homeowners accept IKO’s first offer, while others exchange several pieces of correspondence before signing a release. Some homeowners contact IKO by phone to negotiate terms of settlement.

• Variation in the involvement of legal counsel. Some homeowners manage the process themselves; others hire lawyers to negotiate on their behalf throughout the claims process, or to sue IKO in Small Claims Court.[63]

[53] What is clear from these examples is that, in Barwin v. IKO Industries Ltd., there was a myriad of variations that applied to the releases and addressed their scope. There is nothing like that here where the question is only the interpretation of words found commonly in the contracts of the members of the class. In this case, there is a narrow issue. What do the words “per minute billing” mean? There is no suggestion that arises from the surrounding circumstances raised, or elsewhere, that the meaning of these words differs from one contract to another. The interpretation of these words is an issue common to those contracts to which they apply.

[54] Finally, on this issue, it should go without saying that a determination of what the words mean either by way of a motion or through a trial, would move the action forward. It may well be that some individual issues will remain.

(b) Causes of Action

[55] There being a common issue, each of the three causes of action certified by the motion judge are in play.

[56] If the words “per minute billing” do not mean that the provider is permitted to round charges up to the next minute, it stands to reason that doing so would be or at least could be in breach of the contract of which the words are a part.

[57] The motion judge found that the pleadings disclosed a cause of action for breach of contract.[64] There is no reason to doubt the correctness of this finding and no decisions which are conflicting have been referred to.

[58] In circumstances where the words “per minute billing” do allow for the rounding up, the plaintiffs plead that statements in advertising and representations to the public were misleading and contrary to the Consumer Protection Act, 2002.[65] They were misleading because the rounding up practice resulted in higher charges and fewer available minutes than those represented in the plans in question.

[59] The motion judge found that the pleadings disclosed a cause of action for breach of the Consumer Protection Act, 2002.[66] There is no reason to doubt the correctness of this finding and no decisions which are conflicting have been referred to.

[60] The plaintiffs plead that the defendants were enriched when they receive increased revenues as a result of the rounding up of the charges and from additional monthly fees. At the same time, it is said that the plaintiffs were deprived when they paid these excess charges and that there was no juristic reason for these payments.[67]

[61] The motion judge found that the pleadings disclosed a cause of action for unjust enrichment.[68] There is no reason to doubt the correctness of this finding and no decisions which are conflicting have been referred to.

(c) The Other Common Issues (aggregate damages)

[62] It follows that there is no reason to set aside any of the common issues identified by the motion judge in respect of each cause of action. I include in this the issue of “aggregate damages”. The Class Proceedings Act, 1992, s. 24(1) allows for damages to be awarded in aggregate:

The court may determine the aggregate or a part of a defendant’s liability to class members and give judgment accordingly where,

(a) monetary relief is claimed on behalf of some or all class members;

(b) no questions of fact or law other than those relating to the assessment of monetary relief remain to be determined in order to establish the amount of the defendant’s monetary liability; and

(c) the aggregate or a part of the defendant’s liability to some or all class members can reasonably be determined without proof by individual class members.

[63] The motion judge understood that, at the certification stage, the plaintiffs must only show that there is a “reasonable likelihood” that these pre-conditions would be satisfied.[69] She reviewed each of the three requirements. She found each was satisfied.[70] When this issue was considered in Sankar v. Bell Mobility Inc.,[71] the judge noted that it is “by no means essential that a common issue regarding aggregate assessment be certified…” as part of the certification decision. Despite this, he offered that it was appropriate to do this if the pre-conditions of s. 24(1) could be met. As a common issue, it would inform the parties of their disclosure obligations.[72] In that case, the judge concluded that, for one aspect of the claim (general breach of contract), it was “not reasonably likely that the s. 24(1)(c) hurdle can be cleared”.[73] That breach would require proof by individual class members because the mere fact that credits were forfeited was not enough. In the particular situation, the actions of the individual would have to be assessed to determine if, in the end, a loss would have been suffered. Counsel for Bell relied on this finding. In this case, the motion judge considered a report prepared by an expert that set out “a plausible methodology for calculating the effects of rounding-up on a class wide basis without requiring input by individual class members”.[74] She found that there was a reasonable likelihood that the pre-conditions found in s. 24(1)(c) could be met. She certified the issue of aggregate damages as a common issue.

[64] The test is low. There is no reason to doubt the correctness of the decision of the motion judge in this regard nor has a case that conflicts with this determination been brought forward.

d. National Class

[65] There is one way in which the two claims stand apart. In the action against Telus, the class is to be restricted to Ontario residents. In the action against Bell, a national class is proposed. The motion judge certified the national class. Bell objects. It submitted that there is reason to doubt the correctness of the decision of the motion judge. The concern is with respect to the allegation that the Consumer Protection Act, 2002 has been breached. The claims against Bell made, by prospective class members, in provinces other than Ontario “fall to be determined under the law in the provinces in which they reside”.[75]

[66] Counsel for Bell submitted that the consumer protection legislation in other provinces differs, sometimes in significant ways from the Consumer Protection Act, 2002. Counsel proposes that, in such circumstances, it would be inappropriate for an action in Ontario to determine the meaning and application of legislation from other provinces. In making this point, counsel relies on McNaughton Automotive Ltd. v. Co-Operators General Insurance Co.[76]:

The plaintiffs submit that it is open to an Ontario court to interpret and apply the laws of other jurisdictions. It is acknowledged that this can be done and that there may be circumstances where it would be appropriate. However, in these intended class actions where: (1) the contract was made outside of Ontario pursuant to the laws of another jurisdiction that are materially different; [page 128] (2) the defendant is licensed under and subject to the laws of the other jurisdiction; (3) the alleged breach occurred outside Ontario; (4) the claimants reside outside of Ontario; (5) the events which gave rise to the claim occurred outside Ontario; and (6) the damages were sustained outside Ontario, it seems to me the administration of justice would not be served by this court undertaking the task of interpreting the legislation of other provinces to determine whether the residents of those provinces have sustainable claims. In my view, that is a task for the courts of those jurisdictions in these circumstances….[77]

[Emphasis added]

[67] To my mind, this paragraph is not particularly helpful and is certainly not determinative. On the one hand, it concludes that, in the particular case, the administration of justice would not be served if the court (this court) undertook to interpret the legislation from other provinces. On the other hand, the judge recognized that it is possible for this to happen and that there are cases where it would be appropriate. The case can be distinguished. To begin with, it does not deal with the Consumers’ Protection Act, 2002. There is a case which sets McNaughton apart and presents the countervailing view. In McCutcheon v. The Cash Store Inc.[78], a motion was brought to certify a class action. The representative plaintiff had made a series of “short term (payday) loans” from the defendant Cash Store Inc. He alleged that the defendant had breached the Criminal Code by receiving interest at a criminal rate. He sought a declaration that the transactions were unconscionable and unenforceable at least to the extent of the illegality. The claim included allegations of breaches of other legislation including the Consumer Protection Act, 2002 and similar legislation in other provinces. The court considered McNaughton and the issue of whether it should exercise jurisdiction over class members who did not reside in Ontario:

… The claims based on s. 347(1) of the Criminal Code will not be affected by variations in the governing laws, the same general principles of contract law will apply in all jurisdictions other than Québec and the submission of plaintiff's counsel that the specific provincial statutes that have been pleaded are similar in their language and effect was not disputed. In these respects, the case is materially different to that in McNaughton Automotive Ltd. v. Co-Operators General Insurance Co. (2003), 66 O.R. (3d) 112, [2003] O.J. No. 2914 (S.C.J.), where Haines J. declined to exercise jurisdiction over non-resident members of a putative class. In my judgment, considerations of order and fairness militate in favour of extending the class to include persons outside Ontario so as to make it unnecessary for a separate action to be commenced on behalf of claimants in each of the other Canadian jurisdictions. It is, I believe, in the interest of class members to keep the number of law suits to a minimum and I see no unfairness to defendants in permitting this to be done by accepting a class that includes persons not resident in Ontario….[79]

[Emphasis added]

[68] Like McNaughton, the considerations in this case need to be balanced. Certainly, it recognizes that there are benefits to the acceptance of jurisdiction over out-of-province class members, but it did so where the similarity of the external legislation was not disputed as it is here. The motions judge relied on Barwin v. IKO Industries Ltd.[80] This is not the decision to which I have already referred but, rather, a motion seeking leave to appeal the certification that had been made. Leave was refused. The decision reflects on the concern that consumer protection legislation across the county is different. The decision on the certification motion was quoted in the decision for leave to appeal:

The consumer protection law claims are asserted solely in respect of those provinces where the legislation explicitly states that it applies in the absence of privity of contract, namely British Columbia, Saskatchewan, Manitoba, Quebec, and New Brunswick. During argument the defendants mounted no serious attack on these claims, and I see no reason why they should not proceed. Those claims will be determined under the consumer protection legislation of the particular province in which the class member resides[81].

[69] Even though the issue had not been raised on the certification motion, it was argued at the leave to appeal:

The seven issues identified in the decision of the motions judge refer to each of the statutes in each of the five provinces. The issues deal with concerns consistent with consumer protection legislation: whether the shingles are fit for the purpose, whether the shingles are durable for a reasonable length of time, whether the shingles are unreasonably dangerous because of a defect in design, materials or workmanship and whether the defendants engaged in unfair or deceptive practice in violation of particular provisions of certain of the identified statutes. Certification of these issues is consistent with the Class Proceedings Act, 1992. The statute is explicit: certification cannot be denied on the basis that the class includes a subclass whose members raise common issues not shared by all members of the class. If one were to accept the position of the defendants, the differences in the language in the consumer protection legislation would require that separate actions be commenced in each of the five provinces. This would defeat the purpose behind the Class Proceedings Act, 1992. It would deny the flexibility inherent in the process it provides. There is nothing that suggests that a trial judge could not provide answers that acknowledge and account for the difference in language found in the applicable statutes. There are cases where courts in Ontario have certified national classes where the claims are based on different provincial legislation.[82]

[70] There are powerful policy reasons to allow for the certification of a national class where the legislation in various provinces and territories may be different. There are cases, quite apart from McCutcheon and Barwin, where this has happened (see the references at fn. 82). There is no reason to doubt the correctness of the decision made by the motion judge. McNaughton does not conflict. It is “materially different”[83] and distinguishable.

Conclusion

[71] The motions are, in all their parts, dismissed

Observation

[72] I feel obliged to make the following observation. It may be that the surrounding circumstances raised by the defendants have significance and relevance but are misplaced in a motion opposing certification. The surrounding circumstances do not undermine the presence of the common issue: what do the words mean? However, they may provide the answer to that question. Certainly, the telephone companies are of the view that they demonstrate a method of billing that calls for the rounding up of charges to the next minute. It was not for the motion judge nor is it for me to determine whether this is correct. It may be that this issue would properly be the subject of a summary judgment motion. Can the issue of what the words mean be determined on the evidence available without reliance on a trial?[84] It may or may not be that, even if the words are interpreted as the defendants suggest, the claims for breach of the Consumer Protection Act, 2002 and unjust enrichment would remain, but even partial summary judgment may be useful in moving a dispute towards resolution. It would be for the parties to decide whether such a motion could be successful and should be brought.

Costs

[73] If the parties are unable to agree as to costs, I will consider written submissions on the following terms:

i. on behalf of the plaintiffs, no later than 15 days following the release of these reasons. Such submissions are to be no longer that 4 pages, double-spaced, not including any Costs Outline, Bill of Costs or case law that may be referred to.

ii. on behalf of the plaintiffs, no later than 10 days thereafter. Such submissions are to be no longer that 4 pages each, double-spaced, not including any Costs Outline, Bill of Costs or case law that may be referred to.

iii. on behalf of the plaintiffs, in reply, if necessary, no later than 5 days thereafter. Such submissions are to be no longer that 4 pages, double-spaced.

LEDERER J.

Released: 20151217