Court File and Parties

COURT FILE NO.: CV-08-00360838-CP00 DATE: 20191127

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: AVRAHAM WELLMAN, Plaintiff – and – TELUS COMMUNICATIONS COMPANY, TELE-MOBILE COMPANY AND TELUS COMMUNICATIONS INC., Defendants

BEFORE: EM Morgan J.

COUNSEL: Joel Rochon, Peter Jervis, Golnaz Nayerahmadi, and Eli Karp, for the Plaintiff Andrew Borrell and Zohaib Maladwala, for the Defendants

HEARD: November 27, 2019

CASE CONFERENCE ENDORSEMENT

[1] This is the first case conference in this matter since April 4, 2019 when the Supreme Court of Canada issued its judgment in the appeal of the certification judgment issued by Conway J. on November 25, 2011. The upshot of the Supreme Court’s ruling is that the class is now limited to personal users of the Defendants’ cell phone services; commercial users are excluded from the claim.

[2] Counsel for the Defendants advises that his clients intend to bring two different motions. By describing the two proposed motions below, I do not mean to limit the parties in how they frame or respond to those motions or to opine in any way on their merits; I do so only in order to explain the basis of the schedule I have set.

[3] The Defendants’ first proposed motion is to enforce the costs ruling with respect to the judgment of first instance. The Supreme Court referenced this in its judgment, but the parties are in dispute as to what exactly the Court meant. The costs motion will likely be done on the basis of a record composed of the proceedings and rulings to date and on limited contentious facts. It should take no more than half a day to argue in court.

[4] The Defendants’ second proposed motion is to revisit the certification Order. Counsel for the Defendants submits that the Supreme Court ruling requires the class definition and possibly some of the common issues to be revised. Defendants’ counsel also takes the position that the Plaintiff’s position as representative Plaintiff may also now be cast in doubt. That motion may require a somewhat larger factual record. It will likely take a day to a day and a half to argue in court.

[5] Counsel have set aside April 6 and 7, 2020 to argue both motions. I indicated at the case conference that I would hope counsel can work cooperatively to ensure that all records and factums are exchanged and any examinations that need to take place are completed for both motions in a timely fashion in view of the motion dates.

[6] In the meantime, counsel for the Plaintiff would like to proceed with examinations for discovery. They are concerned that the action has taken a long detour into the appellate courts, and make a forceful argument that the time has come to push the matter forward. They propose the following schedule:

• Deadline to finalize the Discovery Plan – January 17, 2020

• Deadline for production of documents – March 16, 2020

• Completion of discoveries – June 10, 2020

[7] Counsel for the Defendants would prefer to wait until after the motions are complete to proceed with the discoveries. They are concerned that examinations not take place before it is determined what the proper scope of the issues is and who will be the representative Plaintiff. They also point out that while the appeal did consume a number of years, the Defendants cannot be blamed for this delay in view of the fact that they were successful in the appeal.

[8] I have reviewed the common issues certified by Conway J., which are reproduced in Schedule B of her reasons for judgment. Although I have not heard argument with respect to their content and therefore make no actual ruling in respect of those common issues, none of them on their face appear to address the issue of commercial vs. personal users. Rather, they appear to be phrased at a level of generality that applies regardless of the now pared down composition of the class.

[9] The one exception to this, as highlighted by Defendants’ counsel, is Common Issue 7, which refers to the claim for aggregate damages. Counsel for the Defendants says that the Supreme Court’s ruling with respect to commercial users, coupled with the judgment in Pioneer Corp. v Godfrey, 219 SCC 42, should have the effect of removing this question from the approved common issues list. Common Issue 7 asks:

Can damages be determined on an aggregate basis in whole or in part, and if so, by which methodology should damages be determined, and in what amount?

[10] It seems to me that the issues raised by the Defendants are for the most part legal issues. The discovery process can therefore proceed in tandem with the motions and need not wait for the outcome of the Defendants’ motions. Common Issue 7 may or may not be eliminated, but it does not appear to prompt more discovery than will already be conducted. Likewise, the question of class definition and determining who is in and who is out of the class will not impact on the scope of discoveries. That is primarily a question for the post-trial phase when and if liability is established.

[11] As for whether or not the Plaintiff will remain as representative Plaintiff, that will of course impact on who is examined on behalf of the Plaintiff. I would therefore recommend that the parties start the discoveries with the examination of the Defendants, and only after the Defendants’ motions are heard and ruled on should the Plaintiff be examined.

[12] In my view, the discoveries need not be delayed due to the Defendants’ proposed motions. Those motions will be heard on April 6-7, 2020. In the meantime, the parties are to proceed to discoveries in accordance with the schedule set out in para 6 above.

[13] I encourage counsel to work cooperatively in adhering to that schedule. As a first step, for example, I would hope that Plaintiff’s counsel can expeditiously produce a Discovery Plan appropriate to the post-Supreme Court version of the case and send it in draft to Defendants’ counsel for comments. I would likewise hope that Defendants’ counsel will be constructive in commenting on the Discovery Plan, and will not take it as an opportunity to ask for unnecessary changes which will prompt further delay.

[14] If counsel require my further input between now and April 6, 2020, they are always free to contact my assistant to arrange another case conference.

Morgan J.

Date: November 27, 2019