Court File and Parties
COURT FILE NO.: CV-18-591007-00CP DATE: 2019/12/10 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN: DWIGHT THOMPSON Plaintiff
- and - BELL MOBILITY INC. Defendant
Douglas Lennox for the Plaintiff Proceeding under the Class Proceedings Act, 1992
HEARD: In writing
PERELL, J.
Reasons for Decision
[1] This is a motion, in writing, on consent, to discontinue this proposed class action.
[2] In his Statement of Claim, which was issued on January 29, 2018, the Plaintiff, Dwight Thompson alleges that the Defendant, Bell Mobility Inc., charged illegal cancellation fees to certain wireless services customers contrary to s.72(1) of the Telecommunications Act, [1] and s.17 of the Wireless Services Agreements Act, [2] (which has now been repealed).
[3] Mr. Thompson took no steps to publicize the claim. There was no media coverage nor publication on the internet.
[4] In his proposed class action, Mr. Thomson alleged that if a customer paid for the coming month of cellphone service in advance and if he or she cancelled that service mid-month, then the customer should be entitled to a pro-rata refund or rebate on the monies advanced.
[5] Mr. Thompson cancelled his cellphone contract on February 22, 2017, and he believed that he did not receive a refund for unused services paid in advance following this cancellation and that he had been overcharged.
[6] However, Mr. Thomson’s contract of service with Bell Mobility provided at paragraph 39(a) that “Recurring Charges billed in advance will not be refunded upon cancellation of your Agreement”. In his Statement of Claim, Mr. Thompson alleges that paragraph 39(a) is illegal and contrary to regulatory decisions of the Canadian Radio-television and Telecommunications Commission (“CRTC”), He, therefore, asserted that he and the putative Class Members were entitled to assert a private right of action for damages for any overcharges under s.72(1) of the Telecommunications Act.
[7] After the proposed class action was issued, there were discussions between Mr. Thomson and Bell Mobility. Bell Mobility argued that paragraph 39(a) was legal in its regulatory filings with the CRTC and it took issue with the decisions by the CRTC on this topic. More importantly, as a result of these discussion, Mr. Thompson was satisfied that he and other putative class members had been overcharged as he had alleged.
[8] On the basis of these discussions and a review of the invoice he had received in March 2, 2017, Mr.Thompson came to understand that he simply had not noticed that he had actually received a pro-rata refund for unused service at the time of his cancellation of his cellphone contract. In truth, Bell Mobility had given him a credit for monies advanced, which credit was then applied as an offset to other charges.
[9] With respect to other putative Class Members, Mr. Thompson was satisfied that Bell Mobility had complied with Telecom Decision CRTC 2016-171, dated May 5, 2016, requiring pro-rata refunds.
[10] While Bell Mobility had supported an application by Telus to review and vary or clarify Decision CRTC 2016-171, Bell Mobility nevertheless revised its billing practices to ensure compliance with the CRTC’s decision. By the end of 2016, the billing practices had been revised and Bell Mobility was issuing pro-rata refunds.
[11] In these circumstances Mr. Thompson has sensibly decided not to proceed with his proposed class action, and he seeks an Order pursuant to s. 29 of the Class Proceedings Act, 1992 for leave to discontinue.
[12] Section 29 of the Class Proceedings Act, 1992 requires court approval for the discontinuance, abandonment, or settlement of a class action. Section 29 states:
Discontinuance, abandonment and settlement
- (1) A proceeding commenced under this Act and a proceeding certified as a class proceeding under this Act may be discontinued or abandoned only with the approval of the court, on such terms as the court considers appropriate.
Settlement without court approval not binding
(2) A settlement of a class proceeding is not binding unless approved by the court.
Effect of settlement
(3) A settlement of a class proceeding that is approved by the court binds all class members.
Notice: dismissal, discontinuance, abandonment or settlement
(4) In dismissing a proceeding for delay or in approving a discontinuance, abandonment or settlement, the court shall consider whether notice should be given under section 19 and whether any notice should include,
(a) an account of the conduct of the proceeding;
(b) a statement of the result of the proceeding; and
(c) a description of any plan for distributing settlement funds.
[13] A motion for discontinuance or abandonment should be carefully scrutinized, and the court should consider, among other things: whether the proceeding was commenced for an improper purpose, whether, if necessary, there is a viable replacement party so that putative class members are not prejudiced, or whether the defendant will be prejudiced. [3]
[14] In the immediate case, there is no prospect of the putative Class Members, who are oblivious of the action even having been started, being prejudiced. There is no sense in which any putative Class Members can be said to have been relying upon this action I, therefore, grant Mr. Mr. Thompson’s motion.
Perell, J. Released: December 10, 2019