COURT FILE NO.: CV-18-589518-00CP

DATE: 2021/01/12

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

MARJORIE NELSON

Plaintiff

• and -

TELUS COMMUNICATIONS INC.

Defendant

Douglas Lennox and Careen Hannouche for the Plaintiff

Randy Sutton, Kate Findlay, and Felix Moser Boehm for the Defendant

Proceedings under the Class Proceedings Act, 1992

HEARD: December 14-15, 2020

PERELL, J.

REASONS FOR DECISION (Part 1)

A. Introduction. 2

B. The Wireless Code and the Wireless Services Agreement Act, 2013. 3

C. Is the Wireless Services Agreement Act, 2013 Ultra Vires?. 13

D. Is the Wireless Services Agreement Act, 2013 Inoperative by the Doctrine of Paramountcy?. 17

E. Is the Wireless Services Agreement Act, 2013 Inoperative by the Doctrine of Interjurisdictional Immunity?. 20

F. Irwin Toy Ltd. v. Québec (Attorney General) 21

G. Directeur des poursuites criminelles et pénales c. Télus Communications inc. 22

H. Conclusion. 23

A. Introduction

[1] In this proposed national class action pursuant to the Class Proceedings Act, 1992,[^1] Marjorie Nelson sues Telus Communications Inc. She sues on behalf of Telus customers, excluding business customers, who between January 6, 2016 and October 1, 2018 (the class period) cancelled their Wireless Service Agreements with Telus. She sues for damages pursuant to s. 72 (1) of the Telecommunications Act[^2] and for refunds pursuant to sections 16 and 17 of the Wireless Services Agreement Act, 2013.[^3]

[2] Ms. Nelson alleges that the Class Members from across Canada are entitled to pro-rated refunds of prepaid charges. Ms. Nelson says that the Telus customers are entitled to a refund because they were overcharged contrary to:

a. the Telecommunications Act;

b. the Telecom Regulatory Policy 2013-271 (the “Wireless Code”) of the Canadian Radio-television and Telecommunications Commission (“CRTC”); and

c. the Wireless Services Agreement Act, 2013.

[3] Ms. Nelson brings a motion to have her action certified.

[4] In response to Ms. Nelson’s motion, Telus, brings a cross-motion. In its cross-motion, Telus argues, amongst other things, that the Wireless Services Agreement Act, 2013, is ultra vires the province of Ontario under the Constitution Act, 1867.[^4] In the alternative, it argues that if the Act is infra vires, then it is inoperative pursuant to the constitution law doctrines of paramountcy and interjurisdictional immunity.

[5] In these Reasons for Decision, I address Telus’ constitutional law arguments. These reasons are Part 1 of a trilogy of Reasons for Decision that are being released together. Part 2 addresses Telus’ cross-motion to have Ms. Nelson’s action stayed or dismissed on the jurisdictional grounds that the CRTC, but not the superior court, has substantive jurisdiction over Ms. Nelson’s claim.[^5] Part 3 addresses Ms. Nelson’s certification motion.[^6]

[6] The ultimate outcome of the motion and cross-motion is that Ms. Nelson has a certifiable class action to advance a claim under the Wireless Services Agreement Act, 2013 but not a claim for damages related to the Wireless Code of the Telecommunications Act.

[7] I note at the outset of Part 1 that the Ontario and the Federal governments were given notice of the constitutional challenge and neither decided to intervene to participate in the hearing of the constitutional challenge.

B. The Wireless Code and the Wireless Services Agreement Act, 2013

[8] In her proposed class action, Ms. Nelson advances a statutory cause of action pursuant to Ontario’s Wireless Services Agreement Act, 2013. Telus, however, submits that the Act, which was repealed subsequent to the class period, was ultra vires during the class period. In the alternative, Telus submits that the Class Members cannot rely on the Act because it is inoperative under the doctrines of paramountcy and interjurisdictional immunity.

[9] The federal government has made the CRTC the national regulator of the telecommunications industry. Historically, from a policy perspective, it appears that federal governments aimed to develop a telecommunications policy that would apply uniformly and nationally and promote a national Canadian identity. Section 7 of the Telecommunications Act sets out the policy objectives of the federal government. Section 7 states:

Section 7 (Canadian Telecommunications Policy)

Objectives

7 It is hereby affirmed that telecommunications performs an essential role in the maintenance of Canada’s identity and sovereignty and that the Canadian telecommunications policy has as its objectives

(a) to facilitate the orderly development throughout Canada of a telecommunications system that serves to safeguard, enrich and strengthen the social and economic fabric of Canada and its regions;

(b) to render reliable and affordable telecommunications services of high quality accessible to Canadians in both urban and rural areas in all regions of Canada;

(c) to enhance the efficiency and competitiveness, at the national and international levels, of Canadian telecommunications;

(d) to promote the ownership and control of Canadian carriers by Canadians;

(e) to promote the use of Canadian transmission facilities for telecommunications within Canada and between Canada and points outside Canada;

(f) to foster increased reliance on market forces for the provision of telecommunications services and to ensure that regulation, where required, is efficient and effective;

(g) to stimulate research and development in Canada in the field of telecommunications and to encourage innovation in the provision of telecommunications services;

(h) to respond to the economic and social requirements of users of telecommunications services; and

(i) to contribute to the protection of the privacy of persons.

[10] As part of the national regulation of telecommunications, Parliament empowered the CRTC to regulate the terms of the contracts of service. The CRTC has a broad and extensive jurisdiction over the terms of service provided by telecommunications carriers including the authority to decide whether the terms of service are best left to the private sector of competition in the telecommunications industry.

a. As the regulator, pursuant to the s. 24 of the Telecommunications Act, the CRTC has the authority to specify the terms of the contracts of service between a consumer and a wireless service provider.

b. Pursuant to s. 34 (1) of the Telecommunications Act, the CRTC may make a determination to refrain in whole or in part from invoking its authority under s. 24, where the CRTC finds as a question of fact that to refrain would be consistent with the Canadian telecommunications policy objectives.

c. Pursuant to s. 34 (2) of the Telecommunications Act, where the CRTC finds as a question of fact that a wireless service is or will be subject to competition sufficient to protect the interests of consumers, the Commission shall make a determination to refrain from specifying the terms of the contracts of service between a consumer and a wireless service provider to the extent that the CRTC considers appropriate.

[11] Sections 24 and 34 of the of the Telecommunications Act are set out below:

Section 24 (Provision of Services)

Conditions of service

24 The offering and provision of any telecommunications service by a Canadian carrier are subject to any conditions imposed by the Commission or included in a tariff approved by the Commission

Forbearance by Commission

34 (1) The Commission may make a determination to refrain, in whole or in part and conditionally or unconditionally, from the exercise of any power or the performance of any duty under sections 24, 25, 27, 29 and 31 in relation to a telecommunications service or class of services provided by a Canadian carrier, where the Commission finds as a question of fact that to refrain would be consistent with the Canadian telecommunications policy objectives.

Idem

(2) Where the Commission finds as a question of fact that a telecommunications service or class of services provided by a Canadian carrier is or will be subject to competition sufficient to protect the interests of users, the Commission shall make a determination to refrain, to the extent that it considers appropriate, conditionally or unconditionally, from the exercise of any power or the performance of any duty under sections 24, 25, 27, 29 and 31 in relation to the service or class of services.

Exception

(3) The Commission shall not make a determination to refrain under this section in relation to a telecommunications service or class of services if the Commission finds as a question of fact that to refrain would be likely to impair unduly the establishment or continuance of a competitive market for that service or class of services.

Effect of forbearance

(4) The Commission shall declare that sections 24, 25, 27, 29 and 31 do not apply to a Canadian carrier to the extent that those sections are inconsistent with a determination of the Commission under this section.

[12] In 2012, in response to widespread consumer dissatisfaction with various terms and conditions of wireless services, the CRTC held a hearing and ended its forbearance policy with respect to the terms of the contracts between consumers and the wireless service providers. In October 2012, the CRTC introduced consumer protection measures by declaring the Wireless Code (Telecom Regulatory Policy 2013-271), which came into effect on December 2, 2013.

[13] In Bell Canada v. Amtelecom Limited Partnership[^7] several wireless service providers unsuccessfully challenged the creation of the Wireless Code. The Federal Court of Appeal described the Code as responding to broad consumer dissatisfaction with various terms of service offered by wireless service providers.

[14] The Wireless Code is a code of conduct that regulates, among other things, the terms and conditions by which carriers provide wireless services to consumers and small businesses for the purposes of consumer protection. The Wireless Code governs the conduct of Wireless Service Providers (“WSPs”), including the Defendant, Telus. The introduction to the Wireless Code states:

The Wireless Code

The Canadian Radio-television and Telecommunications Commission (CRTC) has created this Wireless Code (the Code) so that consumers or retail mobile wireless voice and data services (wireless services) will be better informed of their rights and obligations contained in their contracts with wireless service providers (service providers).

The Wireless Code will

(i) make it easier for individual and small business customers to obtain and understand the information in their wireless service contracts;

(ii) establish consumer-friendly business practices for the wireless service industry where necessary; and

(iii) contribute to a more dynamic wireless market.

The Code applies to all wireless services …. All service providers must comply with the Coder. All sections of the Code apply to postpaid services. The following sections of the Code also apply to prepaid services: … G. 1-4 and …

If any part of the Code or the customer’s contract is ambiguous, or if it unclear how the terms of the Code or the contract are to be applied, then the Code and the contract must be interpreted in a manner that is favourable to the customer.

A customer who believes that their service provider is not adhering to the Code should first try and resolve the problem directly with the service provider. If the customer is not satisfied with the service provider’s responsible, they can contact the Commissioner for Complaints for Telecommunications Services Inc. (CCTS) as follow:

[address, website, phone numbers, fax, email of the CCTS]

[15] Section G of the Wireless Code regulates cancellation fees. Section G of the Wireless Code states:

G. Contract cancellation and extension

1. Early cancellation fees — General

(i) If a customer cancels a contract before the end of the commitment period, the service provider must not charge the customer any fee or penalty other than the early cancellation fee. This fee must be calculated in the manner set out in sections 2. and 3. below.

(ii) When calculating the time remaining in a contract to determine the early cancellation fee, a month that has partially elapsed at the time of cancellation is considered a month completely elapsed.

2. Early cancellation fees — Subsidized device

(i) When a subsidized device is provided as part of the contract,

a. for fixed-term contracts: The early cancellation fee must not exceed the value of the device subsidy. The early cancellation fee must be reduced by an equal amount each month, for the lesser of 24 months or the total number of months in the contract term, such that the early cancellation fee is reduced to $0 by the end of the period.

b. for indeterminate contracts: The early cancellation fee must not exceed the value of the device subsidy. The early cancellation fee must be reduced by an equal amount each month, over a maximum of 24 months, such that the early cancellation fee is reduced to $0 by the end of the period.

(ii) When calculating the early cancellation fee,

a. the value of the device subsidy is the retail price of the device minus the amount that the customer paid for the device when the contract was agreed to; and

b. the retail price of the device is the lesser of the manufacturer's suggested retail price or the price set for the device when it is purchased from the service provider without a contract.

3. Early cancellation fees — No subsidized device

(i) When a subsidized device is not provided as part of the contract,

a. for fixed-term contracts: The early cancellation fee must not exceed the lesser of $50 or 10 percent of the minimum monthly charge for the remaining months of the contract, up to a maximum of 24 months. The early cancellation fee must be reduced to $0 by the end of the period.

b. for indeterminate contracts: A service provider must not charge an early cancellation fee.

4. Trial period

(i) When a customer agrees to a contract through which they are subject to an early cancellation fee, a service provider must offer the customer a trial period lasting a minimum of 15 calendar days to enable the customer to determine whether the service meets their needs.

(ii) The trial period must start on the date on which service begins.

(iii) A service provider may establish reasonable limits on the use of voice, text, and data services for the trial period.

(iv) During the trial period, customers may cancel their contract without penalty or early cancellation fee if they have

a. used less than the permitted usage; and

b. returned any device provided by the service provider, in near-new condition, including original packaging.

(v) If a customer self-identifies as a person with a disability, the service provider must extend the trial period to at least 30 calendar days, and the permitted usage amounts must be at least double the service provider's general usage amounts for the trial period.

5. Cancellation date

(i) Customers may cancel their contract at any time by notifying their service provider.

(ii) Cancellation takes effect on the day that the service provider receives notice of the cancellation.

6. Contract extension

(i) To ensure that customers are not disconnected at the end of the commitment period, a service provider may extend a contract, with the same rates, terms and conditions, on a month-to-month basis.

(ii) A service provider must notify a customer on a fixed-term contract at least 90 calendar days before the end of their initial commitment period whether or not the contract will be automatically extended.

(iii) At the time that a service provider offers a customer a device upgrade, the service provider must clearly explain to the customer any changes to the existing contract terms caused by accepting the new device, including any extension to the commitment period.

[16] At the same time as the CRTC was enacting the Wireless Code under the Telecommunications Act, in 2013, the then Liberal Party government of Ontario introduced the Wireless Services Agreement Act, 2013. The first reading of the Wireless Services Agreement Act, 2013 took place in the Ontario Legislature on April 29, 2013.[^8] The Act came into force on April 1, 2014, and it was repealed effective October 3, 2019 by the then Conservative Party government of Ontario.[^9]

[17] The debates in the Ontario Legislature reveal that the purpose of the Wireless Services Agreement Act, 2013 was consumer protection for wireless customers. It is informative to note that Ontario was following the lead of other provinces that had already taken steps to address the complaints of wireless customers. Manitoba, Québec, and Newfoundland and Labrador have provincial statutes analogous to the Wireless Services Agreement Act, 2013.[^10]

[18] In Ontario, the government plainly revealed that its legislation was designed to be stronger and to fill gaps in the protections provided by the CRTC’s Wireless Code. In the debate in the Legislature on September 10, 2013, the Honourable Tracy MacCharles, then Minister of Consumer Services stated:[^11]

I said it before and I’ll say it again: The national code, if it was perfect, sure, we’d go for it. However, it isn’t. It’s an individual-complaint, voluntary kind of code. Our proposed bill is much stronger for protecting Ontarians. It deals with strong enforcement. It deals with all-in pricing, clear pricing. At the end of the day, like other provinces, we need to go forward with strong protection for consumers in Ontario, in the absence of anything federal that is robust enough for people in this province.

[19] For present purposes, the pertinent provisions of the Wireless Services Agreement Act, 2013 are set out below:

Interpretation and Application

Purpose

1. The purpose of this Act is to protect consumers who enter into agreements with suppliers for wireless services accessed from a cellular phone, a smart phone or any other similar mobile device.

Definitions

2. In this Act,

“consumer” means an individual acting for personal, family or household purposes and does not include a person who is acting for business purposes;

“wireless agreement” means an agreement between a supplier and a consumer in which the supplier agrees to provide wireless services that the consumer can access from a cellular phone, a smart phone or any other similar mobile device, whether or not the supplier agrees to provide goods to the consumer under the agreement.

Application of Act

3. (1) This Act applies in respect of all transactions relating to a wireless agreement if the transaction takes place on or after the day this Act comes into force and if the consumer or the person engaging in the transaction with the consumer is located in Ontario when the transaction takes place.

Application of Consumer Protection Act, 2002

5. (1) In addition to the provisions of the Consumer Protection Act, 2002 that apply to a wireless agreement and the parties to it, sections 6, 7, 11, 12, 92, 94, 98 to 101, 103, 107 to 115 and 117 to 120 of that Act apply to a wireless agreement and the parties to it, reading,

(a) references to a consumer agreement as references to a wireless agreement;

(b) references to that Act as references to this Act;

(c) references to matters that are prescribed as references to matters prescribed under that Act; and

(d) references to the regulations in those provisions, except for section 92 of that Act, as references to the regulations made under that Act and the regulations made under this Act.

Consumer Rights

Period of no billing

12. (1) A supplier under a wireless agreement shall not demand, request or accept payment for the services that the consumer does not receive under the agreement if,

(a) the supplier has provided goods to the consumer in connection with the agreement;

Cancellation by consumer at any time

16. (1) A consumer may, at any time and without any reason, cancel a wireless agreement by giving notice to the supplier.

Date of cancellation

(2) The cancellation takes effect on the later of the date the consumer gives notice of cancellation to the supplier or the date that the consumer specifies in the notice, which date cannot be later than the expiry date of the term of the wireless agreement if the agreement is for a fixed term.

Effect of cancellation

(3) Subject to this section, the cancellation terminates the rights and obligation of the parties under the wireless agreement effective from the date on which the cancellation takes effect.

No goods received free or at a discount, no fixed term agreement

(4) If the consumer cancels a wireless agreement with no fixed term and in respect of which the supplier provided no goods to the consumer free of charge or at a discount, the supplier shall not charge the consumer a cancellation fee and shall not demand, request or accept payment for the cancellation.

Same, fixed term agreement

(5) If the consumer cancels a wireless agreement with a fixed term and in respect of which the supplier provided no goods to the consumer free of charge or at a discount, the maximum amount that the supplier may charge the consumer as a cancellation fee is the lesser of,

(a) the sum of $50; and

(b) an amount representing not more than 10 per cent of the price of the services that were provided for in the agreement but not supplied by the date of cancellation, calculated as if the term of the agreement were 24 months.

Goods received free or at a discount, no fixed term agreement

(6) If the consumer cancels a wireless agreement with no fixed term and in respect of which the supplier provided goods to the consumer free of charge or at a discount, the maximum amount that the supplier may charge the consumer as a cancellation fee shall not exceed the amount determined by the following formula:

A – (A × B ÷ 24)

where,

A = the estimate that the supplier has made in good faith of the value of the economic inducement described in paragraph 10 of subsection 10 (1) and that the supplier is required to disclose under that paragraph,

B = the number of months that have elapsed under the agreement until the cancellation, counting the final part of a month, if any, as a whole month.

Same, fixed term agreement

(7) If the consumer cancels a wireless agreement with a fixed term and in respect of which the supplier provided goods to the consumer free of charge or at a discount, the maximum amount that the supplier may charge the consumer as a cancellation fee shall not exceed the amount determined by the following formula:

A – (A × B ÷ C)

where,

A = the estimate that the supplier has made in good faith of the value of the economic inducement described in paragraph 10 of subsection 10 (1) and that the supplier is required to disclose under that paragraph,

B = the lesser of 24 and the number of months that have elapsed under the agreement until the cancellation, counting the final part of a month, if any, as a whole month,

C = the lesser of 24 and the number of months in the term of the agreement, counting the final part of a month, if any, as a whole month.

Costs payable on cancellation

(8) If the consumer cancels a wireless agreement, whether it is for a fixed term or no fixed term, the supplier shall not charge the consumer any fee, charge, penalty, interest or other amount, other than,

(a) the cost of any services that the supplier has provided to the consumer under the agreement but for which the consumer has not paid in accordance with the agreement by the date of cancellation; and

(b) any cancellation fee permitted under subsections (5), (6) and (7). [emphasis added]

Right of action if no refund

17. (1) A consumer may commence an action in the Superior Court of Justice if,

(a) one of the following conditions applies:

(i) the consumer cancels a wireless agreement under section 11 or 16,

(ii) the consumer has made one or more payments under a wireless agreement if the agreement has been improperly amended, renewed or extended or if the supplier is not entitled to the payments under this Act or the regulations made under it; and

(b) the consumer has not received all of the required refund of payments from the supplier and has provided a demand for the amount owing. [emphasis added]

Amount of claim

(2) The amount that the consumer is entitled to claim in an action mentioned in subsection (1) shall be three times the part of the required refund that the consumer has not received. 2013, c. 8, s. 17 (2).

Exemplary or punitive damages

(3) In addition to making an order in an action mentioned in subsection (1), the court may order exemplary or punitive damages or whatever other relief that the court considers proper.

Minister’s regulations

(3) The Minister may make regulations for the purposes of subsection (2). 2013, c. 8, s. 18 (3).

Regulations

22. (1) The Lieutenant Governor in Council may make regulations,

(a) specifying anything in this Act that is described as being prescribed or specified in the regulations made under this Act;

(b) governing the application or non-application of the Consumer Protection Act, 2002 or the Electronic Commerce Act, 2000 or any part of those Acts to this Act;

(c) defining, for the purposes of this Act and the regulations made under it, any word or expression that is used in this Act but not defined in this Act;

(d) exempting any supplier, wireless agreement, goods or services, any combination of any of them or any class of any of them from any provision of this Act or the regulations, and prescribing conditions or restrictions that apply in respect of an exemption;

(e) governing advertising with respect to a wireless agreement, including regarding words and terms used in the advertising and regarding information that a supplier is required to ensure is included in the advertising in addition to the information described in subsection 8 (1);

(f) specifying the form and content of a wireless agreement or any notice, documents or disclosures required under this Act;

(g) specifying the form, manner and content of any disclosure that this Act requires with respect to a wireless agreement, including requiring that the disclosure be specific to the consumer under the agreement;

(h) requiring a supplier under a wireless agreement to provide to the consumer, for a trial period that is specified in the regulation, all the services that the supplier is required to provide to the consumer under the agreement and governing the rights and obligations of the parties to the agreement with respect to the trial period, subject to subsection (2);

(i) specifying the information that a supplier under a wireless agreement is required to include in a billing statement in respect of the agreement;

(j) governing information and additional notices that a supplier under a wireless agreement is required to provide to the consumer, including governing information in respect of the consumer’s usage of services provided under the agreement and costs for that usage and governing the time at which the supplier is required to provide the information and additional notices;

(k) requiring a supplier under a wireless agreement to have a system in place for providing advance notice to the consumer, at a time that is reasonably close to the time at which the consumer accesses services that will result in a cost payable by the consumer in addition to the minimum cost, that the consumer’s use of those services will result in the additional cost and governing the system;

(l) requiring a supplier to provide to a consumer under a wireless agreement notice with respect to roaming and other charges payable by the consumer for using the mobile device from which the consumer can access services under the agreement and governing the notice;

(m) prohibiting a supplier under a wireless agreement from charging or accepting payment of any portion of an amount for the services described in subsection (3) if the portion exceeds an amount specified in the regulation, unless the consumer has expressly consented to paying that portion;

(n) governing the consent described in clause (m);

(o) requiring a supplier to provide to a consumer under a wireless agreement the necessary information to remove limits imposed by particular wireless service providers on using the mobile device from which the consumer can access services under the agreement and governing the information;

(p) regarding the rights and obligations of the parties to a wireless agreement with respect to payment by the consumer for services that the consumer contracts for separately from the agreement but that are billed to the consumer as part of the billing for the agreement;

(q) governing the notice that a consumer must provide to a supplier when exercising a right to cancel a wireless agreement under this Act;

(r) governing rights and obligations of consumers and suppliers, in addition to those specified in this Act, with respect to wireless agreements;

(s) providing for any transitional matter necessary for the effective implementation of this Act or the regulations.

[20] The Wireless Services Agreement Act, 2013 comprehensively regulates: (a) disclosure in wireless services agreements (ss. 7 and 10); (b) advertising of wireless services (s. 8); (c) the service providers’ obligations before entering into a wireless services agreement (s. 9); (d) periods when a wireless services provider cannot charge for services (s. 12); (e) the amendment of wireless services agreements (s. 13); (f) renewal and extension of wireless services agreements (s. 14); and (g) cancellation of agreements and caps on cancellation charges (ss. 16, 18 - 20).

[21] The Wireless Services Agreement Act, 2013, empowers the Ontario government to make regulations: (a) to establish additional advertising standards (s. 22(1)(e)); (b) trial periods (s. 22(1)(h)); (c) billing statements (s. 22(1)(i)); (d) usage notifications (s. 22(1)(j)), and (e) caps on charges (s. 22(1)(m) and 22(3)).

[22] Civil remedies provided by the Wireless Services Agreement Act, 2013 include: (a) the cancellation of wireless services for inadequate disclosure (s. 11); (b) restitution of charges (ss. 11(7) and 15); (c) civil actions for refunds (s. 17(1)); (d) exemplary and punitive damages (s. 17(3)); and (e) the return of security deposits (s. 18).

[23] The Wireless Services Agreement Act, 2013 includes enforcement provisions (s. 21) that stipulate that if a person or corporation is guilty of an offence under the Act, he, she or it is subject to fines or imprisonment.

[24] Section 5 of the Wireless Services Agreement Act, 2013 incorporates Ontario’s Consumer Protection Act, 2002,[^12] which includes provisions which provide for: (a) the issuance of freeze orders (s. 110); (b) the issuance of compliance orders (ss. 109, 111, 112); (c) the negotiation of voluntary undertakings (s. 114); (d) the issuance of restraining orders (s. 115); and (e) the creation of liens on property (s. 119).

[25] In 2013, with the introduction of the Wireless Services Agreement Act, 2013 refunds were required for Ontario consumers who cancelled their wireless service agreements. However, it was not clear until 2016 how the Wireless Code of the Telecommunications Act dealt with refunds when a service was cancelled.

[26] In 2016, in Telecom Decision CRTC 2016-171 ^{(Quebecor application re refunds for cancelled services)}, the CRTC considered whether under the Wireless Code customers are entitled to pro-rated refunds when their agreements for wireless services are cancelled. In this decision, which was released on May 5, 2016, the CRTC held that although neither the Wireless Code nor the 30-day cancellation policy explicitly addressed refunds for cancelled services, nevertheless, consumers paying for both a cancelled service and a new service was contrary to objectives of the Broadcasting Act,[^13] and the Telecommunications Act. The CRTC concluded that service providers must provide refunds for cancelled wireless services billed in advance, and that these refunds must be pro-rated, based on the number of days left in the last monthly billing cycle after cancellation.

[27] Almost immediately, Telus applied for a review of Telecom Decision CRTC 2016-171 ^{(Quebecor application re refunds for cancelled services)}_,and it asked for an extension of time to implement the decision. The Public Interest Advocacy Centre (“PIAC”) and Videotron Ltd. intervened. They both opposed Telus’ request and the intervenors urged that service providers be required to provide pro-rated refunds as of the date of the issuance of Telecom Decision CRTC 2016-171; i.e., from May 5, 2016.

[28] In 2017, the CRTC reviewed and updated the Wireless Code; see Telecom Regulatory Policy CRTC 2017-200 ^{(review of Wireless Code)}, released on June 15, 2017. The CRTC made no change to Section G of the Wireless Code but noted at paragraph 335 in its decision that:

In Telecom Decision 2016-171, in response to an application from Videotron, the Commission clarified that the Code requires wireless WSPs to provide pro-rated refunds to customers for postpaid services following cancellation in circumstances where some or all of the monthly service fees are billed in advance.

[29] On June 1, 2018, in Telecom Decision CRTC 2018-194 ^{(Telus Request to vary Telecom Decision CRTC 2016-171)}, the CRTC held that Telus was required to pro-rate charges and refund customers for the number of days remaining in a billing cycle for existing and new contracts cancelled on or after October 1, 2018. The CRTC rejected Telus’ request that old existing contracts be exempted (grandfathered) from the refund requirement. The CRTC required Telus to implement the refund practice beginning October 1, 2018. The CRTC decision did not require – or not require - Telus to pay refunds for the contracts cancelled before October 1, 2018.

C. Is the Wireless Services Agreement Act, 2013 Ultra Vires?

[30] Telus submits that Ontario did not have the constitutional legislative authority to enact the Wireless Services Agreement Act, 2013 because, in pith and substance, it was legislation in relation to telecommunications, a matter of exclusive federal jurisdiction.

[31] Pursuant to sections 91 and 92 of the Constitution Act, 1867, legislative authority is divided between the federal government and the provinces. For the present purposes of analyzing the regulation of telecommunications, the relevant provisions of the Constitution Act, 1867 are sections 91 (29) and 92 (10), (13) and (16). Also relevant to the discussion are sections 91 (2), (5), (10), (15) and (16) which are examples of powers conferred on the Federal Government that, like telecommunications, have a pan-Canadian aspect. The relevant provisions are set out below.

POWERS OF THE PARLIAMENT

Legislative Authority of Parliament of Canada

91. It shall be lawful for the Queen, by and with the Advice and Consent of the Senate and House of Commons, to make Laws for the Peace, Order, and good Government of Canada, in relation to all Matters not coming within the Classes of Subjects by this Act assigned exclusively to the Legislatures of the Provinces; and for greater Certainty, but not so as to restrict the Generality of the foregoing Terms of this Section, it is hereby declared that (notwithstanding anything in this Act) the exclusive Legislative Authority of the Parliament of Canada extends to all Matters coming within the Classes of Subjects next hereinafter enumerated; that is to say,

92. The Regulation of Trade and Commerce

93. Postal service

94. Navigation and Shipping.

95. Banking, Incorporation of Banks, and the Issue of Paper Money

96. Savings Banks

97. Such Classes of Subjects as are expressly excepted in the Enumeration of the Classes of Subjects by this Act assigned exclusively to the Legislatures of the Provinces.

And any Matter coming within any of the Classes of Subjects enumerated in this Section shall not be deemed to come within the Class of Matters of a local or private Nature comprised in the Enumeration of the Classes of Subjects by this Act assigned exclusively to the Legislatures of the Provinces.

EXCLUSIVE POWERS OF PROVINCIAL LEGISLATURES

Subjects of exclusive Provincial Legislation

92. In each Province the Legislature may exclusively make Laws in relation to Matters coming within the Classes of Subjects next hereinafter enumerated; that is to say,

93. Local Works and Undertakings other than such as are of the following Classes:

(a) Lines of Steam or other Ships, Railways, Canals, Telegraphs, and other Works and Undertakings connecting the Province with any other or others of the Provinces, or extending beyond the Limits of the Province:

(b) Lines of Steam Ships between the Province and any British or Foreign Country:

(c) Such Works as, although wholly situate within the Province, are before or after their Execution declared by the Parliament of Canada to be for the general Advantage of Canada or for the Advantage of Two or more of the Provinces.

13. Property and Civil Rights in the Province.

14. Generally all Matters of a merely local or private Nature in the Province.

[32] The word “telegraph” in s. 92 (10) of the Constitution Act, 1867 includes telephones and all types of wireless communication.[^14] Parliament has legislative authority to legislate in relation to telecommunications undertakings pursuant to s. 91 (d) and 92 (10) of the Constitution Act. In 1905, in Toronto (City) v. Bell Telephone Co.,[^15] the Privy Council held that a telephone company whose undertaking extended beyond the limits of one province fell within s. 92(10)(a) of the Constitution Act, 1867 such that no provincial legislature was competent to interfere with its operations, as authorized by the Parliament of Canada. In 1989, in Alberta Government Telephones v. Canada (Canadian Radio-television and Telecommunications Commission)[^16] and in 1994, in Téléphone Guèvremont Inc. v. Québec (Régie des télécommunications),[^17] the Supreme Court of Canada held that a telephone company whose facilities are confined to a single province was a federal undertaking.

[33] Parliament also has legislative authority in relation to telecommunications pursuant to its authority under s. 92 of the Constitution Act, 1867 to make Laws for the Peace, Order, and good Government of Canada, the so-called “POGG” power. [^18]

[34] Parliament has exercised its legislative authority over broadcasting and telecommunications through statutes such as the Broadcasting Act,[^19] the Canadian Radio-television and Telecommunications Commission Act[^20] and the Telecommunications Act.

[35] In the immediate case, there is no doubt that the Federal Government has the exclusive legislative authority to regulate the telecommunications industry. The issue in the immediate case is whether the province has the legislative authority to enact the Wireless Services Agreement Act, 2013, which is aimed at regulating the wireless service agreements of the members of the telecommunications industry.

[36] To determine whether a province has the constitutional authority to enact a statute, the court must: (a) characterize the statute’s pith and substance; i.e., the court must determine what is the purpose of the statute; and (b) determine whether that subject matter is under a head of power assigned to the province under the Constitution Act, 1867. If the pith and substance of the statute falls under a head of power assigned to the provincial legislatures, then the statute is infra vires and valid legislation. However, if the statute’s pith and substance falls under a head of power over which the provincial legislatures do not have legislative authority, the law is ultra vires and invalid legislation.[^21]

[37] The pith and substance analysis of a statute involves an examination of both its purposes and its effects.[^22] The analysis of effects considers both the legal effects and also the practical consequences of the statute.[^23] However, merely incidental effects will not disturb the constitutionality of an otherwise infra vires law.[^24]

[38] To determine the purpose of the statute, the courts may consider both intrinsic and extrinsic evidence including the text of the statute, purpose clauses, parliamentary and legislative committee reports, debates, and the mischief or social problem that motivated the legislator to action.[^25]

[39] In the immediate case, Ms. Nelson submits that the purpose of the Wireless Services Agreement Act, 2013 was to protect consumers in their contractual relations with wireless service providers. She submits that it was consumer protection legislation for which there was legislative authority under s. 92 (10) (13) and (16) of the Constitution Act, 1867. In the immediate case, however, Telus submits that the Wireless Services Agreement Act, 2013 was a colourable attempt by Ontario to exercise authority over the telecommunications industry.

[40] I agree with Ms. Nelson’s submissions, and I disagree with Telus’ characterization of the Wireless Services Agreement Act, 2013.

[41] The Wireless Services Agreement Act, 2013 does not intrude upon how Telus operates, manages, or develops its wireless network. Subject to the regulation of the CRTC, Telus can build its network, conduct financial planning. and decide what it charges for its wireless services. While the Wireless Services Agreement Act, 2013 regulates the contractual aspects of how the wireless service provider carries on business, the Wireless Services Agreement Act, 2013 does not interfere with Telus’ rights to charge rates pursuant to the regulatory regime of the Telecommunications Act or pursuant to the forces of the marketplace where the CRTC forbears from setting a rate or tariff.

[42] The purpose of the Wireless Services Agreement Act, 2013 was to provide consumer protection for consumers of wireless services. This purpose falls within the authority of the provincial legislature under s. 92 (10) regarding trade within the province, s. 92 (13) regarding property and civil rights, and s. 92 (16) regarding matters of a merely local nature.

[43] Although in the immediate case the focused and singular target of the consumer protection purposes of the Ontario legislation was the telecommunications industry, which is a matter of federal jurisdiction, it does not make Ontario’s statute a matter of telecommunications. This truth is demonstrated by the Supreme Court of Canada’s decision in Bank of Montréal v. Marcotte,[^26] which I would apply to the circumstances of the immediate case.

[44] In Marcotte, class actions were brought against several banks relying on Québec’s Consumer Protection Act.[^27] The class actions were launched to recover foreign currency conversion charges imposed on credit card transactions in foreign currencies. In a decision upheld by the Supreme Court of Canada, the defendant banks were successfully sued for damages arising from its respectively contravening Québec’s consumer protection statute by not providing required disclosure of the conversion charges.

[45] Notwithstanding that the regulation of banks is a matter within the exclusive jurisdiction of the Federal Government, the Supreme Court rejected the banks’ argument that the Québec statute, which was aimed at consumer protection, was ultra vires or rendered inoperative by the doctrines of paramountcy or interjurisdictional immunity. The case at bar is analogous. Notwithstanding that the regulations of the telecommunications industry is a matter within the exclusive jurisdiction of the Federal Government, I reject Telus’ argument that Ontario’s Wireless Services Agreement Act, 2013 is ultra vires and as I shall discuss below, it is not rendered inoperative by the doctrines of paramountcy or interjurisdictional immunity.

[46] For the above reasons (and applying Irwin Toy Ltd. v. Québec (Attorney General),[^28] which I discuss below), I conclude that the Wireless Services Agreement Act, 2013 is infra vires the jurisdiction of the provincial legislature.

D. Is the Wireless Services Agreement Act, 2013 Inoperative by the Doctrine of Paramountcy?

[47] The doctrine of federal paramountcy provides that when there are valid, but inconsistent, federal and provincial laws, the federal law prevails and the provincial law is declared inoperative to the extent of the conflict.[^29] However, the mere fact that the Federal Government and a provincial government have legislated about the same matter does not create a conflict that precludes the infra vires provincial legislation from operating.[^30] There must be a conflict for the doctrine of paramountcy. Two forms of conflict trigger the doctrine of paramountcy: (1) operational conflict,and (2) frustration of purpose.[^31]

[48] Operational conflict arises when it is impossible to comply with both laws simultaneously.[^32] Duplicative legislation by itself does not raise issues of paramountcy.[^33] Unless it frustrates the purpose of the federal law, a more restrictive provincial law does not raise a conflict with the federal law.[^34]

[49] The circumstance that Parliament has legislated in respect of a matter does not entail that it intended to rule out any possible provincial action in respect of that matter.[^35] As Justice Dickson stated in Multiple Access Ltd. v. McCutcheon,[^36] which concerned concurrent federal and provincial statutes prohibiting insider trading of corporate securities:

In principle, there would seem to be no good reason to speak of paramountcy and preclusion except where there is actual conflict in operation as where one enactment says "yes" and the other says "no"; "the same citizens are being told to do inconsistent things"; compliance with one is defiance of the other.

[50] In the immediate case, there is no operational conflict. The Wireless Services Agreement Act, 2013 was introduced in 2013 and required refunds upon cancellation. At that time, there was no conflict with the Wireless Code, which did not expressly address the matter of refunds. In 2016, the CRTC made a policy decision that on a go-forward basis, refunds were required under the Wireless Code and thus there was consistency not inconsistency between the Wireless Services Agreement Act, 2013 and the Wireless Code.

[51] Telus, however, argues that between 2013 and 2018, when Telus was required to implement the refund practice, there was operative inconsistency between the Wireless Services Agreement Act, 2013 and the Wireless Code. because the CRTC forbore from imposing refunds on Telus until 2018.

[52] This argument does not work for CRTC because its regulatory decision under the Wireless Code would not operate as an operative inconsistency unless the CRTC ordered Telus not to pay refunds. Absent that kind of order, it cannot be said that compliance with the Wireless Services Agreement Act, 2013 would be non-compliance with the Wireless Code. If forbearance in imposing a refund requirement under the Wireless Code can be seen as the CRTC legislating in an area, this does not by itself establish that there is an inconsistency in operation or frustration of a federal purpose.

[53] It is informative to note that while Bell Mobility, one of Telus’ competitors, had supported Telus’ application to review and vary or clarify Telecom Decision CRTC 2016-171, Bell Mobility nevertheless revised its billing practices to ensure compliance with the CRTC's decision sooner than did Telus. By the end of 2016, its billing practices had been revised and Bell Mobility was issuing pro-rata refunds.[^37]

[54] Further, the CRTC did not purport to occupy exclusively the field of consumer protection associated with wireless service agreements. When the CRTC abstained from expressly requiring refunds in the Wireless Code, it left it to the law that governs the private sector marketplace for goods and services and those rules of law include consumer protection statutes like the Wireless Services Agreement Act, 2013.

[55] I conclude that there was no operating inconsistency that would trigger the paramountcy doctrine, and I turn to the matter of frustration of purpose as triggering the doctrine of paramountcy.

[56] Frustration of purpose arises when the provincial legislation is incompatible with the purpose of the federal legislation.[^38] As noted above, however, more restrictive provincial legislation in an area in which the Federal Government has legislated without more will not establish that a federal purpose has been frustrated.[^39]

[57] In the immediate case, Telus argues that the purpose of the Telecommunications Act is to have a comprehensive telecommunications policy that would be applied exclusively and nationally by the CRTC. In my opinion, Telus grossly overstates Parliament’s purpose in empowering the CRTC with the power to regulate a national telecommunications industry.

[58] It is a gross overstatement of Parliament’s purpose because it presupposes that Parliament left no role for the provinces and no role for provincial law in such matters as contracts and property in the province. While Parliament may have empowered the CRTC with the power to regulate the telecommunications industry and to establish national standards, Parliament did not envision leaving it the CRTC to fashion the law of contract. In this regard, substituting “wireless service providers” for banks, I repeat and adopt what Justices Rothstein and Wagner stated for the Supreme Court in Bank of Montréal v. Marcotte at para. 79:

79. […] If the [Wireless Service Providers’] argument amounts to claiming that the federal scheme was intended to be a complete code to which no other rules at all can be applied, that argument must also fail as the federal scheme is dependent on fundamental provincial rules such as the basic rules of contract. Just as the basic rules of contract cannot be said to frustrate the federal purpose of comprehensive and exclusive standards, if indeed such purpose exists, so too do general rules regarding disclosure and accompanying remedies support rather than frustrate the federal scheme.

[59] For the above reasons (and applying Irwin Toy Ltd. v. Québec (Attorney General),[^40] which I discuss below) but subject to the possible operation of the doctrine of interjurisdictional immunity, discussed next below, I conclude that Wireless Services Agreement Act, 2013 is constitutional and it was operative during the Class Period of Ms. Nelson’s proposed class action, i.e., I conclude that the provincial statute was not rendered inoperative by the doctrine of paramountcy.

E. Is the Wireless Services Agreement Act, 2013 Inoperative by the Doctrine of Interjurisdictional Immunity?

[60] Pursuant to the doctrine of interjurisdictional immunity, where a provincial statute or regulation impairs the exercise of a core federal power under the Constitution Act, 1867, the provincial enactment is inapplicable to the extent that it impairs the protected core of the federal power.[^41] The core means the basic, vital and essential content of the legislative power in question, the constituent provisions that are absolutely necessary to ensure the effective fulfillment of the purpose for which the power was conferred.[^42] Impairment occurs when the core federal power is seriously or significantly trammeled.[^43]

[61] Because the doctrine of interjurisdictional immunity is inconsistent with the prevalent contemporary approach of co-operative federalism that favours the respective operation of infra vires statutes of both the federal and provincial government, the interjurisdictional immunity doctrine is applied with restraint, is rarely available, and is generally reserved for situations already covered by precedent.[^44]

[62] In the immediate case, the impugned provisions of the Wireless Services Agreement Act, 2013 do not impair an activity that is vital or essential to the regulation of telecommunications. The Act does not interfere with the setting of rates or the establishment of service standards. The provisions of the Wireless Services Agreement Act address the matter of the terms of service agreements, a contractual matter that the CRTC was and is content to leave largely to the contract law of the provinces.

[63] The Wireless Services Agreement Act, 2013 does not regulate the pricing of services, the development or deployment of wireless equipment and technology or the development of a national wireless network and rather addresses the service providers fairly contracting with consumers, which is an area of the law within provincial legislative authority.

[64] Wireless service providers cannot avoid the application of provincial consumer protection law just because the statute is aimed at and touches on its operations, and this particularly true when it is inevitable that the wireless service provider’s operation requires the application of the common or civil law of contracts, which is a matter within the legislative authority of provincial governments.

[65] Moreover, in the immediate case, even if the impugned provisions of the Wireless Services Agreement Act, 2013 can be said to impair the protected core of the federal authority over telecommunications which, for the above reasons, I find not to be the case, it cannot be said that the impairment is significant. The effect of the Wireless Services Agreement Act, 2013 is to require the wireless service provider to provide refunds. The CRTC prospectively prescribes refunds and the CRTC could have retrospectively prescribed refunds and the fact that the Wireless Services Agreement Act, 2013 required refunds earlier than they were required by the CRTC is not a serious impairment of a core activity of the regulator of telecommunications in Canada.

[66] For the above reasons (and applying Irwin Toy Ltd. v. Québec (Attorney General),[^45] which I discuss below), I conclude that Wireless Services Agreement Act, 2013 is constitutional and it was operative during the Class Period of Ms. Nelson’s proposed class action.

F. Irwin Toy Ltd. v. Québec (Attorney General)

[67] As foreshadowed above, I also rely on Irwin Toy Ltd. v. Québec (Attorney General)[^46] in reaching my conclusions that the Wireless Services Agreement Act, 2013 is constitutional and that it was operative during the Class Period of Ms. Nelson’s proposed class action.

[68] In Irwin Toy, Québec’s Consumer Protection Act[^47] prohibited television advertising directed at children, and Irwin Toy, which had extensively used television advertising to market its products, was charged with contravening the Act. In defending itself from the charges, Irwin Toy sought a declaration that the legislation was ultra vires or alternatively that it was rendered inoperative by the doctrine of paramountcy or as contrary to the protection of freedom of expression protected by the Canadian Charter of Rights and Freedoms.[^48]

[69] Several broadcaster entities intervened and they supported Irwin Toy in challenging the Québec legislation. The intervenors argued that the impugned provisions of the Consumer Protection Act were functionally incompatible with the regular scheme put into place by the CRTC.

[70] On the matter of whether the provisions of Québec’s Consumer Protection Act were infra or ultra vires the legislative authority of the province, the Supreme Court of Canada was unanimous that the legislation was infra vires. Despite the significant impact on broadcasting, the Court concluded that the legislation was of general application enacted in relation to consumer protection. The Court concluded that the Québec legislation was not a colourable attempt to regulate broadcasting.

[71] Much the same thing can be said of the immediate case. Ontario’s Wireless Services Agreement Act, 2013 is essentially embedded in Ontario’s Consumer Protection Act, 2002 and it extends to wireless contracts and the consumer protections that are available to consumers of services. Ontario’s Wireless Services Agreement Act, 2013 is infra vires legislation.

[72] In Irwin Toy, the intervenors argued that television advertising is a vital part of a television broadcast undertaking and that the provisions of Québec’s Consumer Protection Act impaired a core function of the operation of a broadcaster and that the provisions of the statute were not just a restriction on the activities of advertisers seeking to have their advertisements broadcast but were an interference with broadcasters. The Supreme Court rejected this argument. The Court did not find a serious impairment of the broadcaster’s undertaking. In the immediate case, as discussed above, I come to a similar conclusion.

[73] In Irwin Toy, Irwin Toy and the intervenors argued that since the CRTC had adopted and required broadcasters to comply with the Broadcast Code for Advertising to Children, the doctrine of paramountcy applied to make the provincial legislation inoperative. The Supreme Court rejected this argument. Chief Justice Dickson and Justices Lamer and Wilson stated at paragraph 35 of their judgment:

35. Had the CRTC adopted the Broadcast Code for Advertising to Children not as "supplementary to all federal and provincial laws and regulations governing advertising", but rather as the sole and minimum standard to be applied, the question of conflict and functional incompatibility might have been a real one. But the federal and provincial schemes have been designed to exist side by side. […] Neither television broadcasters nor advertisers are put into a position of defying one set of standards by complying with the other. If each group complies with the standards applicable to it, no conflict between the standards ever arises. It is only if advertisers seek to comply only with the lower threshold applicable to television broadcasters that a conflict arises. Absent an attempt by the federal government to make that lower standard the sole governing standard, there is no occasion to invoke the doctrine of paramountcy.

[74] Once again, much the same thing can be said in the immediate case about the CRTC’s policy about refunds and the Wireless Code. In the immediate case, there was no attempt by the CRTC to impose a lower threshold for a wireless service provider to provide refunds when a pre-paid service was cancelled or to oust consumer protection standards imposed by a province. Absent an attempt by the CRTC to make that lower standard the sole governing standard, there is no occasion to invoke the doctrine of paramountcy. In the immediate case, notwithstanding Telus’ request to impose a lower standard, as in Telecom Decision CRTC 2018-194 ^{(Telus Request to vary Telecom Decision CRTC 2016-171)}, the CRTC ignored the request, and its silence cannot be taken as consent or approval.

G. Directeur des poursuites criminelles et pénales c. Télus Communications inc.

[75] Before concluding Part 1 it is necessary to make several comments about Directeur des poursuites criminelles et pénales c. Télus Communications inc., (DCPP v. Telus).[^49]

[76] In advancing her arguments in favour of the constitutionality of the Wireless Services Agreement Act, 2013, Ms. Nelson relied on the judgment of Justice Corriveau of the Superior Court of Québec in Directeur des poursuites criminelles et pénales c. Télus Communications inc., (DCPP v. Telus), which concerned the comparable provisions of the Québec Consumer Protection Act,[^50] which Québec had introduced three years before the CRTC introduced the Wireless Code and before Ontario enacted the Wireless Services Agreement Act, 2013.

[77] In DCPP v. Telus, Telus was charged with having contravened Québec’s legislation, and the prosecutor was seeking $4.0 million in penalties. The provincial court judge acquitted Telus on the basis that the provincial legislation was inoperative under the doctrines of paramountcy and interjurisdictional immunity. The provincial court judge did not rule on the vires of the statute but ruled the legislation inoperative. On an appeal by the prosecutor, Telus’ acquittal was reversed, and Justice Corriveau ruled that the legislation was infra vires and that it was operational.

[78] The DCPP v. Telus decision is obviously very helpful to Ms. Nelson, but Telus argued that it was all of not material, distinguishable, wrongly decided, and not a precedential case for Ontario. A great deal of advocate’s ink, sweat, and tears was spent in the parties’ factums and during oral argument on making submissions about DCPP v. Telus.

[79] For my part, I do not propose to weigh in the fierce debate between the parties because the above analysis does not need to rely on Justice Corriveau’s decision.

[80] Although, I was much helped by the analytical rigor and scholarship of Justice Corriveau’s superbly crafted decision, I made my own analysis of the Ontario legislation based on the submissions of the parties in the immediate case about the constitutional law principles. As it happens those principles are the same principles that grounded Justice Corriveau’s decision about the Québec legislation. Ultimately, I do not rely on her decision about a comparable Québec statute, and it is not for me to either adopt or approve her decision about the Québec statute.

H. Conclusion

[81] For the above reasons, I conclude that Wireless Services Agreement Act, 2013 is constitutional and that it was operative during the Class Period of Ms. Nelson’s proposed class action.

[82] The costs of this part of the certification motion are in the cause of Ms. Nelson’s certification motion. See Nelson v. Telus Communications Inc. (Part 3).[^51]

Perell, J.

Released: January 12, 2021

COURT FILE NO.: CV-18-589518-00CP

DATE: 2021/01/12

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

MARJORIE NELSON

Plaintiff

• and -

TELUS COMMUNICATIONS INC.

Defendant

REASONS FOR DECISION

PERELL J.

Released: January 12, 2021

[^1]: S.O. 1992, c. 6.

[^2]: S.C. 1993, c.38

[^3]: S.O. 2013, c.8

[^4]: Constitution Act, 1867 (U.K.), 30 & 31 Vict, c 3, ss. 91, 92 (10)(a)

[^5]: Nelson v. Telus Communications Inc. (Part 2), 2021 ONSC 23. In that cross-motion, Telus submits that the action should be stayed or dismissed because: (a) this court does not have jurisdiction or ought not to assume jurisdiction to decide the class action; (b) Ms. Nelson is attempting to re-litigate issues that were already resolved by the CRTC; and (c) Ms. Nelson has not pled a reasonable cause of action under the Telecommunications Act.

[^6]: Nelson v. Telus Communications Inc. (Part 3), 2021 ONSC 24

[^7]: 2015 FCA 126 at para 7.

[^8]: Bill 60, An Act to strengthen consumer protection with respect to consumer agreements relating to wireless services accessed from a cellular phone, smart phone or any other similar mobile device, 2nd Sess, 40 Parl., Ontario, 2013 (first reading 29 April 2013; assented to 6 November 2013.

[^9]: Repealed by Restoring Ontario's Competitiveness Act, 2019, R.S.O. 2019, c 4, Schedule 7.

[^10]: Consumer Protection Act, CCSM, c.200, Part XXII (Contracts for Cell Phone Services); Consumer Protection Act, CQLR c P-40., Division I.1 (Distance Service Contracts); Consumer Protection and Business Practices Act, SNL 2009, C.C-31.1, Part V, Division 3, (Distance Service Contracts).

[^11]: Ontario, Legislative Assembly, Official Report of Debates (Hansard), 40th Parl, 2nd Sess, No 55 (10 September 2013) at 2780 (Hon. Tracy MacCharles).

[^12]: S.O. 2002, c.30.

[^13]: S.C. 1991, c. 11.

[^14]: Rogers Communications Inc. c. Châteauguay (Ville), 2016 SCC 23; Téléphone Guèvremont Inc. v. Québec (Régie des télécommunications), 1994 130 (SCC), [1994] 1 S.C.R. 878; Alberta Government Telephones v. Canada (Canadian Radio-television and Telecommunications Commission), 1989 78 (SCC), [1989] 2 S.C.R. 225.

[^15]: [1905] A.C. 52 (P.C.).

[^16]: 1989 78 (SCC), [1989] 2 S.C.R. 225.

[^17]: 1994 130 (SCC), [1994] 1 S.C.R. 878.

[^18]: Capital Cities Communications Inc. v. CRTC, 1977 12 (SCC), [1978] 2 S.C.R. 141; CFRB Ltd v. Canada (Attorney General), 1973 788 (ON CA), [1973] 3 O.R. 819 (C.A.); Regulation & Control of Radio Communication in Canada, Re, 1932 354 (UK JCPC), [1932] A.C. 304 (P.C.).

[^19]: S.C. 1991, c. 11.

[^20]: R.S.C., 1985, c. C-22.

[^21]: Reference re Genetic Non-Discrimination Act, 2020 SCC 17; Desgagnés Transport Inc. v. Wärtsilä, 2019 SCC 58; Reference re Pan‑Canadian Securities Regulation, 2018 SCC 48; Rogers Communications Inc. c. Châteauguay (Ville), 2016 SCC 23; Reference re Securities Act (Canada), 2011 SCC 66; Kitkatla Band v. British Columbia (Minister of Small Business, Tourism & Culture), 2002 SCC 31; Reference re Firearms Act (Canada), 2000 SCC 31; Bell Canada c. Québec (Commission de la santé & de la sécurité du travail), 1988 81 (SCC), [1988] 1 S.C.R. 749; R. v. Morgentaler, 1993 74 (SCC), [1993] 3 SCR 463; Multiple Access Ltd. v. McCutcheon, 1982 55 (SCC), [1982] 2 S.C.R. 161.

[^22]: Rogers Communications Inc. c. Châteauguay (Ville), 2016 SCC 23; Reference re Securities Act (Canada), 2011 SCC 66.

[^23]: Rogers Communications Inc. c. Châteauguay (Ville), 2016 SCC 23; Kitkatla Band v. British Columbia (Minister of Small Business, Tourism & Culture), 2002 SCC 31; R. v. Morgentaler, 1993 74 (SCC), [1993] 3 SCR 463.

[^24]: Kitkatla Band v. British Columbia (Minister of Small Business, Tourism & Culture), 2002 SCC 31 at para. 54; Global Securities Corp. v. British Columbia (Securities Commission), 2000 SCC 21 at para. 23.

[^25]: Reference re Genetic Non-Discrimination Act, 2020 SCC 17; Rogers Communications Inc. c. Châteauguay (Ville), 2016 SCC 23; Canadian Western Bank v. Alberta, 2007 SCC 22; Reference re Firearms Act (Canada), 2000 SCC 31 at para. 17; Global Securities Corp. v. British Columbia (Securities Commission), 2000 SCC 21; Rizzo & Rizzo Shoes Ltd., Re, 1998 837 (SCC), [1998] 1 S.C.R. 27 at para. 35; Doré c. Verdun (Municipalité), 1997 315 (SCC), [1997] 2 S.C.R. 862.

[^26]: 2014 SCC 55.

[^27]: CQLR, c. P-40.1.

[^28]: 1989 87 (SCC), [1989] 1 S.C.R. 927.

[^29]: Desgagnés Transport Inc. v. Wärtsilä, 2019 SCC 58; Saskatchewan (Attorney General) v. Lemare Lake Logging Ltd., 2015 SCC 53; Marine Services International Ltd. v. Ryan (Succession), 2013 SCC 44; Bank of Montréal v. Marcotte2014 SCC 55 at para. 70; Canadian Western Bank v. Alberta, 2007 SCC 22; Rothmans, Benson & Hedges Inc. v. Saskatchewan, 2005 SCC 13 at para. 21; Multiple Access Ltd. v. McCutcheon, 1982 55 (SCC), [1982] 2 S.C.R. 161.

[^30]: Desgagnés Transport Inc. v. Wärtsilä, 2019 SCC 58 at para. 105; Bank of Montréal v. Marcotte 2014 SCC 55 at para. 72; Canadian Western Bank v. Alberta, 2007 SCC 22 at para. 74.

[^31]: Canada Post Corporation v. Hamilton (City), 2016 ONCA 767; Québec (Attorney General) v. Canadian Owners and Pilots Association, 2010 SCC 39; British Columbia (Attorney General) v. Lafarge Canada Inc., 2007 SCC 23.

[^32]: Multiple Access Ltd. v. McCutcheon, 1982 55 (SCC), [1982] 2 S.C.R. 161.

[^33]: Alberta (Attorney General) v. Moloney, 2015 SCC 51 at para. 26; Bank of Montreal v. Marcotte, 2014 SCC 55 at para. 80; Canadian Western Bank v. Alberta, 2007 SCC 22 at para. 72; Multiple Access Ltd. v. McCutcheon, 1982 55 (SCC), [1982] 2 S.C.R. 161 at p. 190.

[^34]: Alberta (Attorney General) v. Moloney, 2015 SCC 51 at para. 26; Marine Services International Ltd. v. Ryan (Succession), 2013 SCC 44 at paras. 76 and 84; Canada (Human Resources and Social Development), 2011 SCC 60 at paras. 32-33; Québec (Attorney General) v. Canadian Owners and Pilots Association, 2010 SCC 39 at paras. 67 and 74; Canadian Western Bank v. Alberta, 2007 SCC 22 at para. 103; Irwin Toy Ltd. v. Québec (Attorney General), 1989 87 (SCC), [1989] 1 S.C.R. 927 at p. 964.

[^35]: Marine Services International Ltd. v. Ryan (Succession), 2013 SCC 44; Canadian Western Bank v. Alberta, 2007 SCC 22 at para. 74.

[^36]: 1982 55 (SCC), [1982] 2 S.C.R. 161 at para. 48.

[^37]: Thompson v. Bell Mobility Inc., 2019 ONSC 7144.

[^38]: Bank of Montréal v. Marcotte 2014 SCC 55 at para. 73; Québec (Attorney General) v. Canadian Owners and Pilots Association, 2010 SCC 39 at para. 66.

[^39]: Marine Services International Ltd. v. Ryan (Succession), 2013 SCC 44 at para. 69; Québec (Attorney General) v. Canadian Owners and Pilots Association, 2010 SCC 39 at para. 66.

[^40]: 1989 87 (SCC), [1989] 1 S.C.R. 927.

[^41]: Calgary (City) v. Bell Canada Inc., 2020 ABCA 211; Desgagnés Transport Inc. v. Wärtsilä, 2019 SCC 58; Bank of Montréal v. Marcotte 2014 SCC 55 at para. 62; Marine Services International Ltd. v. Ryan Estate, 2013 SCC 44; PHS Community Services Society v. Canada (Attorney General), 2011 SCC 44; Québec (Attorney General) v. Canadian Owners and Pilots Association, 2010 SCC 39.

[^42]: Québec (Attorney General) v. Canadian Owners and Pilots Association, 2010 SCC 39 at para. 35; Canadian Western Bank v. Alberta, 2007 SCC 22 at para 77; Bell Canada c. Québec (Commission de la santé & de la sécurité du travail), 1988 81 (SCC), [1988] 1 S.C.R. 749 at p. 839.

[^43]: Bank of Montréal v. Marcotte 2014 SCC 55 at para. 62; Québec (Attorney General) v. Canadian Owners and Pilots Association, 2010 SCC 39 at para. 45

[^44]: Bank of Montréal v. Marcotte 2014 SCC 55 at para. 63; Canadian Western Bank v. Alberta, 2007 SCC 22 at paras. 66, 77.

[^45]: 1989 87 (SCC), [1989] 1 S.C.R. 927.

[^46]: 1989 87 (SCC), [1989] 1 S.C.R. 927.

[^47]: R.S.Q., c. P-40.

[^48]: Part I of the Constitution Act 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11.

[^49]: 2020 QCCS 1850, rev’g 2019 QCCQ 2143, leave to appeal granted, 2020 QCCA 1321.

[^50]: Consumer Protection Act, CQLR c. P-40.

[^51]: 2021 ONSC 24.