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 2)

A. Introduction. 2

B. Factual Background. 3

C. Discussion and Analysis. 8

1. Introduction. 8

2. Does Ms. Nelson have a Claim under s. 72 (1) of the Telecommunications Act?. 9

3. Should the Court Exercise its Jurisdiction with respect to Ms. Nelson’s Claim under s. 72 (1) of the Telecommunications Act?. 11

4. Is Ms. Nelson’s Claim under the Telecommunications Act re-litigation?. 13

D. Conclusion. 14

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 she and 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] Telus brings a cross-motion to have Ms. Nelson’s action stayed or dismissed. In that cross-motion, Telus submits that the action should be stayed or dismissed because:

a. the superior 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 decided by the CRTC; and

c. Ms. Nelson has not pled a reasonable cause of action under the Telecommunications Act.

[5] For the reasons that follow, I grant Telus’ cross-motion for the first and the third of Telus’ reasons for staying or dismissing the claim based on the Wireless Code of the Telecommunications Act.

[6] These reasons are Part 2 of a trilogy of Reasons for Decision that are being released together. Part 1 addresses Telus’ constitutional law argument that Ms. Nelson has no claim under Ontario’s Wireless Services Agreement Act, 2013.[^4] Part 3 is the Reasons for Decision on Ms. Nelson’s certification motion.[^5]

[7] The ultimate outcome of the motion and the cross-motion is that Ms. Nelson has a certifiable class action to advance a claim under Ontario’s Wireless Services Agreement Act, 2013 but not a national class action claim under the Wireless Code of the Telecommunications Act.

B. Factual Background

[8] Telus is a telecommunications company that provides wireline and wireless telecommunications services to individual subscribers, businesses, and governments across Canada. It is a mobile wireless service provider (“WSP”) within the meaning of the Wireless Code issued by the CRTC.

[9] Telus is regulated by the CRTC. 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 to specify the terms of the contracts of service between a consumer and a wireless service provider to the extent that the CRTC considers appropriate.

[10] 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.

[11] 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. Under the Telecommunications Act, the CRTC was authorized to forbear from regulating when standards could be left to the competition of the marketplace for telecommunications services, including wireless service contracts.

[12] In October 2012, the CRTC stopped forbearing and introduced consumer protection measures by declaring the Telecom Regulatory Policy 2013-271 ^{(Wireless Code)}, which came into effect on December 2, 2013.

[13] 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.

[14] For present purposes, the following provisions of the Wireless Code are relevant:

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]

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

3. Early cancellation fees — No subsidized device

4. 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

[15] 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.[^6] 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.[^7]

[16] The debates in the Ontario Legislature reveal that the purpose of the Wireless Services Agreement Act, 2013 was consumer protection for wireless customers. In this regard, it is informative to note that Ontario was following the lead of other provinces that had already taken steps to address complaints of wireless customers. Manitoba, Québec, and Newfoundland and Labrador have provincial statutes analogous to the Wireless Services Agreement Act, 2013.[^8] 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.

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

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.

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.

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.

[18] In 2014 and 2015, Telus sought the advice of the CRTC as to whether its billing practices complied with the CRTC’s requirements. It was advised that pro-rated refunds were not required; visualize:

a. On November 21, 2014, TELUS was advised by the CRTC: “This is to confirm that Broadcasting and Telecom Regulatory Policy 2014-576 does not require that a refund be provided for the time that a customer chooses not to use a service. It simply requires that the cancellation must take effect on the date requested by the customer”.

b. On March 6, 2015, Telus was advised by the CRTC: “The purpose of the 30-day cancellation policy (Broadcasting and Telecom Regulatory Policy CRTC 2014-576) is to ensure that a customer does not receive a monthly bill after cancelling their service except for services provided, such as overage charges accrued during the cancellation month. It is not to ensure that a customer receives a prorated refund for prepaid services.”

[19] It is notable that the CRTC in its responses to Telus did not mention Telecom Regulatory Policy 2013-271 ^{(Wireless Code)}.

[20] However, in 2016, in Telecom Decision CRTC 2016-171 ^{(Quebecor application re refunds for cancelled services)}, which was released on May 5, 2016, the CRTC considered whether under the Wireless Code, customers are entitled to pro-rated refunds when their agreements for wireless services are cancelled.

[21] In this brief 20 paragraph 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[^9] 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. The CRTC stated in paragraph 17 of its decision:

17. Accordingly, the Commission clarifies that, in line with its prohibitions of 30-day cancellation policies, service providers must not charge for a service that is not, and cannot be, provided following cancellation. Moreover, all service providers must provide refunds for retail wireless, local voice (including VoIP), Internet, and broadcasting distribution services following cancellation of such services when some or all of the monthly service fees are billed in advance. The refunds must be pro-rated, based on the number of days left in the last monthly billing cycle after cancellation. [emphasis in the original]

[22] 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.

[23] Meanwhile, while the CRTC was holding hearings on Telus’ review request, Ms. Nelson, an Ontario resident who had been a cellphone customer of Telus for many years, took steps to cancel her wireless service agreement. She had a month-to-month wireless service agreement. She paid on the 5th day of each month in advance. Her bill, dated November 5, 2017, charged her $60 for monthly services and $30 for data services for the period of November 6, 2017 to December 5, 2017. Thus, total charges billed in advance were $90.

[24] In early November 2017, Ms. Nelson’s service was suspended for non-payment of charges. She paid a reconnection fee, and then she cancelled her agreement and switched to Bell Canada, another service provider, around November 12 or 13, 2017. She did not use the Telus service after November 9, 2017.

[25] Telus, as was its practice, sent Ms. Nelson an email message confirming the cancellation of her contract. She subsequently paid the fees charged for closing her account. Ms. Nelson did not receive a refund for the unused portion of the charges for November 2017. Under Telus’ standard form contract, it was not obligated to issue a refund. Telus’ standard form agreement reads:

Any recurring charges that were billed at the beginning of your billing cycle or any credit balance under five dollars will not be refunded when your service is cancelled.

[26] 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.

[27] On January 5, 2018, Ms. Nelson commenced her proposed class action. She advanced two statutory causes of action; namely: (a) the statutory cause of action pursuant to s. 72 of the Telecommunications Act; and (b) the statutory cause of action pursuant to sections 16 and 17 of the Wireless Services Agreement Act, 2013.

[28] Section 72 of the Telecommunications Act states:

s.72 (1) Subject to any limitation of liability imposed in accordance with this or any other Act, a person who has sustained loss or damage as a result of any act or omission that is contrary to this Act or any special Act or a decision or regulation made under either of them may, in a court of competent jurisdiction, sue for and recover an amount equal to the loss or damage from any person who engaged in, directed, authorized, consented to or participated in the act or omission.

(2) An action may not be brought in respect of any loss or damage referred to in subsection (1) more than two years after the day on which the act or omission occurred.

(3) Nothing in subsection (1) or (2) applies to any action for breach of a contract to provide telecommunications services or any action for damages in relation to a rate charged by a Canadian carrier.

[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. Discussion and Analysis

1. Introduction

[30] Ms. Nelson has a claim for refunds that relies on s. 72 (1) of the Telecommunications Act. On its cross-motion, Telus argues that s. 72 (1) is not available to Ms. Nelson and the Class Members because of s. 72 (3), which excludes s. 72 (1) when the claim is for breach of a contract to provide telecommunications services or any action for damages in relation to a rate charged by a Canadian carrier.

[31] Ms. Nelson disputes that s. 72 (3) applies to the circumstances of the immediate case.

[32] If Telus is successful about the non-availability of s. 72 (1), then it is plain and obvious that Ms. Nelson does not have a reasonable cause of action based on the Telecommunications Act, although her claim under the Wireless Services Agreement Act, 2013 would remain to be determined.

[33] In the alternative, for the circumstance that Ms. Nelson is the victor in the debate between the parties about s. 72 (3), Telus argues that this court does not have jurisdiction or ought not to assume jurisdiction to decide the s. 72 (1) claim about the Wireless Code and the Telecommunications Act.

[34] In a mutually exclusive alternative for the circumstance that Ms. Nelson is the victor between the parties about s. 72 (3), Telus argues that her s. 72 (1) claim in the Superior Court should be stayed because Ms. Nelson is attempting to re-litigate issues that were already resolved by the CRTC.

[35] To foreshadow the discussion below, my conclusions are that s. 72 (3) of the Telecommunications Act does indeed apply to exclude the s. 72 (1) claim, although my reasoning disagrees somewhat from the arguments advanced by both Ms. Nelson and Telus.

[36] If my conclusion that s. 72 (3) of the Telecommunications Act is correct, then it is not necessary to consider Telus’ two alternative arguments. However, for completeness, and because the points were fully, indeed furiously, argued, and because there may be an appeal, I will go on to decide Telus’ other arguments. In that regard, my conclusions are that: (a) Telus’ argument about the superior court deferring to the jurisdiction of the CRTC succeeds, and Ms. Nelson’s action under s. 72 (1) of the Telecommunications Act, should be permanently stayed; but (b) Telus’ argument about re-litigation fails and would not provide a reason to stay the action.

2. Does Ms. Nelson have a Claim under s. 72 (1) of the Telecommunications Act?

[37] There was no serious dispute between the parties that but for s. 72 (3) of the Telecommunications Act, Ms. Nelson would have a claim under s. 72 (1). Thus, the dispute between the parties is about the interpretation and application of s. 72 (3), which Telus is relying on to exclude the s. 72 (1) statutory cause of action.

[38] Ms. Nelson’s argument that s. 72 (3) does not preclude her statutory cause of action was that she purposefully did not make a breach of contract claim and that she is not advancing an action for damages in relation to a rate charge. Telus’ rude counter-argument was that it was a “ludicrous” interpretation of s. 72 (3) to argue that Ms. Nelson’s action was not an action for damages in relation to a rate charge.

[39] In advancing her argument, Ms. Nelson candidly said that she had advertently not brought an action for breach of contract because she thought she would lose a breach of contract claim because of the terms of the contract that she had signed with Telus, which contained an anti-refund provision precluding a claim for refunds. So, instead she sued Telus relying on s. 72 (1) of the Telecommunications Act, and she was confident that she was not advancing an action for damages in relation to a rate charge.

[40] Although Telus made an obtuse argument that Ms. Nelson’s claim did not fit within s. 72 (1), astonishingly, Telus did not challenge Ms. Nelson about her action not being a breach of contract cause of action; rather, Telus expended considerable energy engaging in a debate about whether Ms. Nelson’s claim must be characterized as an action for damages in relation to a rate charge.

[41] I was not persuaded by Telus’ argument about actions in relation to rate charges, which had the fatal flaw that the argument would entail making every imaginable claim an action for damages in relation to a rate charge and thus s. 72 (3) of the Telecommunications Act would devour and extinguish s. 72 (1) of the Telecommunications Act.

[42] As a matter of statutory interpretation, it is presumed that every word in a statute has a role to play and a statute should not be interpreted to leave words superfluous or meaningless.[^10] In interpreting a statute, it is presumed that the constituent elements of a legislative scheme are meant to work together logically and teleologically, each contributing to the achievement of the legislator's goal without contradictions or inconsistencies among the constituent elements.[^11]

[43] I was also not persuaded by Ms. Nelson’s argument about the scope of s. 72 (3) insofar as it excluded actions for damages in relation to a rate charge. Her argument had a similar overreaching flaw because it would make every imaginable claim not an action for damages in relation to a rate change, and, thus, s. 72 (1) of the Telecommunications Act would devour and extinguish s. 72 (3) of the Telecommunications Act.

[44] However, what was clear to me, and plain and obvious, was that notwithstanding her candid disavowals, Ms. Nelson’s action was an action for breach of contract, and, therefore, it was caught by s. 72 (3) of the Telecommunications Act, which meant that the statutory cause of action in s. 72 (1) was not available to Ms. Nelson and the Class Members.

[45] If Ms. Nelson’s action is properly characterized, there are numerous authorities that establish that an action for breach of contract against a telecommunications service provider cannot be brought as a statutory cause of action under s. 72 (1) of the Telecommunications Act.[^12]

[46] The genuine purport of Ms. Nelson’s action was that she had paid for services that she had not received and that the anti-refund provision in her contract with Telus for services was illegal and non-enforceable. Ms. Nelson’s action was the equivalent of an action for services paid for and not received, and she actually does plead in paras. 34-36 of her Statement of Claim that the operative terms of Telus’ services agreements are unlawful; i.e., illegal, because of the violation of the Wireless Code.

[47] In my opinion, Ms. Nelson’s action is the type of action that Parliament intended by s. 72 (3) of the Telecommunications Act to not support a statutory civil law cause of action under s. 72 (1).

[48] In my opinion, while it was ingenious, Ms. Nelson’s ploy of characterizing her claim as being a purely statutory cause of action does not work for her. A different factual example makes the point. For example, if Ms. Nelson never cancelled her wireless service, but it was interrupted by a technology failure by Telus on November 12, 2017 and wireless service did not resume until December 5, 2017, Ms. Nelson would have a breach of contract claim for services paid for but not delivered, but she would not have a statutory cause of action under s. 72 (1). Subject to Telus’ jurisdictional arguments, discussed below, Ms. Nelson would simply advance an action in the Small Claims Court branch of the Ontario Superior Court and she would not need the statutory cause of action.

[49] Instead of relying on the statutory claim, had Ms. Nelson foregone the statutory claim, she could have done what the Representative Plaintiff did in Anderson v. Bell[^13] which was to advance a breach of contract claim and then she could resist Telus’ reliance on the no-refund provision in the contract as illegal precisely because it was contrary to the Telecommunications Act. In Anderson, consumers in the North West Territories were charged for a 911 service that was not actually available. The action was certified as a breach of contract claim and the Representative Plaintiff was successful at the common issue trial, and the judgment was affirmed on appeal.

[50] In any event, I conclude that Ms. Nelson does not have a claim under s. 72 (1) of the Telecommunications Act because her claim is in substance a breach of contract claim that s. 72 (3) of the Act precludes from being a statutory cause of action. Section 72 (3) does not preclude a common law breach of contract claim, but Ms. Nelson has not brought such a claim.

[51] Therefore, Ms. Nelson’s statutory claim based on the Telecommunications Act should be struck from her Statement of Claim.

3. Should the Court Exercise its Jurisdiction with respect to Ms. Nelson’s Claim under s. 72 (1) of the Telecommunications Act?

[52] If the above conclusion is incorrect and Ms. Nelson does have a statutory claim under s.72 (1) of the Telecommunications Act, then Telus argues that the court does not have jurisdiction to adjudicate the claim because the jurisdiction over the dispute is exclusively that of the CRTC, or if the court does have jurisdiction, then Telus argues that the court ought not to exercise its jurisdiction.

[53] Rule 21.01(3)(a) provides for the stay or the dismissal of an action where the court has no jurisdiction over the subject matter of the action.

[54] Assuming that the action is outside the scope of s. 72 (3) of the Telecommunications Act, it is palpably obvious that there is no merit to Telus’ argument that the Superior Court of Ontario does not have jurisdiction to address a statutory claim under s. 72 (1) of the Telecommunications Act.

[55] By its plain language, s. 72 (1) empowers the court to consider the civil statutory claim. Pursuant to s. 72 (1), a person who has sustained loss from an act or omission contrary to the Telecommunications Act may in a court of competent jurisdiction, sue for and recover an amount equal to the loss from any person who participated in the act or omission. Thus, Telus’ argument for an Order under rule 21.01 (3)(a) based on the CRTC having exclusive jurisdiction cannot succeed.

[56] However, in the circumstances of the immediate case, Telus’ argument that the Superior Court ought not to exercise jurisdiction has merit. In the immediate case, the predicate misconduct upon which Ms. Nelson relies is that Telus contravened the Wireless Code, which is the invention of the CRTC and a matter within the exclusive jurisdiction of the CRTC. Numerous authorities support the proposition that the CRTC is entitled to curial deference in relation to the discharge of its statutory responsibilities.[^14]

[57] In cases such as: Mahar v. Rogers Cablesystems Ltd.;[^15] 934691 Ontario Inc. v. Bell Canada;[^16] B & W Entertainment Inc. v. Telus Communications Inc.;[^17] Shaw Cablesystems (SMB) Ltd. v. MTS Communications Inc.,[^18] MTS Allstream Inc. v. Telus Communications Company;[^19] Allarco Entertainment 2008 Inc. v. Rogers Communications Inc.;[^20] Penney v. Bell Canada;[^21] Bazos v. Bell Media Inc.,[^22] and Iris Technologies Inc., et al. v. Telus Communications Company,[^23] courts have recognized that where the adjudication of a dispute would require a consideration of the legislative scheme administered by the CRTC, then the court ought not to exercise any jurisdiction to hear the matter even where some of the relief being sought may not precisely be available from the CRTC.

[58] In Mahar v. Rogers Cablesystems Ltd.[^24], Justice Sharpe stated at paragraphs 16-17 and 35:

16. I express no opinion as to the merit or lack thereof in the substantive claim of the applicant. It is, however, clear that the regulations under the Broadcasting Act and the interpretation of those regulations, are not only a central substantive component of the applicant's case, but indeed the focus of the relief that the applicant seeks. To decide this case would require a detailed consideration and interpretation of those regulations. That exercise would require consideration of how those regulations operate in the overall framework of the scheme established by the Act and by the Regulations as that scheme is administered by the CRTC.

17. I have concluded that given the nature of the claim and relief sought, this court does not have jurisdiction to dispose of the application and alternatively, that even if the court does have jurisdiction, it would not be an appropriate exercise of the discretion of the court to proceed with this matter with a view to granting declaratory relief. […]

[59] Ms. Nelson has based her claim on a contravention of the Wireless Code, which I repeat is an invention of the CRTC. Moreover, the matter of charges after cancellation and the matter of refunds from wireless service provider has been before the CRTC in: (a) Telecom Decision CRTC 2016-171 ^{(Quebecor application re refunds for cancelled services)}; and (b) Telecom Decision CRTC 2018-194 ^{(Telus Request to vary Telecom Decision CRTC 2016-171).} As I shall explain in the next section, I do not regard Ms. Nelson’s claim under the Telecommunications Act as re-litigation, but I do regard it as a claim under the Wireless Code of the Telecommunications Act, and that being the case, I would not exercise the court’s discretion to hear the case based on the statutory cause of action of s. 72 (1) of the Telecommunications Act.

[60] Thus, if I had not already determined that Ms. Nelson does not have a claim under s. 72 (1) of the Telecommunications Act, I would stay the claim that she has brought.

4. Is Ms. Nelson’s Claim under the Telecommunications Act re-litigation?

[61] The above analysis is dispositive and explains why Telus should succeed on its cross-motion. In this section, I consider Telus’ alternative argument that Ms. Nelson’s claim pursuant to s. 72 (1) of the Telecommunications Act should be stayed because it is re-litigation.

[62] In my opinion, this alternative argument does not succeed.

[63] For the argument to succeed, it would have to be shown that the CRTC has already decided the issue of whether there should be a refund if Wireless Service Providers (“WSPs”) contravened the Wireless Code.

[64] A reading of Telecom Regulatory Policy 2013-271 (the “Wireless Code”), which introduced the Wireless Code, reveals that the matter of refunds was not addressed by the CRTC in that policy decision.

[65] While a reading of Telecom Decision CRTC 2016-171 ^{(Quebecor application re refunds for cancelled services)} reveals that the CRTC did consider the matter of refunds, it did so prospectively only and it did not resolve the issue of whether there should be refunds retrospectively. In particular, strictly speaking, the Telecom Decision CRTC 2016-171 did not address whether there had been breaches of the Wireless Code and made only a prospective direction.

[66] While a reading of Telecom Decision CRTC 2018-194 ^{(Telus Request to vary Telecom Decision CRTC 2017-171)} reveals that the CRTC did consider the matter of refunds, it did so once again prospectively only and in that regard, it adjusted the go-forward date for Telus.

[67] In other words, the CRTC infused the Wireless Code with a rule that on a go-forward date, a wireless service provider should provide refunds when a consumer cancelled his or her contract. This was a policy decision by the CRTC and in effect the introduction of a new rule. It was not, strictly speaking, a ruling on whether there had been contraventions of the Wireless Code but rather was more a policy decision of how the Wireless Code would operate in the future. The CRTC was not deciding whether there should be refunds retrospectively for a breach of the Wireless Code.

[68] In considering the matter of refunds, the CRTC could as a matter of interpreting the existing Wireless Code have ruled that Telus and the other service providers should provide refunds for all cancellations after the introduction of the Wireless Code in 2016, but it is an error in strict logic to conclude that it follows from the CRTC making a ruling that the Wireless Code was silent on the matter of refunds and needed to be clarified that the CRTC had ruled that refunds were permitted.

[69] It appears that the CRTC did not require refunds as far back as the introduction of the Wireless Code as a policy matter that was in part motivated by the circumstance that it had misled Telus, which had made inquiries about refunds. The CRTC had given Telus some assurances that refunds were not required at all, which policy decision was either reversed or made for the first time in Telecom Decision CRTC 2016-171 ^{(Quebecor application re refunds for cancelled services)}.

[70] It should be recalled that the Wireless Code was introduced in 2013 and it was arguable that refunds should have begun in 2013, but it was not until 2016 and 2018 that the CRTC actually expressly ruled on the matter of refunds. It is at least interesting that at the hearing that led to the 2018 CRTC decision that Telus argued that if the CRTC did not make an express ruling negating retroactive refunds, Telus would be exposed to class actions for refunds, which is what indeed occurred. Notwithstanding Telus’ urgent plea that it should not be exposed to class actions, the CRTC did not make an express ruling excusing or discharging the service providers from providing refunds. The CRTC left the matter undetermined, or it might be said that the CRTC forbore and left to the private sector to regulate the matter of refunds for the period before the CRTC made its go-forward order prescribing refunds. The CRTC has never made a regulatory decision under the Wireless Code that Telus should not pay refunds when service agreements are cancelled and never released Telus from the spectre of a class action.

[71] I, however, do not go so far as Ms. Nelson does in suggesting the CRTC was agreeing that consumers would have a viable class action for refunds, but it does appear to me that the CRTC was at least not discharging or releasing the service providers from liability. No doubt the CRTC was aware that there was legislation in Manitoba, Ontario, Québec, and Newfoundland and Labrador. The CRTC in making its prospective ruling certainly did not expressly release Telus from claims for refunds after the 2013 introduction of the Wireless Code.

[72] I also do not go so far as Ms. Nelson does in suggesting that Telus was conceding that a class action for refunds was viable unless the CRTC made an express ruling about claims going back to 2013.

[73] Thus, I conclude that the CRTC has not already decided the issue of whether there should be a refund if a Wireless Service Provider (“WSP”) contravenes the Wireless Code. The issue that was litigated by the CRTC was when as a policy matter refunds should be a part of the Wireless Code. There is no re-litigation in the immediate case nor a collateral attack on the decision of the CRTC which was essentially about a go-forward policy and not about discharging a wireless service provider for charging for services that were paid for but not used because of the cancellation of the service agreement.

D. Conclusion

[74] For the above reasons, I conclude that Ms. Nelson’s claim under s. 72 (1) of the Telecommunications Act, should be struck.

[75] The costs of this cross-motion are in the cause of Ms. Nelson’s certification motion. See Nelson v. Telus Communications Inc. (Part 3).[^25]

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]: Nelson v. Telus Communications Inc. (Part 1), 2021 ONSC 22. Telus argues that the Wireless Services Agreement Act, 2013, is ultra vires the province of Ontario under the Constitution Act, 1867, Constitution Act, 1867 (U.K.), 30 & 31 Vict, c 3, ss. 91, 92 (10)(a). In the alternative, it argues that if the Act is infra vires, then it is inoperative pursuant to the doctrines of paramountcy and interjurisdictional immunity. [^5]: Nelson v. Telus Communications Inc. (Part 3), 2021 ONSC 24. [^6]: 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. [^7]: Repealed by Restoring Ontario's Competitiveness Act, 2019, R.S.O. 2019, c 4, Schedule 7. [^8]: 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). [^9]: S.C. 1991, c. 11. [^10]: R. v. Middelton, 2009 SCC 21 at para. 17; Placer Dome Canada Ltd. v. Ontario (Minister of Finance), 2006 SCC 20, [2006] 1 S.C.R. 715; Re Therrien, 2001 SCC 35, [2001] 2 S.C.R. 3; R. v. Proulx, 2000 SCC 5, [2000] 1 S.C.R. 61 at para. 28; Communities Economic Development Fund v. Canadian Pickles Corp. 1991 48 (SCC), [1991] 3 S.C.R. 388 at p. 408; Subilomar Properties (Dundas Ltd.) v. Cloverdale Shopping Centre Ltd., 1973 11 (SCC), [1973] S.C.R. 596 at p. 603. [^11]: Peel (Police) v. Ontario (Special Investigations Unit), 2012 ONCA 536 at paras. 26, 60; R. v. Morgentaler, 1975 8 (SCC), [1976] 1 S.C.R. 616 at p. 676. [^12]: Penney v. Bell Canada 2010 ONSC 2801; Allarco Entertainment 2008 Inc. v. Rogers Communications Inc. [2009] O.J. No. 5252 (S.C.J.); B & W Entertainment Inc. v. Telus Communications Inc. [2005] O.J. No. 4564 (S.C.J.). [^13]: Anderson v. Bell Mobility Inc., 2013 NWTSC 25; Bell Mobility Inc. v. Anderson, 2015 NWTCA 3. [^14]: Penney v. Bell Canada 2010 ONSC 2801 at para. 140; Sprint Canada Inc. v. Bell Canada, 1997 12379 (ON SC), [1997] O.J. No. 4772, affd. 1999 3296 (ON CA), [1999] O.J. No. 63 (C.A.); Bell Canada v. Canada (Canadian Radio-Television and Telecommunications Commission), 1989 67 (SCC), [1989] 1 S.C.R. 1722 at paras. 36-38 [^15]: (1995), 25 O.R. 93d) 690 (Gen. Div.). [^16]: [2002] O.J. No. 3211 (C.A.), leave to appeal to the S.C.C. ref’d [2002] S.C.C.A. No. 421. [^17]: [2005] O.J. No. 4564 (S.C.J.). [^18]: 2006 MBCA 29. [^19]: 2009 ABCA 372. [^20]: [2009] O.J. No. 5252 (S.C.J.). [^21]: 2010 ONSC 2801. [^22]: 2018 ONSC 6146. [^23]: 2019 ONSC 2502. [^24]: (1995), 25 O.R. 93d) 690 (Gen. Div.). [^25]: 2021 ONSC 24.