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 3)

A. Introduction. 2

B. Procedural and Evidentiary Background. 4

C. Facts. 5

1. The Representative Plaintiff. 5

2. The Class. 6

3. Telus Telecommunications Inc. 6

4. The Regulation of Wireless Service Agreement Cancellations. 6

D. The Proposed Class Action. 9

E. Certification: General Principles. 10

F. The Cause of Action Criterion. 12

1. General Principles. 12

2. Contravention of the Telecommunications Act and the Wireless Code. 12

3. Contravention of the Wireless Services Agreement Act, 2013. 12

4. Analogous Statutory Causes of Action. 14

G. Identifiable Class Criterion. 15

H. Common Issues Criterion. 15

1. General Principles. 15

2. Analysis and Discussion. 16

(a) Breach of sections 16 and 17 (1) of the Wireless Services Act, 2013. 16

(b) Aggregate Damages. 17

(c) Punitive Damages. 19

I. Preferable Procedure Criterion. 19

1. General Principles. 19

2. Analysis and Discussion. 20

J. Representative Plaintiff Criterion. 21

1. General Principles. 21

2. Analysis and Discussion. 21

K. Conclusion. 22

A. Introduction

[1] In this proposed national class action pursuant to the Class Proceedings Act, 1992,[^1] Marjorie Nelson sues Telus Communications Inc. (“Telus”). 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 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] For the reasons that follow, I grant Ms. Nelson’s certification motion with respect to her claim for the subclass advancing claims under Ontario’s Wireless Services Agreement Act, 2013.

[6] These reasons are Part 3 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.[^5] Part 2 addresses Telus’ cross-motion to have Ms. Nelson’s action based on the Wireless Code and the Telecommunications Act stayed or dismissed on jurisdictional grounds.[^6]

[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.

[8] With respect to Ms. Nelson’s aspirations for a national class action, as I shall note again below, Manitoba, Québec, and Newfoundland and Labrador have provincial statutes analogous to the Wireless Services Agreement Act, 2013[^7], but Ms. Nelson did not plead these statutes. Nevertheless, pursuant to s. 5 (4) of Class Proceedings Act, 1992, the court may adjourn a motion for certification to permit the parties to amend their materials or pleadings or to permit further evidence. I am, therefore, before making this decision final, adjourning the certification motion for thirty days to permit Ms. Nelson, if she is so advised, to bring a motion to amend her materials or pleadings to plead the provincial legislation analogous to the Wireless Services Agreement Act, 2013.

[9] If Ms. Nelson does not bring the motion, the decision is final in thirty days. If Ms. Nelson does bring the motion, this decision shall also be a final decision in thirty days, but I shall schedule the hearing of her motion at a case management conference. In practical effect, her motion will become a motion to certify additional causes of action and additional common issues.

[10] Thus, in any event, after thirty days, this decision shall be a final decision in so far as I have certified the claim under Ontario’s Wireless Services Agreement Act, 2013 but not the claim under the Wireless Code and the Telecommunications Act.

B. Procedural and Evidentiary Background

[11] On January 5, 2018, Ms. Nelson commenced her proposed class action. Her proposed Class Counsel is Klein Lawyers, LLP., an experienced and well-qualified class action law firm.

[12] The proposed class definition is:

All persons in Canada who had monthly agreements for wireless service with the Defendant and who cancelled that agreement during the Class period.

[13] The class definition, as proposed in the Plaintiff’s Notice of Motion, was delivered to the Defendant on March 22, 2019, and it included business customers. On April 4, 2019, the Supreme Court of Canada released its reasons in TELUS Communications Inc. v. Wellman.[^8] Because of this decision, it is appropriate to exclude business customers from the class definition.[^9] Thus, the definition should be modified to add the following exclusion:

Excluded from the Class are the Defendant’s business customers.

[14] There is also a proposed subclass of Ontarians with claims under the Wireless Services Agreement Act, 2013. The proposed Ontario subclass is defined as follows:

All individuals who, for personal, family or household purposes, had monthly agreements for wireless service with the Defendant in Ontario and who cancelled that agreement during the Class Period.

Excluded from the Class are the Defendant’s business customers.

[15] The Class Period starts on January 6, 2016 and continues until October 1, 2018.The Class Period starts two years before the commencement of this action, consistent with the limitation periods applicable to the Telecommunications Act and the Wireless Services Agreement Act, 2013 and runs until October 1, 2018, at which time Telus changed its billing practices and began to provide refunds.

[16] Ms. Nelson advances 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.

[17] On March 9, 2020, Ms. Nelson brought her motion for certification. Her motion was supported by:

• Her affidavit dated February 14, 2018. She was cross-examined on September 16, 2020 and September 24, 2020.

• The affidavit of David Andrews dated July 16, 2020. Mr. Andrews is the retired Chairman of the Department of Statistics at the University of Toronto and the statistical advisor for Thomson Data Analysis. He was retained to provide an expert report and to opine how a methodology might be designed using the sampling of Telus’ business records to estimate the amount of the refund to Class Members, assuming a refund was owed. He was cross-examined on September 17, 2020.

• The affidavits of Mark Lewis dated March 21, 2019 and July 30, 2020. Mr. Lewis is a partner of the Toronto law firm Lewis Birnberg Hanet, LLP. He has been practising broadcasting and telecommunications law for forty years. He was cross-examined on September 21, 2020.

• The affidavit of Erro Soriano dated February 16, 2018. Mr. Soriano is the Managing Director of Duff and Phelps Canada Ltd. He is a Certified Professional Accountant specializing in the quantification of financial loss. He was retained to provide an expert report as to whether there is a methodology for calculating on an aggregate basis the amount of any refund owed Class Members. Mr. Soriano was cross-examined on September 15, 2020.

• The affidavits of Eduardo Tanjuatco dated March 6, 2020 and July 16, 2020. Mr. Tanjuatco is a legal assistant at Klein Lawyers LLP.

[18] On June 2, 2020, Telus brought a motion for: (a) an Order pursuant to Rule 21.01 (3)(a) of the Rules of Civil Procedure[^10] dismissing the action permanently on jurisdictional grounds as the subject matter falls within the exclusive jurisdiction of the CRTC; (b) an Order pursuant to Rule 21.01 (1)(b) striking the claims brought pursuant to the Telecommunications Act for disclosing no reasonable cause of action; and (c) an Order pursuant to Rule 20 striking out the claims sought pursuant to the Wireless Services Agreement Act, 2013 as invalid (ultra vires) and conflicted with the federal telecommunications regime.

[19] In support of its jurisdictional cross-motion and in response to the certification motion, Telus proffered:

• The affidavit of Nazim Benhadid dated June 1, 2020. Mr. Benhadid of Montréal, Québec is the Vice President of Planning and Engineering at Telus.

• The affidavit of Daniel Stern dated June 2, 2020. Mr. Stern is the Director, Regulatory Law and Policy of Telus. In addition to his law degree from the University of Toronto, he has a Master’s Degree in Public Policy and Administration from the London School of Economics. He was cross-examined on September 15, 2020.

[20] On September 15, 2020, Telus delivered its Statement of Defence.

C. Facts

1. The Representative Plaintiff

1. Ms. Nelson is an Ontario resident. She had been a cellphone customer of Telus for many years. She had a month-to-month wireless service agreement. She paid in advance. She received bills on the 5th day of each month. Her bill, dated November 5, 2017, charged her $60 for monthly services and $30 for data services for the period between November 6, 2017 to December 5, 2017. Thus, total charges billed in advance were $90.

[21] In early November 2017, Ms. Nelson’s service was suspended for non-payment. 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.

[22] 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. 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.

2. The Class

[23] Telus estimates that approximately 291,650 subscribers cancelled their accounts during the Class Period. This estimate includes postpaid wireless customers who requested their account be cancelled at the end of the billing cycle, and those who requested mid-cycle cancellation.

3. Telus Telecommunications Inc.

[24] 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.

4. The Regulation of Wireless Service Agreement Cancellations

[25] 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. 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. The Wireless Code governs the conduct of Wireless Service Providers (“WSPs”), including the Defendant, Telus.

[26] 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]

[27] 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

[28] As may be noted in the Introduction of the Wireless Code, the CRTC requires carriers to participate in the consumer complaint resolution process administered by the Commission for Complaints for Telecommunications-television Services (“CCTS”). The CCTS receives consumer complaints with respect to the Wireless Code. The CCTS may, among other things, award monetary compensation to individuals.

[29] In 2016, in Telecom Decision CRTC 2016-171 ^{(Quebecor application re refunds for cancelled services)}, which was released on May 3, 2016, the CRTC was asked to consider whether under the Wireless Code, customers are entitled to pro-rated refunds when their agreements for wireless services are cancelled. The CRTC held that although neither the Wireless Code nor the 30-day cancellation policy explicitly addressed refunds for cancelled services, consumers paying for both a cancelled service and a new service was contrary to objectives of the Broadcasting Act[^11] 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.

[30] Almost immediately, on July 4, 2016, Telus applied for a review of Telecom Decision CRTC 2016-171 ^{(Quebecor application re refunds for cancelled services)} and for an extension of time to implement the decision. The Public Interest Advocacy Centre (“PIAC”) and Videotron Ltd. intervened. They both opposed Telus’ request.

[31] 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:

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.

[32] Another year passed and 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.

[33] Telus has been compliant with the pro-rated refund policy since October 1, 2018.

D. The Proposed Class Action

[34] In her proposed class action, Ms. Nelson advances two causes of action. The first cause of action is for the national class. She advances a statutory cause of action based on s. 72 (1) of the Telecommunications Act. 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. [emphasis added]

[35] Ms. Nelson proposes the following two questions for the national class:

(1.) Whether the Defendant breached s.72(1) of the Telecommunications Act as alleged in the Statement of Claim, and if so, the particulars of such breach.

(2.) If (1) is answered affirmatively, whether aggregate monetary relief may be awarded, and if so, the particulars and quantum of such an award.

[36] The second cause of action advanced by Ms. Nelson is for a subclass of Ontario Class Members. This statutory cause of action is based on sections 16 (8) and 17 of the Wireless Services Agreement Act, 2013, which state:

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.

[37] Ms. Nelson proposes the following three questions for the Ontario Subclass:

(1.) Whether the Defendant breached s.17(1) of the Wireless Services Agreements Act, and if so, the particulars of such breach.

(2.) If (1) is answered affirmatively, whether aggregate monetary relief may be awarded, and if so, the particulars and quantum of such an award.

(3.) If (1) is answered affirmatively, whether punitive damages may be awarded, and if so, the particulars and quantum of such an award.

E. Certification: General Principles

[38] The court has no discretion and is required to certify an action as a class proceeding when the following five-part test in s. 5 of the Class Proceedings Act, 1992 is met: (1) the pleadings disclose a cause of action; (2) there is an identifiable class of two or more persons that would be represented by the representative plaintiff; (3) the claims of the class members raise common issues; (4) a class proceeding would be the preferable procedure for the resolution of the common issues; and (5) there is a representative plaintiff who: (a) would fairly and adequately represent the interests of the class; (b) has produced a plan for the proceeding that sets out a workable method of advancing the proceeding on behalf of the class and of notifying class members of the proceeding, and (c) does not have, on the common issues for the class, an interest in conflict with the interests of other class members.

[39] For an action to be certified as a class proceeding, there must be a cause of action shared by an identifiable class from which common issues arise that can be resolved in a fair, efficient, and manageable way that will advance the proceeding and achieve access to justice, judicial economy, and the modification of behaviour of wrongdoers.[^12] On a certification motion, the question is not whether the plaintiff's claims are likely to succeed on the merits, but whether the claims can appropriately be prosecuted as a class proceeding.[^13] The test for certification is to be applied in a purposive and generous manner, to give effect to the goals of class actions; namely: (1) to provide access to justice for litigants; (2) to encourage behaviour modification; and (3) to promote the efficient use of judicial resources.[^14]

[40] For certification, the plaintiff in a proposed class proceeding must show “some basis in fact” for each of the certification requirements, other than the requirement that the pleading discloses a cause of action.[^15]

[41] The some-basis-in-fact standard sets a low evidentiary standard for plaintiffs, and a court should not resolve conflicting facts and evidence at the certification stage or opine on the strengths of the plaintiff’s case.[^16] In particular, there must be a basis in the evidence to establish the existence of common issues.[^17] To establish commonality, evidence that the alleged misconduct actually occurred is not required; rather, the necessary evidence goes only to establishing whether the questions are common to all the class members.[^18]

[42] The some-basis-in-fact standard does not require evidence on a balance of probabilities and does not require that the court resolve conflicting facts and evidence at the certification stage and rather reflects the fact that at the certification stage the court is ill-equipped to resolve conflicts in the evidence or to engage in the finely calibrated assessments of evidentiary weight and that the certification stage does not involve an assessment of the merits of the claim and is not intended to be a pronouncement on the viability or strength of the action.[^19]

[43] On a certification motion, evidence directed at the merits may be admissible if it also bears on the requirements for certification but, in such cases, the issues are not decided on the basis of a balance of probabilities, but rather on the much less stringent test of some basis in fact.[^20] The evidence on a motion for certification must meet the usual standards for admissibility.[^21] While evidence on a certification motion must meet the usual standards for admissibility, the weighing and testing of the evidence is not meant to be extensive, and if the expert evidence is admissible, the scrutiny of it is modest.[^22]

F. The Cause of Action Criterion

1. General Principles

[44] The first criterion for certification is that the plaintiff's pleading discloses a cause of action. The "plain and obvious" test for disclosing a cause of action from Hunt v. Carey Canada,[^23] is used to determine whether a proposed class proceeding discloses a cause of action for the purposes of s. 5(1)(a) of the Class Proceedings Act, 1992.

[45] To satisfy the first criterion for certification, a claim will be satisfactory, unless it has a radical defect, or it is plain and obvious that it could not succeed.[^24]

2. Contravention of the Telecommunications Act and the Wireless Code

[46] As noted above, the first of Ms. Nelson’s pleaded causes of action is the statutory cause of action under s. 72 of the Telecommunications Act. In Nelson v. Telus Communications Inc. (Part 2),[^25] I conclude that Ms. Nelson has no viable statutory cause of action under the Telecommunications Act, and in the alternative, I conclude that if she has a statutory cause of action, it should be stayed.

[47] I, therefore, conclude that Ms. Nelson does not satisfy the cause of action criterion for her claim based on s. 72 of the Telecommunications Act.

3. Contravention of the Wireless Services Agreement Act, 2013

[48] As noted above, the second of Ms. Nelson’s pleaded causes of action is the statutory cause of action based on sections 16 and 17 of the Wireless Services Agreement Act, 2013. In Nelson v. Telus Communications Inc. (Part 1),[^26] notwithstanding Telus’ arguments to the contrary, I conclude that this statute is infra vires the province of Ontario and that it was operative during the class period.

[49] Save for the matter of a demand for payment of the refunds, there was no dispute that Ms. Nelson satisfied the cause of action criterion for her statutory claim under the Wireless Services Agreement Act, 2013.

[50] Telus, argues that s. 17 of the Wireless Services Agreement Act, 2013 is not available because while Ms. Nelson has not received her required refund, she did not make a demand for the amount owing as specified by s. 17 (1) (b) of the Act.

[51] I disagree with Telus’ argument because I conclude that:

a. A demand sufficient to satisfy the requirement of the Wireless Services Agreement Act 2013, was given when the Class Members cancelled their agreements.

b. A demand sufficient to satisfy the requirement of the Wireless Services Agreement Act, 2013 was given when the class action was commenced.

c. Telus waived the requirement of a notice of demand in the circumstances of the immediate case.

d. It is appropriate in the circumstances of the immediate case to waive the requirement that the Class Members demanded payment of the refunds.

e. In circumstances of the immediate case, it is, at least, not plain and obvious that a demand was not given or that a demand was even required.

[52] The explanation for these conclusions begins by noting that s. 5 of the Wireless Services Agreements Act, 2013 incorporates sections 92 and 101 of the Consumer Protection Act, 2002.[^27]

[53] Section 92 of the Consumer Protection Act, 2002, among other things, specifies that if the statute requires a consumer to give notice, then the notice may be expressed in any way as long as it indicates the intention of the consumer to seek the remedy being requested and unless the regulations require otherwise, the notice may be oral or in writing and may be given by any means.

[54] Section 101 of the Consumer Protection Act, 2002 specifies that if the consumer is required to give notice under this Act in order to obtain a remedy, then a court may disregard the requirement to give the notice or any requirement relating to the notice if it is in the interest of justice to do so.

[55] In Ontario (Min. of Gov. and Con. Services) v. Ivan’s Electric Limited, the court found that cancelation of a service by a consumer is sufficient notice.[^28] In the immediate case, the Ontario subclass definition is entirely composed of persons who cancelled their service, and, in my opinion, the cancellation of the wireless service agreement inherently was a demand for a refund of the services that were paid for but that were not to be provided.

[56] Further still, in my opinion, in the circumstances of the immediate case, the issuance of the Statement of Claim is sufficient demand for payment of the refunds.

[57] Moreover, in the circumstances of the immediate case, Telus waived or made futile a demand for payment of the refunds. Before the class action was commenced, Telus had gone to the CRTC and made it clear that it wished to be relieved of any retrospective liability for refunds, and that it was seeking an extension of time to implement the CRTC’s policy that on a go-forward basis refunds be provided to consumers who cancelled their wireless service agreements. Telus was already deaf to a demand, and it is simply churlish for it to now insist on a demand that it would have snubbed as it continues to do.

[58] Further, and in any event, in the circumstances of the immediate case, it is in the interests of justice to waive the requirement that a demand for the refund be made. In this regard, the case at bar is similar to the circumstances of Bernstein v. Peoples Trust Company,[^29] where I relied on s. 101 of the Consumer Protection Act, 2001 to waive a notice requirement. In that case, I stated at paragraph 291:

291. In any event, as already noted, under s. 101 of the Consumer Protection Act, 2001, the court has discretion to “disregard” any notice requirements “if it is in the interests of justice to do so”. Ms. Bernstein submits that it is in the interests of justice to waive the notice requirement for the unfair practices claims. Apart from the fact that waiver is superfluous, if it was not, it is not in the interests of justice to impose the notice requirement. To allow Peoples Trust to use the s. 18 notice requirement as a shield would defeat all three purposes of class proceedings, but particularly access to justice. Once the Class Members have demonstrated that they have viable claims, it would not be in the interests of justice to strictly apply the notice requirements of the Consumer Protections Act, 2002.

[59] I, therefore, conclude that Ms. Nelson satisfies the cause of action criterion for her claim based on sections 16 and 17 of the Wireless Services Agreement Act, 2013.

4. Analogous Statutory Causes of Action

[60] Manitoba, Québec, and Newfoundland and Labrador have provincial statutes analogous to the Wireless Services Agreement Act, 2013.[^30]

[61] These statutes were mentioned in the motion record material for the motion and the cross-motion, and during the argument of the motions, I asked Class Counsel why, in the immediate case, as it is common in national class actions where there are statutes in pari materia with an Ontario statute, those statutes were not pleaded. Class Counsel had no meaningful answer to that question and said only that Telus customers from all the provinces were included as Class Members advancing claims under the Telecommunications Act.

[62] Given that there shall not be a national class based on the Telecommunications Act and given that it would serve the purposes of the Class Proceedings Act, 1992 and serve the purposes of comity and cooperation between the courts across the country, I shall give Class Counsel an opportunity to consider whether additional classes based on analogous provincial statutes be added to what was envisioned to be a national class action but is now limited to Ontario Class Members.

[63] Pursuant to s. 5 (4) of Class Proceedings Act, 1992, the court may adjourn a motion for certification to permit the parties to amend their materials or pleadings or to permit further evidence. I am, therefore, before making this decision final, adjourning the certification motion for thirty days to permit Ms. Nelson, if she is so advised, to bring a motion to amend her materials or pleadings to plead the provincial legislation analogous to the Wireless Services Agreement Act, 2013.

G. Identifiable Class Criterion

[64] The second certification criterion is the identifiable class criterion. The definition of an identifiable class serves three purposes: (1) it identifies the persons who have a potential claim against the defendant; (2) it defines the parameters of the lawsuit so as to identify those persons bound by the result of the action; and (3) it describes who is entitled to notice.[^31]

[65] With Ms. Nelson conceding that business consumers Class Members with arbitration provisions in their wireless service agreements are not Class Members, there was no issue about the identifiable class criterion. However, in light of the circumstance that only Ontario’s statutory cause of action under the Wireless Services Agreement Act, 2013 has been certified, it is necessary to amend the class definition to delete the national class.

[66] With the national class deleted, Ms. Nelson’s class action satisfies the first and the second criteria for certification.

H. Common Issues Criterion

1. General Principles

[67] The third criterion for certification is the common issues criterion. For an issue to be a common issue, it must be a substantial ingredient of each class member's claim and its resolution must be necessary to the resolution of each class member's claim.[^32] The underlying foundation of a common issue is whether its resolution will avoid duplication of fact-finding or legal analysis of an issue that is a substantial ingredient of each class member’s claim and thereby facilitate judicial economy and access to justice.[^33] In Pro-Sys Consultants Ltd. v. Microsoft Corporation,[^34] the Supreme Court of Canada describes the commonality requirement as the central notion of a class proceeding which is that individuals who have litigation concerns in common ought to be able to resolve those common concerns in one central proceeding rather than through an inefficient multitude of repetitive proceedings.

[68] All members of the class must benefit from the successful prosecution of the action, although not necessarily to the same extent. The answer to a question raised by a common issue for the plaintiff must be capable of extrapolation, in the same manner, to each member of the class.[^35]

[69] An issue is not a common issue if its resolution is dependent upon individual findings of fact that would have to be made for each class member.[^36] Common issues cannot be dependent upon findings which will have to be made at individual trials, nor can they be based on assumptions that circumvent the necessity for individual inquiries.[^37]

[70] The common issue criterion presents a low bar.[^38] An issue can be a common issue even if it makes up a very limited aspect of the liability question and even though many individual issues remain to be decided after its resolution.[^39] Even a significant level of individuality does not preclude a finding of commonality.[^40]A common issue need not dispose of the litigation; it is sufficient if it is an issue of fact or law common to all claims and its resolution will advance the litigation.[^41]

[71] From a factual perspective, the Plaintiff must show that there is some basis in fact that: (a) the proposed common issue actually exists, and (2) the proposed issue can be answered in common across the entire class, which is to say that the Plaintiff must adduce some evidence demonstrating that there is a colourable claim or a rational connection between the Class Members and the proposed common issues.[^42]

2. Analysis and Discussion

[72] Since the statutory cause of action under s. 72 of the Telecommunications Act was not certified, I need not and shall not consider the associated proposed common issues.

[73] With respect to the three common issues about the Wireless Services Agreement Act, 2013, I am satisfied that these common issues should be certified and accordingly this criterion for certification is satisfied in the immediate case.

(a) Breach of sections 16 and 17 (1) of the Wireless Services Act, 2013

[74] The first proposed common issue question is: “Whether the Defendant breached s.17 (1) of the Wireless Services Agreements Act, 2013, and if so, the particulars of such breach.” This ineloquently and vaguely worded question should be restated to differentiate the alleged wrong (s. 16) from the remedy provided by s. 17. The proper question is:

1. Did Telus breach s. 16 of the Wireless Services Agreement Act, 2013 by failing to provide pro-rated refunds to Class Members?

[75] All the Class Members are individuals that cancelled wireless service agreements with Telus, and the issue of whether Telus was obligated to provide refunds because of s. 16 of the Wireless Services Agreement Act, 2013 is a common issue that is not dependent upon individual findings of fact that would have to be made for each Class Member. The answer to the question of whether s. 16 of the Wireless Services Agreement Act, 2013 has been breached is a common issue that would significantly move the litigation forward.

(b) Aggregate Damages

[76] The second proposed common issue question is: “If (1) is answered affirmatively, whether aggregate monetary relief may be awarded, and if so, the particulars and quantum of such an award.”

[77] Once again, the question is ineloquently worded, and it should be restated to state:

2. If Telus breached s. 16 of the Wireless Services Agreement, 2013 by failing to provide pro-rated refunds to Class Members, what is the aggregate of the unpaid refunds?

[78] To certify a common issue about aggregate damages, a plaintiff must show that it is reasonably likely that the pre-conditions in s. 24 (1) of the Class Proceedings Act, 1992 can be satisfied.[^43] Section 24 (1)(c) sets out the condition that the aggregate or a part of the defendant's liability to some or all Class Members can reasonably be determined without proof by individual Class Members. Section 24 (1) of the Class Proceedings Act, 2002 states:

Aggregate assessment of monetary relief

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

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

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

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

[79] For an aggregate assessment of damages to be available under s. 24 of the Class Proceedings Act, 1992, no questions of fact or law other than those relating to the assessment of monetary relief must remain to be determined in order to establish the amount of the defendant’s monetary liability.[^44] In Ramdath v. George Brown College of Applied Arts and Technology,[^45] Justice Belobaba stated at paragraph 1:

1. Aggregate damages are essential to the continuing viability of the class action. If all or part of the defendant’s monetary liability to class members can be fairly and reasonably determined without proof by individual class members, then class action judges should do so routinely and without hesitation. Aggregate damage awards should be more the norm, than the exception. Otherwise, the potential of the class action for enhancing access to justice will not be realized.

[80] On appeal, in Ramdath, the Court of Appeal endorsed Justice Belobaba’s approach to the quantification of aggregate damages. Justice Belobaba held that provided that the liability of the defendant was not overstated, the standard of proof of aggregate damages did not have to achieve the same degree of accuracy as in an ordinary action and instead the standard was whether the damages could be reasonably determined without proof by individual class members.

[81] In Ramdath, the Court of Appeal noted that it is desirable to award aggregate damages where the criteria under s. 24 (1) are met in order to make the class action an effective instrument to provide access to justice and the standard to meet in determining whether an aggregate assessment will be ordered is reasonableness.[^46] The Court of Appeal also noted that provided that the Defendant's total liability is not over-stated, an aggregate damages methodology will be reasonable if some members of the class are over-compensated and some are under-compensated.[^47]

[82] Thus, the court may award aggregate damages under s. 24(1)(c) of the Class Proceedings Act, 2002 if the evidence put forward by class counsel is sufficiently reliable to permit a just determination of all or part of the defendant's monetary liability without proof by individual class members.

[83] In the immediate case, Ms. Nelson proffered the evidence of two expert witnesses, David Andrews and Errol Soriano, to show that there was some basis in fact for a methodology to calculate aggregate damages. Their methodologies are different, but there is some basis in fact for concluding that they are each workable methodologies. It is possible that the methodologies could work together or corroborate one another and ensure that Telus’ liability in the aggregate is not overstated.

[84] Mr. Andrews, a professional statistician, had a different approach to calculate an aggregate sum for the unpaid refunds than Mr. Soriano. Mr. Andrews opined that randomly sampling and reviewing a statistically relevant number of customer files could produce a reasonably accurate estimate as to the aggregate over-charges made by Telus and that such sampling techniques are commonly employed by industry and by governments. Under Mr. Andrews’ methodology, individual customer files would be reviewed by human beings, but one would not need to review all 291,000 such files. Rather, a meaningful statistical sample could be reviewed to generate necessary data that could reasonably be extrapolated to the class as a whole.

[85] Mr. Soriano opined that Telus’s business records can be used to determine aggregate damages.

[86] Mr. Stern of Telus countered that that there are limitations to Telus’ KNOWbility billing system that would make it impossible to calculate aggregate damages because this particular billing system failed to capture necessary information. Mr. Soriano, however, explained on cross-examination that there were ways to fill the gaps in information from other Telus records. Mr. Soriano also testified that it would not be necessary to individually review all the customer records and a software algorithm could be written to extract and organize the necessary data to make a calculation of aggregate damages.

[87] It may be observed that unlike the claim for damages under s. 72 of the Telecommunications Act, for which it is arguable that there might be some individual issues to determine that would disturb the calculation of aggregate damages, in contrast, if it is adjudged that Telus breached s. 16 of the Wireless Services Agreement Act, 2013, then there are no individual issues that would disturb the calculation of the aggregate of the sum of money that Telus ought to have refunded. The methodology of either Mr. Soriano or Mr. Andrews is designed to determine the amount of refunds that ought to have been made in the aggregate. There is no need to check for offsetting claims by Telus against individual customers.

[88] To be clear, there may be individual issues in the immediate case based on Ontario’s Wireless Services Agreement Act, 2013 about the fair distribution of the aggregate award, but those individual issues do not affect the availability of an aggregate assessment of Telus’ liability for refunds.

[89] In the immediate case, there may be difficulties later in deciding how to divide the aggregate award given idiosyncratic factors of Class Members, who may have cancelled at different times during the billing cycle, but that is a problem for the court and for Class Counsel and it does not entail any unfairness to Telus. This type of individual issues problem does not affect the calculation of aggregate damages and is envisioned by s. 24 (2) of the Class Proceedings Act, 1992, which states: “The court may order that all or a part of an award under subsection (1) be applied so that some or all individual class members share in the award on an average or proportional basis.”

[90] I wish to also be clear that I am not deciding whether or not the availability of an aggregate assessment in the immediate case is an appropriate common issue question for a damages claim pursuant to s. 72 of the Telecommunications Act. I need not and shall not decide that question because that statutory cause of action was not certified.

(c) Punitive Damages

[91] The third proposed common issue question is: If (1) is answered affirmatively, whether punitive damages may be awarded, and if so, the particulars and quantum of such an award.

[92] Yet once again, the question is ineloquently worded, and it should be restated to state:

If Telus breached s. 16 of the Wireless Services Agreement, 2013 by failing to provide pro-rated refunds to Class Members what amount of punitive damages, if any, should be awarded to Class Members?

[93] Ms. Nelson’s action is based on sections 16 and 17 of the Wireless Services Agreement Act, 2013. Section 17 (3) of the Act provides for punitive damages as part of the statutory claim. Section 17 (3) states:

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.

[94] The availability of punitive damages is a common issue that would meaningfully advance the class action and need not be decided on an individual basis.

I. Preferable Procedure Criterion

1. General Principles

[95] Under the Class Proceedings Act, 1992, the fourth criterion for certification is the preferable procedure criterion. Preferability captures the ideas of: (a) whether a class proceeding would be an appropriate method of advancing the claims of the class members; and (b) whether a class proceeding would be better than other methods such as joinder, test cases, consolidation, and any other means of resolving the dispute.[^48]

[96] In AIC Limited v. Fischer,[^49] the Supreme Court of Canada emphasized that the preferability analysis must be conducted through the lens of judicial economy, behaviour modification, and access to justice. Justice Cromwell stated that access to justice has both a procedural and substantive dimension. The procedural aspect focuses on whether the claimants have a fair process to resolve their claims. The substantive aspect focuses on the results to be obtained and is concerned with whether the claimants will receive a just and effective remedy for their claims if established.

[97] Thus, for a class proceeding to be the preferable procedure for the resolution of the claims of a given class, it must represent a fair, efficient, and manageable procedure that is preferable to any alternative method of resolving the claims.[^50] Whether a class proceeding is the preferable procedure is judged by reference to the purposes of access to justice, behaviour modification, and judicial economy and by taking into account the importance of the common issues to the claims as a whole, including the individual issues.[^51]

[98] To satisfy the preferable procedure criterion, the proposed representative plaintiff must show some basis in fact that the proposed class action would: (a) be a fair, efficient and manageable method of advancing the claim; (b) be preferable to any other reasonably available means of resolving the class members' claims; and (c) facilitate the three principal goals of class proceedings; namely: judicial economy, behaviour modification, and access to justice.[^52]

2. Analysis and Discussion

[99] Telus argues that the preferable procedure criterion has not been satisfied in the immediate case. To quote from its factum:

5. Taking a step back, it is also apparent that this class proceeding is not the preferable procedure for the resolution of these claims as required by s. 5(1)(d) of the CPA. The CRTC and the Commission for Complaints for Telecom-television Services (CCTS) have specific expertise and offer a preferable means of resolving any claims that may exist. There is overwhelming precedent that courts ought to defer to the jurisdiction of the CRTC where the subject matter of an action falls within the CRTC’s jurisdiction.

[100] Telus’ argument is that preferable to the statutory cause of action under s. 72 of the Telecommunications Act, the Class Members should either; (a) bring proceedings and lodge a complaint with the CRTC; or (b) bring a complaint to the Commissioner for Complaints for Telecommunications Services Inc. (CCTS).

[101] Telus’ argument, however, is now moot or academic because the statutory cause of action under the Telecommunications Act has not been certified. The CRTC or the CCTS are not an alternative to the statutory cause of action under the Wireless Services Agreement Act, 2013.

[102] The question now for the preferable procedure analysis is whether a class action is the preferable procedure for the resolution of the common issues associated with Wireless Services Agreement Act, 2013.

[103] That is an easy question to answer because Ms. Nelson’s case falls within the genre of consumer protection class actions that have been held to be the preferable procedure notwithstanding that there may be a regulatory route for relief for individual class members. Telecommunications providers are not immune from class actions under consumer protection statutes.[^53]

[104] I conclude that the preferable procedure criterion is satisfied in the immediate case.

J. Representative Plaintiff Criterion

1. General Principles

[105] The fifth and final criterion for certification as a class action is that there is a representative plaintiff who would adequately represent the interests of the class without conflict of interest and who has produced a workable litigation plan. The representative plaintiff must be a member of the class asserting claims against the defendant, which is to say that the representative plaintiff must have a claim that is a genuine representation of the claims of the members of the class to be represented or that the representative plaintiff must be capable of asserting a claim on behalf of all of the class members as against the defendant.[^54]

2. Analysis and Discussion

[106] Telus makes what has become boilerplate in class action factums delivered by defendants about representative plaintiffs and about litigation plans; I quote the boilerplate:

91. Section 5(1)(e)(ii) of the CPA requires that the plaintiff have a suitable plan for advancing the proceeding on behalf of the class. A proper litigation plan must be comprehensive and set out a workable framework for the proceeding. This includes demonstrating that the Plaintiff or her counsel have considered and have plans to address the complexities involved in the litigation

92. The Plaintiff in this case has not produced a litigation plan with a workable method to advance the proceedings. The litigation plan provides no methodology for determining whether the individuals captured by the Class definition have suffered damages and have a potential claim against TELUS. In addition, the Plaintiff’s proposed litigation plan fails to address how the individual issues that remain after the determination of common issues will be addressed.

93. Although a litigation plan need only provide a reasonable framework for the issues that are reasonably expected to arise as the case proceeds, the plan must still be workable. This requires the litigation plan to address the resolution of individual issues in addition to the common issues that are specific to any given action.

94. The proposed litigation plan in this case is a rudimentary, vague, and formulaic template document. It does not satisfy the requirements of s. 5(1)(e)(ii). While some less significant deficiencies in a plaintiff’s proposed litigation plan might be addressed through case management, the problems with the litigation plan in this case are fundamental to the other certification criteria and demonstrate that this case is not workable as a class action and that it should not be certified.

[107] To the extent that there is anything beyond boilerplate lamentations about the unworkability and unmanageability of the litigation plan, the specific criticisms made by Telus focus on the statutory cause of action based on the Telecommunications Act. These criticisms are now as insipid as the boilerplate submissions because the cause of action based on the Telecommunications Act is not being certified and the action that is going forward is designed to avoid individual issues trials.

[108] Class Counsel was very candid during argument to say that if the aggregate damages question was not certified as a common issue, then the action would be unworkable and unmanageable and would not be pursuable. As it happens, all the common issues, including the matter of aggregate damages have been certified, and I conclude that Ms. Nelson’s action satisfies the fifth and final criterion for certification as a class action.

K. Conclusion

[109] Order to go certifying Ms. Nelson’s action as a class action in accordance with the above Reasons for Decision.

[110] If the parties cannot agree about the matter of costs, they may make submissions in writing beginning with Ms. Nelson’s submissions within thirty days of the release of these Reasons for Decision followed by Telus’ submissions within a further thirty days.

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 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.

[^6]: 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.

[^7]: 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).

[^8]: 2019 SCC 19.

[^9]: Telus’s standard form contact includes an arbitration clause, and also a class action waiver clause, both of which appear applicable to its business customers, but not to its other customers. Telus designates some of its customer accounts as business accounts and has a system for doing so.

[^10]: R.R.O. 1990, Reg. 194.

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

[^12]: Sauer v. Canada (Attorney General), 2008 CanLII 43774 (ON SC), [2008] O.J. No. 3419 at para. 14 (S.C.J.), leave to appeal to Div. Ct. refused, 2009 CanLII 2924 (ON SCDC), [2009] O.J. No. 402 (Div. Ct.).

[^13]: Hollick v. Toronto (City), 2001 SCC 68 at para. 16.

[^14]: Hollick v. Toronto (City), 2001 SCC 68 at paras. 15 and 16; Western Canadian Shopping Centres Inc. v. Dutton, 2001 SCC 46 at paras. 26 to 29.

[^15]: Hollick v. Toronto (City), 2001 SCC 68, [2001] 3 S.C.R. 158 at para. 25; Pro-Sys Consultants Ltd. v. Microsoft Corporation, 2013 SCC 57 at paras. 99-105; Taub v. Manufacturers Life Insurance Co., (1998) 1998 CanLII 14853 (ON SC), 40 O.R. (3d) 379 (Gen. Div.), aff’d (1999), 1999 CanLII 19922 (ON SC), 42 O.R. (3d) 576 (Div. Ct.).

[^16]: Pro-Sys Consultants Ltd. v. Microsoft Corporation, 2013 SCC 57; McCracken v. CNR Co., 2012 ONCA 445.

[^17]: Singer v. Schering-Plough Canada Inc., 2010 ONSC 42 at para. 140; Fresco v. Canadian Imperial Bank of Commerce, 2009 CanLII 31177 (ON SC), [2009] O.J. No. 2531 at para. 21 (S.C.J.); Dumoulin v. Ontario, [2005] O.J. No. 3961 at para. 25 (S.C.J.).

[^18]: Pro-Sys Consultants Ltd. v. Microsoft Corporation, 2013 SCC 57 at para. 110.

[^19]: Pro-Sys Consultants Ltd. v. Microsoft Corporation, 2013 SCC 57 at para. 102.

[^20]: Cloud v. Canada (2004), 2004 CanLII 45444 (ON CA), 73 O.R. (3d) 401 at para. 50 (C.A.), leave to appeal to the S.C.C. ref'd, [2005] S.C.C.A. No. 50, rev'g (2003), 2003 CanLII 72353 (ON SCDC), 65 O.R. (3d) 492 (Div. Ct.); Hollick v. Toronto (City), 2001 SCC 68 at paras. 16-26.

[^21]: Martin v. Astrazeneca Pharmaceuticals PLC, 2012 ONSC 2744; Williams v. Canon Canada Inc., 2011 ONSC 6571, aff’d 2012 ONSC 3992 (Div. Ct.); Schick v. Boehringer Ingelheim (Canada) Ltd., 2011 ONSC 63 at para.13; Ernewein v. General Motors of Canada Ltd. 2005 BCCA 540 (C.A.), leave to appeal to S.C.C. ref’d, [2005] S.C.C.A. No. 545.

[^22]: Griffin v. Dell Canada Inc., 2009 CanLII 3557 (ON SC), [2009] O.J. No. 418 at para. 76 (S.C.J.).

[^23]: 1990 CanLII 90 (SCC), [1990] 2 S.C.R. 959.

[^24]: 176560 Ontario Ltd. v. Great Atlantic & Pacific Co. of Canada Ltd. (2002), 2002 CanLII 6199 (ON SC), 62 O.R. (3d) 535 at para. 19 (S.C.J.), leave to appeal granted, 2003 CanLII 36393 (ON SCDC), 64 O.R. (3d) 42 (S.C.J.), aff'd (2004), 2004 CanLII 16620 (ON SCDC), 70 O.R. (3d) 182 (Div. Ct.); Anderson v. Wilson (1999), 1999 CanLII 3753 (ON CA), 44 O.R. (3d) 673 at p. 679 (C.A.), leave to appeal to S.C.C. ref'd, [1999] S.C.C.A. No. 476.

[^25]: 2021 ONSC 23.

[^26]: 2021 ONSC 22.

[^27]: S.O. 2002, c. 30, Sched. A.

[^28]: Ontario (Min. of Gov. and Con. Services) v. Ivan’s Electric Limited, 2017 ONCJ 227 at para. 242.

[^29]: Bernstein v. Peoples Trust Company, 2019 ONSC 2867 at para. 291. See also: Wright v. United Parcel Service Canada Ltd., 2011 ONSC 5044; Graham v. Impark, 2010 ONSC 4982.

[^30]: 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).

[^31]: Bywater v. Toronto Transit Commission, [1998] O.J. No. 4913 (Gen. Div.).

[^32]: Hollick v. Toronto (City), 2001 SCC 68 at para. 18.

[^33]: Western Canadian Shopping Centres Inc. v. Dutton, 2001 SCC 46 at paras. 39 and 40.

[^34]: 2013 SCC 57 at para. 106.

[^35]: Batten v. Boehringer Ingelheim (Canada) Ltd., 2017 ONSC 53, aff’d, 2017 ONSC 6098 (Div. Ct.), leave to appeal refused (28 February 2018) (C.A.); Amyotrophic Lateral Sclerosis Society of Essex County v. Windsor (City), 2015 ONCA 572 at para. 48; McCracken v. CNR, 2012 ONCA 445 at para. 183; Merck Frosst Canada Ltd. v. Wuttunee, 2009 SKCA 43 at paras. 145-46 and 160, leave to appeal to S.C.C. refused, [2008] S.C.C.A. No. 512; Ernewein v. General Motors of Canada Ltd., 2005 BCCA 540 (C.A.), leave to appeal to S.C.C. ref’d, [2005] S.C.C.A. No. 545; Western Canadian Shopping Centres Inc. v. Dutton, 2001 SCC 46 at para. 40.

[^36]: Fehringer v. Sun Media Corp., [2003] O.J. No. 3918 at paras. 3, 6 (Div. Ct.).

[^37]: McKenna v. Gammon Gold Inc., 2010 ONSC 1591, [2010] O.J. No. 1057 at para. 126 (S.C.J.), leave to appeal granted 2010 ONSC 4068, [2010] O.J. No. 3183 (Div. Ct.), var’d 2011 ONSC 3882 (Div. Ct.); Nadolny v. Peel (Region), [2009] O.J. No. 4006 at paras. 50-52 (S.C.J.); Collette v. Great Pacific Management Co., 2003 BCSC 332, [2003] B.C.J. No. 529 at para. 51 (B.C.S.C.), var’d on other grounds (2004) 2004 BCCA 110, 42 B.L.R. (3d) 161 (B.C.C.A.).

[^38]: 203874 Ontario Ltd. v. Quiznos Canada Restaurant Corp., 2009 CanLII 23374 (ON SCDC), [2009] O.J. No. 1874 (Div. Ct.), aff’d 2010 ONCA 466, [2010] O.J. No. 2683 (C.A.), leave to appeal to S.C.C. refused [2010] S.C.C.A. No. 348; Cloud v. Canada (Attorney General) (2004), 2004 CanLII 45444 (ON CA), 73 O.R. (3d) 401 at para. 52 (C.A.), leave to appeal to the S.C.C. ref'd, [2005] S.C.C.A. No. 50, rev'g (2003), 2003 CanLII 72353 (ON SCDC), 65 O.R. (3d) 492 (Div. Ct.); Carom v. Bre-X Minerals Ltd. (2000), 2000 CanLII 16886 (ON CA), 51 O.R. (3d) 236 at para. 42 (C.A.).

[^39]: Cloud v. Canada (Attorney General), (2004), 2004 CanLII 45444 (ON CA), 73 O.R. (3d) 401 (C.A.), leave to appeal to the S.C.C. ref'd, [2005] S.C.C.A. No. 50, rev'g (2003), 2003 CanLII 72353 (ON SCDC), 65 O.R. (3d) 492 (Div. Ct.).

[^40]: Hodge v. Neinstein, 2017 ONCA 494 at para. 114; Pro-Sys Consultants Ltd. v. Microsoft Corporation, 2013 SCC 57 at para. 112; Western Canadian Shopping Centres Inc. v. Dutton, 2001 SCC 46 at para. 54.

[^41]: Harrington v. Dow Corning Corp., 2000 BCCA 605, [2000] B.C.J. No. 2237 (C.A.), leave to appeal to S.C.C. ref’d [2001] S.C.C.A. No. 21.

[^42]: Kuiper v. Cook (Canada) Inc., 2020 ONSC 128 (Div. Ct.).

[^43]: Fulawka v. Bank of Nova Scotia, 2012 ONCA 443 at para. 111.

[^44]: Bennett v. Hydro One Inc., 2017 ONSC 7065 at para. 104.

[^45]: 2014 ONSC 3066 at para. 1, aff’d 2015 ONCA 921. With respect to the trial aggregate assessment, see also supplementary reasons, Ramdath v. George Brown College of Applied Arts and Technology, 2014 ONSC 4215.

[^46]: 2015 ONCA 921 at para. 76.

[^47]: 2015 ONCA 921 at para. 51.

[^48]: Markson v. MBNA Canada Bank, 2007 ONCA 334 at para. 69, leave to appeal to SCC ref’d [2007] S.C.C.A. No. 346; Hollick v. Toronto (City), 2001 SCC 68.

[^49]: 2013 SCC 69 at paras. 24-38.

[^50]: Cloud v. Canada (Attorney General) (2004), 2004 CanLII 45444 (ON CA), 73 O.R. (3d) 401 at para. 52 (C.A.), leave to appeal to the S.C.C. ref'd, [2005] S.C.C.A. No. 50, rev'g (2003), 2003 CanLII 72353 (ON SCDC), 65 O.R. (3d) 492 (Div. Ct.).

[^51]: Markson v. MBNA Canada Bank, 2007 ONCA 334; Hollick v. Toronto (City), 2001 SCC 68.

[^52]: Musicians’ Pension Fund of Canada (Trustee of) v. Kinross Gold Corp., 2014 ONCA 901; AIC Limited v. Fischer, 2013 SCC 69; Hollick v. Toronto (City), 2001 SCC 68.

[^53]: TELUS Communications Inc. v. Wellman, 2014 ONSC 3318 (Telus appealed only the issue of the application of an arbitration clause to certain class members; see 2019 SCC 19); Seidel v. Telus Communications Inc., 2016 BCSC 114; Sankar v. Bell Mobility, 2015 ONSC 632 (merits); Bell Mobility Inc. v. Anderson, 2015 NWTCA 3 (merits); Anderson v. Bell Mobility Inc., 2013 NWTSC 25 (certification); Sankar v. Bell Mobility, 2013 ONSC 5916 (certification); Morin c. Bell Canada 2012 QCCS 4191.

[^54]: Drady v. Canada (Minister of Health), 2007 CanLII 27970 (ON SC), [2007] O.J. No. 2812 at paras. 36-45 (S.C.J.); Attis v. Canada (Minister of Health), [2003] O.J. No. 344 at para. 40 (S.C.J.), aff'd [2003] O.J. No. 4708 (C.A.).