COURT FILE NO.: CV-20-00635778-00CP
DATE: 20211222
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
VANESSA FAREAU and RANSOME CAPAY
Plaintiffs
- and –
BELL CANADA and HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO
Defendants
David Sterns, Mohsen Seddigh, Tassia Poynter, Kirsten L. Mercer, Jody Brown and Geetha Philipupillai for the Plaintiffs
Paul Le Vay, Carlo Di Carlo and Caitlin Milne for the Defendant Bell Canada
Christopher P. Thompson, Zachary Green and Andi Jin for the Defendant Her Majesty the Queen in Right of Ontario
Proceeding under the Class Proceedings Act, 1992
HEARD: December 7, 2021
PERELL, J.
REASONS FOR DECISION
A. Introduction and Overview
[1] In this proposed class action under the Class Proceedings Act, 1992,[^1] this is a motion to strike 40 paragraphs from the 47-paragraph affidavit of Pierre-Luc Hébert. The Plaintiffs seek to strike paragraphs 6-25 and 27-46 of Mr. Hébert’s affidavit - but not the parts of those paragraphs that attach Exhibits A-N and P-V (21 exhibits).
[2] Mr. Hébert’s affidavit was delivered by the Defendant Bell Canada, which is Mr. Hébert’s employer. The affidavit was delivered: (a) to respond to and to resist the Plaintiffs’ certification motion; and (b) in support of Bell’s cross-motion to stay or dismiss the Plaintiffs’ action on jurisdictional grounds.
[3] Relying on Mr. Hébert’s affidavit, Bell submitted that: (a) the Plaintiffs’ action did not satisfy the certification criteria; and (b) the Plaintiffs’ action should be stayed or dismissed because Ontario’s Superior Court of Justice has no substantive jurisdiction over the subject matter of the action. In this regard, Bell submitted that pursuant to the Telecommunications Act,[^2] its regulator, the Canadian Radio-television and Telecommunications Commission (the “CRTC”), has jurisdiction over the Plaintiffs’ claims, which are in pith and substance about the subject matter of regulating long-distance collect call rates.
[4] In the motion now before the court, the Plaintiffs submitted, however, that Mr. Hébert’s testimony in his affidavit - but not the exhibits about which he was testifying - should be struck from his affidavit because:
a. Mr. Hébert was expressing an expert’s opinion that he was not qualified to give because he is not an expert by education or experience;
b. if Mr. Hébert was an expert, he would be disqualified on the grounds of partisanship and because of his failure to give the undertakings required of an independent expert to provide opinion evidence that is fair, objective, and non-partisan and that is related only to matters that are within the expert’s area of expertise; and
c. if Mr. Hébert was not disqualified as an expert, Mr. Hébert’s testimony - but not the exhibits about which he was testifying – should be struck because the testimony was improper opinion evidence.
[5] Bell demurred that Mr. Hébert was not purporting to be an expert and that there was nothing objectionable about Mr. Hébert’s evidence. Bell submitted that the Plaintiffs’ motion to strike was misconceived and ill-conceived and should be dismissed.
[6] Following up on a question I asked at the outset of the oral argument, Bell also submitted that the motion to strike should be dismissed because it was unfair and improper for the Plaintiffs to cross-examine Mr. Hébert on his affidavit after moving to have portions of the affidavit struck on the grounds that Mr. Hébert was disqualified to give opinion evidence.
[7] I agree with Bell that the Plaintiffs’ motion to strike Mr. Hébert’s testimony - but not the exhibits about which he was testifying - was misconceived and ill-conceived.
[8] For the reasons that follow, I dismiss the Plaintiffs’ motion with costs to Bell in any event of the certification motion and of Bell’s jurisdiction motion.
B. Factual Background
[9] The Plaintiff Vanessa Fareau was a prisoner at the Ottawa-Carleton Detention Centre for two months, and the Plaintiff Ransome Capay is the father of Adam Mark Capay, who was imprisoned in solitary confinement in the Thunder Bay Correctional Centre and Kenora Jail for 4.5 years.
[10] Prisoners’ phone calls from Ontario prisons are controlled by the Offender Telephone Management System (“OTMS”) which is operated by the Defendant Bell pursuant to a contract with the Defendant, Her Majesty the Queen in Right of Ontario (“Ontario”).
[11] Bell is a communications and multimedia company headquartered in Montreal, Québec. It is the dominant incumbent local exchange carrier for telephone services in most of Canada, including Ontario. Bell is a public company and subsidiary of the holding company BCE Inc.
[12] The Plaintiffs commenced this proposed class action on February 5, 2020.
[13] The proposed class consists of two groups. The first group is the Payor Class. It is comprised of all persons who paid for collect calls from prisoners in Ontario’s correctional facilities. The second group is the Prisoner Class. It is comprised of: (a) persons serving a custodial sentence in an Ontario correctional facility; (b) persons detained in a correctional facility; (c) persons in an Ontario correctional facility awaiting transfer to a federal correctional facility; or (d) other persons incarcerated at an Ontario correctional facility making phone calls through the OTMS.
[14] In so far as Ontario is concerned, the premise of this proposed class action is that Ontario breached its fiduciary duty to the prisoners and imposed an unlawful tax on the collect phone calls made by the prisoners. In so far as Bell is concerned, the premise of this proposed class action is that Bell entered into unconscionable contracts and breached the Consumer Protection Act, 2002.[^3]
[15] The OTMS is operated by Bell, which is a national telecommunications service provider. Prisoners may only make collect calls. Bell charges $1.00 for local calls and typically over $1.00 per minute for long-distance calls. Bell pays a commission to Ontario on the revenue it receives from the collect calls. Bell has generated millions of dollars of revenue from prisoner phone calls from Ontario’s correctional facilities.
[16] Bell was granted the monopoly to operate the OTMS after an RFP (request for proposals) process in 2012. It competed against other telecommunications companies. After being selected as the service provider, Bell entered into a contract with Ontario to operate the OTMS. Bell obtained the exclusive right to provide telephone services in jails, detention centres, and other similar correctional facilities operated by Ontario. It shares its revenues with Ontario.
[17] In their Statement of Claim, the plaintiffs plead that that each instance a Class Member initiates a collect call pursuant to the OTMS and a Class Member accepts the collect call, there is a contract between Bell and the Class Member(s). The Plaintiffs plead that Bell contravened the Consumer Protection Act, 2002.
[18] Further, the Plaintiffs advance a statutory cause of action pursuant to s. 72 of the Telecommunications Act. Section 72 creates a right of action for loss or damages as a result of any act or omission that is contrary to the Telecommunications Act. In response to a Demand for Particulars, the Plaintiffs pled that Bell contravened CRTC direction 2015-546.
[19] Although s. 72(3) of the Telecommunications Act precludes any statutory cause of action “in relation to a rate charged by a Canadian carrier,” the Plaintiffs submit that this exclusion does not apply in the immediate case because the breach of the Act concerns consumer protection measures and disclosure requirements and thus the statutory cause of action is not in relation to a rate charged by a Canadian carrier.
[20] Bell disagrees that it has breached the Consumer Protection Act, 2002. Bell disagrees that it is liable to a statutory cause of action pursuant to s. 72 of the Telecommunications Act. In any event, Bell, submits that the Plaintiffs’ and the Class Members’ grievances are matters to be resolved by its regulator, the CRTC.
C. Procedural and Evidentiary Background
[21] Ms. Fareau and Mr. Capay commenced this proposed class action against Ontario and Bell on February 5, 2020. On August 25, 2021, the Plaintiffs delivered an Amended Fresh as Amended Statement of Claim.
[22] Ms. Fareau and Mr. Capay plead the following causes of action against Bell: (a) breach of consumer protection legislation; (b) unconscionable contracts; (c) breach of the Telecommunications Act; and (d) unjust enrichment.
[23] Rates for telecommunications services are regulated by the CRTC, and it is Bell’s submission that the essence of the Plaintiffs’ causes of action against Bell will require a determination of whether the rates charged under the OTMS were excessive.
[24] On January 6, 2021, the Plaintiffs delivered their motion record for certification.
[25] On June 30, 2021, Bell served a responding record and cross-motion record in response to the plaintiffs’ certification motion and in support of Bell’s cross-motion seeking to dismiss the Plaintiffs’ action for lack of jurisdiction. (Ontario also brings a motion to strike the Plaintiffs’ causes of action.)
[26] Bell’s record included an affidavit dated June 30, 2021 from Pierre-Luc Hébert. Mr. Hébert is Assistant General Counsel at BCE Inc., Bell’s parent company. Mr. Hébert obtained his law degree from the Université de Montréal in the late 1980s and was called to the Bar in Quebec in 1990. He has been continuously employed by Bell in a variety of legal counsel roles since 2003. Around 2009, he assumed his current role of Assistant General Counsel.
[27] An outline of Mr. Hébert’s affidavit is as follows:
a. Paragraphs 1-5 introduce Mr. Hébert.
b. Paragraphs 6-8 provide background information about the CRTC and an overview of the evidence.
c. Paragraphs 9 to 11, 13, 15 and 16 summarize statutory provisions that set out the powers of the CRTC.
d. Paragraphs 12 and 14 summarize the tariff system through which the CRTC regulates telecommunications companies and sets out aspects of Bell’s General Tariff.
e. Paragraphs 18 to 21 summarize the chronology of the regulations that governed long-distance and payphone services from 1997 to 2015.
f. Paragraphs 22 to 30 describe the historical process through which the CRTC came to require notice for non-cash payphone calls, including the correspondence that Bell exchanged with the CRTC.
g. Paragraphs 31 to 34 and 36 summarize a CRTC decision about the CCTS (Commissioner for Complaints for Telecommunications Services) and a Response to Request for Information in which the CRTC described the scope of the CCTS’s jurisdiction.
h. Paragraph 35 describes the fact that at least one recipient of a collect call from an Ontario Facility has made a complaint to the CCTS regarding long-distance non-cash payphone calls.
i. Paragraphs 37 and 38 summarize and attach Bell’s response to the CRTC’s direction that telecommunications companies provide notice for non-cash payphone calls.
j. Paragraphs 39 to 46 summarize Bell’s correspondence with the CRTC and Correctional Services Canada that led to the creation of a new system of telephone services for inmates that contains several limitations on the uses inmates can make of public telephones.
k. Paragraphs 39 to 46 also discuss Item 292 of Bell’s General Tariff, which deals specifically with inmate telephone services. These paragraphs also contain evidence regarding the operation of the OTMS and the lack of existing commentary from the CRTC regarding how Item 292 interacts with the rest of the CRTC’s regulatory framework.
[28] Thus, Mr. Hébert’s affidavit provides: (a) the factual background and contextual history of the regulatory framework in which the OTMS operates; (b) a summary of the regulatory decisions that apply to the rates for local and long-distance collect calls, the type of call permitted on the OTMS; (c) a summary of how the regulatory decisions have changed over time; (d) a summary of the regulatory decisions that the Plaintiffs allege that Bell has breached including Telecom Regulatory Policy CRTC 2015-546, (the only policy or decision that the Plaintiffs address in their certification factum); (e) publicly available documents along with summaries of these documents; (f) the history of how the OTMS came to be; and (g) a summary of the regulatory framework that the CRTC approved for inmate services.
[29] The Plaintiffs concede that all of the exhibits to Mr. Hébert’s affidavit are admissible.
[30] The Plaintiffs brought their motion to strike Mr. Hébert’s affidavit on July 15, 2021.
[31] The Plaintiffs cross-examined Mr. Hébert on his affidavit on August 12, 2021.
D. Discussion and Analysis
[32] The premise of the Plaintiffs’ elaborate and comprehensively analyzed and referenced legal argument is that Mr. Hébert’s evidence is opinion evidence which is not admissible unless Mr. Hébert’s testimony falls within one of the exceptions for opinion evidence, which it does not. This nicely articulated legal argument is a legal air ball.
[33] To use an analogy from basketball, the Plaintiffs’ motion to strike is a three-point air ball. In form, it is a beautiful athletic shot from some distance from the net that arcs skyward, but the ball misses its target completely and gracefully passes through the air. The opposition grabs the rebound and fast-breaks up the court.
[34] I agree with Bell’s arguments that:
a. Mr. Hébert does not give or purport to give expert evidence.
b. Mr. Herbert does not give or purport to give what is called a “solicitor’s affidavit.”
c. Mr. Hébert’s testimony is not inadmissible opinion evidence.
d. Mr. Hébert’s evidence is fact evidence about the context of the regulatory scheme in which the OTMS came into existence including the RFP and the contract with Ontario.
e. Mr. Hébert’s evidence is fact evidence about the context of the operation of the regulatory scheme under the OTMS including: (a) the technological operation of the OTMS; (b) the alleged contracting with Class Members; (c) the charging for collect calls; (d) the role of the CRTC; and (e) the role of the CCTS.
[35] In my opinion, the impugned paragraphs in Mr. Hébert’s affidavit contain only statements of fact. Where the evidence is given on basis of information or belief, Mr. Hébert sets out the source of his information. There is no opinion evidence. There is no expert opinion evidence from Mr. Hébert, which expert evidence, I and Bell and the Plaintiffs would all agree Mr. Hébert is not qualified to give.
[36] In short, Mr. Hébert stays within the evidentiary lane permitted for a partisan witness giving factual evidence.
[37] This is not to say that I have determined what weight, if any, to be given to Mr. Hébert’s evidence. It is simply to say that his evidence is properly admissible evidence for an interlocutory motion(s).
[38] The primary rule of evidence is that evidence is admissible if it is relevant and probative and there is no clear ground of policy or law for excluding it. In my opinion, Mr. Hébert’s evidence is relevant to both the certification motion and to Bell’s jurisdictional cross-motion.
[39] Further, the Plaintiffs’ bizarre concession that the regulatory documents appended as exhibits to Mr. Hébert’s affidavit are admissible - but not his evidence of the context in which those exhibits came into existence - also demonstrates that Mr. Hébert’s evidence is relevant and admissible.
[40] There are no clear grounds of policy or law to exclude Mr. Hébert’s relevant evidence. Here, the probative value of the affidavit evidence is not outweighed by policy considerations, such as danger of confusing the issues or misleading the trier of fact. The Plaintiffs are not in any way surprised by this evidence. The adducing of the evidence does not necessitate undue consumption of time. Reviewing Mr. Hébert’s testimony and his exhibits is time that necessarily must be spent to understand the Plaintiffs’ causes of action, to understand whether the Plaintiffs’ action is certifiable as a class action, and to understand Bell’s (and Ontario’s) jurisdictional arguments.
[41] I, therefore, conclude that Mr. Hébert’s evidence should not be struck.
[42] In these circumstances, it is not necessary to address the circumstance that the Plaintiffs cross-examined Mr. Hébert after moving close to return of the certification motion to strike his testimony but not the exhibits about which he testified.
E. Conclusion
[43] For the above reasons, the Plaintiffs’ motion is dismissed with costs to Bell in any event of the certification motion and of Bell’s jurisdiction motion.
Perell, J.
Released: December 22, 2021.
COURT FILE NO.: CV-20-00635778-00CP
DATE: 20211222
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
VANESSA FAREAU and RANSOME CAPAY
Plaintiffs
- and -
BELL CANADA and HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO
Defendants
REASONS FOR DECISION
PERELL J.
Released: December 22, 2021
[^1]: S.O. 1992, c. 6.
[^2]: S.C. 1993, c. 38
[^3]: S.O. 2002, c. 30, Sched. A.