Court File and Parties

Court File No.: CV-08-00360838-CP00 and CV-08-00360837-CP00

Date: 2025-11-06

Superior Court of Justice – Ontario

Re: Avraham Wellman, Plaintiff – and – TELUS Communications Company, Tele-Mobile Company, and TELUS Communications Inc., Defendants

And Re: Jason Corless and Bernie Cox, Plaintiffs – and – Bell Mobility Inc., Defendants

Before: Justice E.M. Morgan

Counsel:

• Joel Rochon, Golnaz Nayerahmadi, Eli Karp, Peter Jervis, Sarah Fiddes and Bryan Quick, for all Plaintiffs
• Zohaib Maladwala, Andrew Borrell, Tina Cody and Kirsten Sullivan, for the Defendants, TELUS Communications Company, Tele-Mobile Company, and TELUS Communications Inc.
• Dana Peebles, Gillian Kerr, Will Dandie, and Solomon McKenzie, for the Defendant, Bell Mobility Inc.

Heard: November 3, 2025

Motion to Consolidate

Background

[1] The Defendants in both of these class actions – the "TELUS" action (CV-08-00360838) and the "Bell" action (CV-08-00360837) – move to have the common issues tried together.

[2] The claims in both cases are centred on the Defendants' similar practices of rounding up the seconds to minutes on cell phone bills. Although the Defendants are, of course, independent companies with separate billing offices, they both engaged in the same accounting approach and, consequently, the two claims advance the same causes of action.

[3] The Plaintiffs in both claims are represented by the same counsel. The claims were issued at the same time, the certification motions were argued together, and, although there are minor factual differences, both cases revolved around the same arguments about historical marketing of phone services. Justice Conway certified both actions with the same or similar class definitions and the same common issues. At the certification motion, the similarity of the two cases was not a controversial proposition. In fact, Justice Conway specifically said as much at the outset of her reasons:

Mr. Wellman seeks to certify his action as a class proceeding against TELUS. Mr. Corless seeks to certify his action as a class proceeding against Bell. The parties agreed that given the similar factual and legal issues in both actions, the two certification motions would be heard together.

Wellman and Corless v. TELUS and Bell, 2014 ONSC 3318, at para. 3

[4] The discoveries have been separately pursued in the two cases. The Defendants submit that now that it is time to go to trial, the cases should be tried together much as they were certified together. The trial will be a common issues trial under the Class Proceedings Act, 1992, S.O. 1992, c. 6 ("CPA"), and the common issues are the same.

[5] I also understand that the expert evidence involving the marketing and historic billing of cell phone services will be the same for each action, and that only the damages evidence will be different given the different customer lists of each set of Defendants. It is self-evident that two separate trials of the common issues (other than those relating to damages) would raise the uncomfortable prospect of divergent answers to the identical common issues questions.

[6] Furthermore, counsel for Bell points out that if the cases are not tried either jointly or sequentially with one immediately following the other, there will already be a published judgment in one of the cases by the time the second one is tried. In that case, the second trial will not be a truly fair proceeding between two adversaries starting on an even playing field. By definition, one of the parties will have won the first case (and therefore will start the second case with a built-in advantage) and the other will have lost the first case (and therefore will start the second case with a built-in disadvantage).

[7] Plaintiffs' counsel oppose trying the two cases together, primarily because they fear that will entail further delay. They also submit that consolidating the cases will involve unnecessary evidentiary complexities, and will inconvenience both the parties and the court.

Legal Framework

[8] Rule 6.01 of the Rules of Civil Procedure permits the Court to order the consolidation, hearing together, or back-to-back hearing of proceedings. The threshold question is to determine whether any of the so-called "gateway" criteria under Rule 6.01(1) have been met, including:

(a) the extent to which the issues in each action are interwoven;

(b) whether the same damages are sought in both actions, in whole or in part;

(c) whether damages overlap and whether a global assessment of damages is required;

(d) whether there is expected to be a significant overlap of evidence or of witnesses among the various actions;

(e) whether the parties are the same;

(f) whether the lawyers are the same;

(g) whether there is a risk of inconsistent findings or judgment if the actions are not joined;

(h) whether the issues in one action are relatively straight forward compared to the complexity of the other actions;

(i) whether a decision in one action, if kept separate and tried first would likely put an end to the other actions or significantly narrow the issues for the other actions or significantly increase the likelihood of settlement;

(j) the litigation status of each action;

(k) whether there is a jury notice in one or more but not all of the actions;

(l) whether, if the actions are combined, certain interlocutory steps not yet taken in some of the actions, such as examinations for discovery, may be avoided by relying on transcripts from the more advanced action;

(m) the timing of the motion and the possibility of delay;

(n) whether any of the parties will save costs or alternatively have their costs increased if the actions are tried together;

(o) any advantage or prejudice the parties are likely to experience if the actions are kept separate or if they are to be tried together;

(p) whether trial together of all of the actions would result in undue procedural complexities that cannot easily be dealt with by the trial judge;

(q) whether the motion is brought on consent or over the objection of one or more parties.

014864 Ontario Ltd. v. 1721789 Ontario Inc., 2010 ONSC 3306, at para. 18

[9] In addition, the court must consider whether the balance of convenience requires such an order: Mattson v. Quiggin, 2017 ONSC 984, at para. 13. Under the circumstances, and given that this is a class action common issues trial on questions that are common between the two actions, the gateway criteria point overwhelmingly against trying the two actions in separate proceedings at separate times.

[10] In further support of that conclusion, the court must also take into account the policy of judicial economy set out in section 138 of the Courts of Justice Act, which states in mandatory language that, "As far as possible, multiplicity of legal proceedings shall be avoided." Two actions commenced together, certified together, raising the same causes of action and same common issues against Defendants in the same industry, operating in the same market, and engaged in the same accounting and billing practices, would add up to an unnecessary multiplicity of proceedings if the trials are conducted entirely apart.

Scheduling and Procedural Issues

[11] Having said that, it is incumbent on me to note that the civil trial list has not been helpful to the parties in scheduling a trial. The TELUS action was on the list for trial commencing in January 2025, but for unknown reasons (and through no fault of any party) it fell between the cracks and was never assigned to a trial judge. I gather that Plaintiffs' counsel tried to have the matter returned to a short list, but was not successful in having that done. Given the age of the actions, Plaintiffs' counsel then considered proceeding by way of summary judgment motion rather than trial, and concluded that summary judgment would be the most expeditious and procedurally appropriate way to go.

[12] The Defendants are of the view that summary judgment is not the right procedure for these cases. They point out that complex summary judgment cases have been described as less efficient than a trial: George Weston Ltd. v. Domtar Inc., 2012 ONSC 5001, at para. 55. They also observe that cases involving claims for aggregate damages can be particularly complex with intertwining issues, making them less amenable to a summary procedure: Ramdath v. George Brown College, 2014 ONSC 3066, at para. 91.

[13] In addition, they submit that there is a possibility that while the liability issues can be resolved on summary judgment, the damages will require a trial, and that such a bifurcated procedure has been described as inefficient and potentially unfair: Bayview Homes Partnership v. Haditaghi (2014), 2014 ONCA 450, 120 O.R. (3d) 438, at paras. 44-45 (CA). With all of this, Defendants' counsel urge me to rule that the actions must go to trial rather than be determined by means of summary judgment.

[14] I am not prepared to opine on the issue of trial vs. summary judgment motion here. To do so, I would have to delve far more deeply into the substantive controversy between the parties than the time and materials on this motion would allow. The question of whether summary judgment is appropriate under the circumstances can, and no doubt will, be raised by the Defendants at the hearing of the motion itself. It may well form an important pillar of their response to the Plaintiffs.

[15] It is up to the Plaintiffs and their counsel to determine whether they wish to proceed by way of summary judgment. Since they now indicate that is indeed what they intend to do, I will leave it to the judge hearing the matter to determine whether the summary judgment criteria have been made out, or whether a trial or some form of mini-trial or other procedure is called for.

[16] In my view, the question of whether the two actions should be heard separately or together is to be analyzed with respect to summary judgment in the same way as it is with respect to trial. The goal is "to avoid a multiplicity of proceedings; promote timely and inexpensive determination of disputes; and avoid inconsistent judicial findings": Windrift Adventures Inc. v. Ontario (Animal Care Review Board), 2023 ONCA 690, at para. 10.

[17] The two matters should not be heard separately, for the reasons of both efficiency and fairness discussed above. They should be heard consecutively over a single block of time. In all likelihood, that will mean booking 3 weeks of motion time.

[18] I would also say, as a matter of efficiency, that evidence presented in one of the motions can be used in the other motion so that the same facts and expert opinions do not have to be presented and proved twice. The extent to which each Defendant's counsel will be permitted to participate in the motion against the other Defendant can be left to the presiding judge to decide. It is the trial/motion judge who is the appropriate person to control the proceedings.

[19] At a case conference a number of months ago, when I learned of the difficulties encountered in scheduling a trial, I indicated that if a summary judgment motion were brought I would try to ensure that it would not suffer any further scheduling problems, and in pursuit of that goal I would schedule the motion on my own calendar and hear it myself. I tentatively scheduled motion time in the TELUS action for 4 days in November 2026, with the understanding that this might change as matters progressed.

[20] Now that that motion is to be heard together with a motion in the Bell case, and it has been explained how complex the two actions might be, it is evident that 4 days is not sufficient time. In addition to fact witnesses, there will be at least 3 or 4 expert witnesses on each side. Three weeks now appears to me to be a more accurate time estimate for the two summary judgment motions.

Case Management Judge's Role

[21] At the hearing of the present motion, counsel for Bell raised the same issue that had been raised when a trial of the TELUS case was first contemplated: who will be the presiding judge? More specifically, should it be me? Bell's counsel submits – very respectfully, I will add – that it should not be me who presides at either a trial or a summary judgment motion. He asks that I reconsider my offer to hear any upcoming summary judgment motion in light of the principals that govern case management and trial judges.

[22] I have been case management judge for these two actions for a number of years. In that capacity, I have decided a number of motions. Rules 37.15(1) and 77.06(2) provide that, "A judge who…hears [steps in a proceeding/motions under case management] shall not preside at the trial of the action or the hearing of the application, except with the written consent of all parties." It is evident, therefore, that I would not be the trial judge if one or both of these actions were to go to trial. The Rule is mandatory and, given that a Defendant does not consent, it would prohibit me from presiding at trial.

[23] Bell's counsel submits that although the two case management Rules are silent on summary judgment motions, the same principle should apply. After all, he argues, summary judgment is different in process, but not in substance, from what gets determined at trial. If the case management judge is not appropriate to make a final decision on the merits of an action at trial, that judge is no more appropriate to make a final decision on the merits of an action in a summary judgment motion.

[24] In Nirmalendran et al. v. T.E.C. Leaseholds Limited, 2021 ONSC 6823, at para. 45, a unanimous panel of Divisional Court determined that at a case conference a case management judge can fashion procedures for an upcoming summary judgment motion – e.g. determining the terms on which a given witness might be examined. But that ruling operated on the assumption – indeed, it was the premise of the controversy in the motion – that the case management judge would not be the presiding judge at the summary judgment motion.

[25] In fact, even the power of the case management judge to fashion discreet procedures for a summary judgment motion where she will not be presiding is very circumspect and dependent on the specifics of the case: Robichaud v. Constantinidis, 2018 ONSC 4204, at paras. 51-52. While case management is a flexible tool for judicial administration of class actions and other complex cases, it is a pre-trial mechanism that is not designed to engage with the ultimate adjudication of the merits of a claim.

[26] In light of the limited authority of a case management judge to intrude on the role of the summary judgment judge, it follows that the case management judge ought not insert himself into that role by appointing himself as the summary judgment judge over the objections of a party to the motion. As indicated, an objection was raised a year ago to my serving as trial judge, and that objection has been reiterated with respect to my serving as summary judgment motion judge.

[27] As I have further considered the matter, I see no cogent distinction between summary judgment and trial in terms of the principle articulated in Rules 37.15(1) and 77.06(2). The principles informing the Rules' disallowance of a case management judge as trial judge apply equally to summary judgment motions.

[28] As indicated, I have been case managing these two actions for years, and during that time have decided a number of motions that have been important in shaping the cases. Now that they are preparing for a final hearing on the merits, the parties deserve a judge with a fresh perspective on the claims.

[29] Since all parties have not consented to the case management judge presiding over the upcoming summary judgment motions, the demands of fair process dictate that I must bow out.

Disposition

[30] The Plaintiffs may proceed by way of summary judgment instead of trial. They are to do so in both the TELUS action and the Bell action. The two summary judgment motions are to be heard consecutively in one 3-week block of hearing time. It is for the motion judge to determine whether summary judgment can be granted under the circumstances and to decide what procedures are appropriate to those motions.

[31] Subject to any decision of the motion judge, evidence in one motion can be used as evidence in the other. The motion judge can determine the extent, if any, to which counsel for each of the Defendants can participate in the other Defendant's motion.

[32] As case management judge, I will not be presiding over the summary judgment motions. A new judge will be assigned as motion judge.

Date: November 6, 2025 Morgan J.