Ontario Civil

Civil Procedure

CRTC did not provide viable procedure for resolution of issues

Service agreement for pre-paid phone card typically provided that phone card would expire if it was not used or topped up within specified time. Unused balance on phone card would be forfeited to service provider after card expired. There was practice of phone card suppliers seizing any unused balance on prepaid phone cards one day sooner than expected. Proposed class action targeted consumer complaints about expiry of cell phone credits and loss of prepaid credits. Plaintiff brought action against phone company for breach of contract, unjust enrichment, and breach of unfair practice provisions of Consumer Protection Act, 2002 (Ont.). Plaintiff brought motion to certify action as class action. Motion granted. Plaintiff’s proposal was revised. Five of seven common issues were certified. Subclass of “consumers” was added because subclass raised common issues that could be determined in class proceeding, but were not shared by other members of class. It could not be said that breach of contract and unjust enrichment claims had no chance of success or that they were plainly and obviously bound to fail. Issues of “unfair practices” and “what remedies” were not certified. Claim based on unfair practice provisions of Act on facts as pleaded had no chance of success because s. 18 of Act did not apply on facts. Impugned notifications did not induce plaintiff to enter agreement and were not unfair practices that triggered s. 18 remedies because no agreement was made after or while defendant engaged in unfair practice. Given that there were over one million class members, class proceeding was preferable procedure. Access to justice and judicial economy justified aggregation of potential claims into class proceeding. Canadian Radio-television and Telecommunications Commission did not provide viable procedure for resolution of issues.

Sankar v. Bell Mobility Inc. (Oct. 4, 2013, Ont. S.C.J., Edward Belobaba J., File No. CV-12-452867-CP) 235 A.C.W.S. (3d) 889.

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