In Martin v. Société Telus
Communication, 2014 QCCS 1554, a class action was authorized
and the case was heard on the merits. The claim dealt with the
modification of text messaging fees of consumers who had entered
into fixed-term contracts with Telus. According to the Plaintiffs,
by modifying fees for incoming text messages Telus had breached s.
12 of the Quebec Consumer Protection Act
("Act"), which provides that "no
costs may be claimed from a consumer unless the amount thereof
is precisely indicated in the contract."
The Superior Court of Quebec made several points which are of
relevance to businesses with respect to their obligations under the
Act, as well as to particular remedies that may be
available to consumers who allege a violation of their rights under
First, the unilateral modification of fees during a fixed-term
contract is not permissible under article 12 of the
Act if the service provider has not informed the consumer
of the precise value of the modification prior to entering into the
contract. Here, there was an infraction to the Act
because even though consumers knew that Telus had a right under the
contract to unilaterally modify the fees at any time, the clause in
question did not specify what the precise amount of that
modification would be prior to entering into the contract.
Second, the Court clarifies that moral damages alleged in class
actions based on violations of the Act have to be proven.
Even if the mere proof of a violation of the Act generates
an absolute presumption that an injury has occurred, this
presumption does not compel a Court to systematically condemn a
defendant to compensate the class members for moral damages. In
order to claim moral damages, class members need to prove on a
balance of probabilities that they have suffered something more
than a mere inconvenience.
In this case, Plaintiffs were unable to show that the
modification of their text messaging fees caused them moral
Lastly, the Court concluded that a mere violation of the
Consumer Protection Act does not justify punitive damages
in all cases.
In order for a violation of the Act to justify the
award of punitive damages, a plaintiff must show that the
defendant's violation was intentional, malicious or vexatious,
and that their conduct displayed ignorance, carelessness or serious
negligence under the Act.
The Court found that Telus' conduct did not satisfy these
criteria since it was largely based on the guidelines set out in
the CRTC's Telecom Regulatory Policy (CRTC 2013-271) regarding
wireless service providers. Because Telus acted in conformity with
the Federal regulations, the Court was unable to conclude that its
conduct was an instance of gross negligence.
Although the class action was granted on the merits, the
Court's conclusions regarding the remedies available to class
members under the Act are rather favourable for businesses
whose operations may inadvertently violate a provision of this
It's not often that our little blog intersects with such titanic struggles as the U.S. presidential race – and by using the term "titanic" I certainly don't mean to suggest that anything disastrous is in the future.
J.J. v. C.C., is an interesting case in which the court held that an automotive garage owes a duty to minor children to secure the vehicles on the premises by locking the cars and safely storing the car keys...
In Irwin v. Alberta Veterinary Medical Association, 2015 ABCA 396, the Alberta Court of Appeal found that the "ABVMA" failed to afford procedural fairness to a veterinarian undergoing an incapacity assessment.
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