On June 5, 2014, the B.C. Supreme Court refused to certify a
proposed class action against a group of cell service providers
(Rogers, Fido, Bell Canada, and Telus). The action related to a
"system access fee" charged by each of the defendants.
The plaintiff claimed that the defendants misrepresented that the
fee was a tax or license fee that went directly to the government.
He alleged that this was a "deceptive act or practice"
and therefore a breach of the BC Business Practices and
Consumer Protection Act ("BPCPA") and that the
defendants were "unjustly enriched" by the collection of
A More Rigorous Approach to Certification
The BC Court did not follow the Saskatchewan Court's lead,
who certified a similar action involving several of the same
defendants and similar cell-service contracts. 1
Instead, the BC Court took a more rigorous approach.
Insufficient Pleadings. The BC Court
struck the BPCPA claim and the claim for monetary relief under that
act, finding that the plaintiff failed to properly plead the
material facts to support these allegations. The Court also struck
the unjust enrichment claim finding it was bound to fail because
there was a "juristic reason" for the defendants'
enrichment—subscribers were contractually
obligated to pay the system access fees. The Court held
the plaintiff could not rely on a breach of the BPCPA to argue that
the collection of the fees was "unjust" or illegal. In
this regard, the Court relied on recent BC Court of Appeal
decisions in Koubi v. Mazda2 and Wakelam v.
Class Definition Not Objective. The
Court found that the definition of a class member presented an
"insurmountable hurdle" for certification because it was
not objective. It required an investigation—by an individual
inquiry for each class member—the purposes for which each
subscriber bought the cell services.
Class Action Not the Preferable Procedure. The
Court held that a class action was not the "preferable
procedure" for resolving class members' claims. Since
there was no longer any claim for monetary relief, an ordinary
individual action would suffice. The plaintiff could achieve his
goals—seeking an injunction or declaration—without a
Significance of the Case
Following in the footsteps of recent BC Court of Appeal
decisions, this decision may indicate a willingness of BC courts to
apply a more rigorous scrutiny to the certification criteria.
It also demonstrates that there will not necessarily be a
unified approach to certification among Canadian courts in respect
of similar, or even identical, class actions brought in multiple
jurisdictions across Canada.
1 Then styled Frey et al v. BCE Inc. et al, 2006
2 2012 BCCA 310.
3 2014 BCCA 36.
4 Koubi v. Mazda, 2012 BCCA 310 and Wakelam
v. Wyeth, 2014 BCCA 36.
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...
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