Canada: A Provincial Divide: BC Court Refuses To Certify "System Access Fee" Case Despite A Saskatchewan Court Certifying A Similar Case

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 these fees.

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.

  1. 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. Wyeth.3
  2. 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.
  3. 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 class action.

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. 4

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 SKQB 328

2 2012 BCCA 310.

3 2014 BCCA 36.

4 Koubi v. Mazda, 2012 BCCA 310 and Wakelam v. Wyeth, 2014 BCCA 36.

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