Anderson et al. v. Bell Mobility Inc., (2012) 524 A.R. 69

• Judge: Côté, Hunt and Slatter, JJ.A.
• Court: Court of Appeal (Northwest Territories)
• Case Date: January 18, 2012
• Jurisdiction: Northwest Territories
• Citations: (2012), 524 A.R. 69

Anderson v. Bell Mobility Inc. (2012), 524 A.R. 69; 545 W.A.C. 69 (NWTCA)

MLB headnote and full text

Temp. Cite: [2012] A.R. TBEd. MR.007

Bell Mobility Inc. (appellant/defendant) v. James Douglas Anderson and Samuel Anderson, on Behalf of Themselves and All Other Members of a Class Having a Claim Against Bell Mobility Inc. (respondents/plaintiffs)

(A-1-AP2011000017; 2012 NWTCA 4)

Indexed As: Anderson et al. v. Bell Mobility Inc.

Northwest Territories Court of Appeal

Côté, Hunt and Slatter, JJ.A.

February 14, 2012.

Summary:

The Andersons sought to pursue a class action for damages against Bell Mobility Inc., alleging that they were charged each month for 911 emergency telephone service, but no such service existed anywhere in the Northwest Territories. Bell Mobility Inc. applied to strike the statement of claim on the ground that it disclosed no cause of action.

The Northwest Territories Supreme Court, in a decision reported [2008] Northwest Terr. Cases Uned. 85; 2008 NWTSC 85, dismissed the application. Bell Mobility appealed.

The Northwest Territories Court of Appeal, in a decision reported 524 A.R. 1; 545 W.A.C. 1, dismissed the appeal. The Andersons pursued the certification application.

The Northwest Territories Supreme Court, in a decision reported [2010] Northwest Terr. Cases Uned. 65, certified the case as a class action. The Andersons applied for costs of their successful certification application.

The Northwest Territories Supreme Court, in a decision reported [2011] Northwest Terr. Cases Uned. 28, awarded costs accordingly. After the certification order, the Andersons filed a reply. Bell Mobility sought to strike a paragraph in the reply, arguing that the Andersons had added new facts that raised a new claim of relief in unjust enrichment that required an application to amend their statement of claim.

The Northwest Territories Supreme Court, in a decision reported [2011] Northwest Terr. Cases Uned. 40, dismissed the application to strike. Bell Mobility appealed.

The Northwest Territories Court of Appeal, in the decision reported below, allowed the appeal and struck the impugned paragraph.

Practice - Topic 1703

Pleadings - Reply and subsequent pleadings - Matters properly included in reply - The plaintiffs statement of claim alleged that the defendant telephone company charged a monthly fee for 911 (emergency) call service, but provided none (i.e., the defendant was unjustly enriched because of a total failure of consideration) - Later, in a reply, the plaintiff alleged that the fees complained of vastly exceeded the defendant's expenses (para. 2(iii)) (i.e. that consideration did pass, but the defendant's profits were excessively large) - The defendant applied to strike para. 2(iii) of the reply - The Northwest Territories Court of Appeal struck the impugned paragraph and ruled that it could not be reintroduced elsewhere in the plaintiff's pleadings - The reply gave rise to a new cause of action (i.e., a total failure of consideration and excessive consideration were not the same thing) - If it was a viable cause of action, it should have been introduced by an amendment to the statement of claim, not in the reply - In any event, paragraph 2(iii) disclosed no reasonable cause of action.

Practice - Topic 2230

Pleadings - Striking out pleadings - Grounds - Failure to disclose a cause of action or defence - [See Practice - Topic 1703 ].

Practice - Topic 2230.7

Pleadings - Striking out pleadings - Grounds - Pleading new claim in reply - [See Practice - Topic 1703 ].

Cases Noticed:

Madill v. Alexander Consulting Group Ltd. et al. (1999), 237 A.R. 307; 197 W.A.C. 307; 1999 ABCA 231, refd to. [para. 8].

Elder Advocates of Alberta Society et al. v. Alberta et al. (2011), 416 N.R. 198; 499 A.R. 345; 514 W.A.C. 345; 2011 SCC 24, refd to. [para. 10].

British Columbia v. Imperial Tobacco Canada Ltd. et al. (2011), 419 N.R. 1; 308 B.C.A.C. 1; 521 W.A.C. 1; 355 D.L.R.(4th) 513; 2011 SCC 42, refd to. [para. 15].

Western Canadian Shopping Centres Inc. et al. v. Dutton et al., [2001] 2 S.C.R. 534; 272 N.R. 135; 286 A.R. 201; 253 W.A.C. 201; 2001 SCC 46, refd to. [para. 15].

O'Sullivan v. Hamilton Health Sciences Corp. (Hamilton General Hospital Division), [2011] O.A.C. Uned. 472; 2011 ONCA 507, refd to. [para. 17].

Diallo v. Toronto Community Housing Corp. et al. (2011), 284 O.A.C. 202; 2011 ONCA 424, refd to. [para. 22].

Authors and Works Noticed:

Goff, Robert, and Jones, Gareth, The Law of Restitution (7th Ed. 2007), para. 1-07 [para. 9]; para. 13-37 [para. 11].

Handa et al., Communications Law in Canada (2011 looseleaf), § 4.54 [para. 18].

Ryan, Canadian Telecommunications Law and Regulation (2009 looseleaf), §§ 600, 617 and 618 [para. 18].

Stevenson, William A., and Côté, Jean E., Civil Procedure Encyclopedia (2003), vol. 1, c. 21, pp. 2, 3 and 31 [para. 17]; vol. 1, c. 21, part B.1 [para. 26]; vol. 2, c. 76, pp. 26 to 28 [para. 15]; vol. 3, c. 56, parts G.6 and J [para. 22].

Counsel:

R.J.C. Deane and B.W. Dixon, for the appellant/defendant;

K.M. Landy and S.S. Marr, for the respondents/plaintiffs.

This appeal was heard on January 18, 2012, before Côté, Hunt and Slatter, JJ.A., of the Northwest Territories Court of Appeal. The following memorandum of judgment was filed by the court in Yellowknife, N.W.T., on February 14, 2012.