Anderson v. Bell Mobility Inc., (2015) 593 A.R. 79

• Judge: Côté, Sharkey and Wakeling, JJ.A.
• Court: Court of Appeal (Northwest Territories)
• Case Date: October 21, 2014
• Jurisdiction: Northwest Territories
• Citations: (2015), 593 A.R. 79

Anderson v. Bell Mobility Inc. (2015), 593 A.R. 79; 637 W.A.C. 79 (NWTCA)

MLB headnote and full text

Temp. Cite: [2015] A.R. TBEd. JA.071

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)

(A1-AP2013-000006; 2015 NWTCA 3)

Indexed As: Anderson v. Bell Mobility Inc.

Northwest Territories Court of Appeal

Côté, Sharkey and Wakeling, JJ.A.

January 7, 2015.

Summary:

The plaintiffs in this class action claimed that the defendant, Bell Mobility Inc., charged for non-existent services, namely 911 calling. Monthly bills in the Territories bore a 911 "service fee" of 75¢. Bell relied on the standard form service agreements, used in all parts of Canada. It argued that: (1) it had an express contractual right to collect 911 fees from customers in areas where no 911 service of any kind was available; and (2) the contracts were a juristic reason for Bell's enrichment from those fees.

The Northwest Territories Supreme Court, in a decision reported at [2013] Northwest Terr. Cases Uned. 25, held that Bell had breached the service agreements, and alternatively had been unjustly enriched. The Anderson plaintiffs sought full costs of the suit. The Court, in a decision reported at [2014] Northwest Terr. Cases Uned. 20, awarded costs on an enhanced basis of six times column 6 of the legislated costs tariff (Schedule A). Bell appealed both liability and the costs award.

The Northwest Territories Court of Appeal dismissed the liability appeal and the costs appeal, except for the reduction or taxation of one item.

Contracts - Topic 1130

Formation of contract - Form - Standard form contracts - General - [See Contracts - Topic 7521 ].

Contracts - Topic 2841

Consideration - Failure of consideration - General - The plaintiffs in this class action claimed that the defendant, Bell Mobility Inc., charged for non-existent 911 services -  Monthly bills in the Territories bore a 911 "service fee" of 75¢ - Bell relied on the standard form service agreements, used in all parts of Canada - It argued that: (1) it had an express contractual right to collect the 911 fees; and (2) the contracts were a juristic reason for Bell's enrichment from those fees - The trial judge held that Bell had breached the service agreements, and alternatively had been unjustly enriched - The Northwest Territories Court of Appeal considered an "interesting issue" raised by Bell; namely, "Must any claim for failure of consideration fail because the failure of consideration here is not total ... . In the Palachik case [Kiss v. Palachik et al. (1983) (S.C.C.)], the contract gave the winning party a significant chance or opportunity, which unexpectedly did not come to fruition. Yet the Supreme Court of Canada found failure of consideration. In my view, the failure of consideration here was close enough to total to be operative. And even if I am wrong, and the old cause of action for failure of consideration was not made out, that does not impair the other more general claim for unjust enrichment." - See paragraphs 71 to 75.

Contracts - Topic 3523

Performance or breach - Breach - What constitutes a breach - The plaintiffs in this class action claimed that the defendant, Bell Mobility Inc., charged for non-existent 911 services - Bell relied on the standard form service agreements - The trial judge held that Bell had breached the agreements - On appeal, Bell contended that the trial judge found that Bell was obliged by the contracts to hire live 911 operators - The Northwest Territories Court of Appeal stated that Bell confused a condition precedent with a covenant - "The trial judge expressly said the opposite ... . The trial judge held that calling 911 must reach some live operator, if Bell wished to charge a 911 fee ... . The allegation is that Bell collected, with some degree of compulsion, sums which no contract or legislation authorized. The trial judge agreed that that occurred, and that is the only breach of contract which he found. The plaintiffs argue that they are liable for 911 fees, only if, as, and when, there is an actual 911 service available in their area. They do not argue that Bell must create such a service, nor even that Bell must persuade local government to supply it." - See paragraphs 39 to 58.

Contracts - Topic 7431

Interpretation - Ambiguity - Choice between alternative interpretations - The plaintiffs in this class action claimed that the defendant, Bell Mobility Inc., charged for non-existent 911 services - Bell relied on the standard form service agreements - The trial judge held that Bell had breached the agreements - The Northwest Territories Court of Appeal held that the trial judge did not exclude or deny any established principle of interpretation - "The first rule of interpretation is that a document must be read as a whole, looking at all its words and trying to make them all fit together ... . The contractual terms on the 911 fee topic are all conditional and ambiguous ... [W]here the wording of the contract is ambiguous, a court should be slow to adopt an interpretation which gives one party pay for nothing, or for what is virtually nothing. That is because ambiguous words give the court a choice; those words should not be given the unfair or non-commercial or non-sensible alternate reading" - See paragraphs 28 to 32.

Contracts - Topic 7521

Interpretation - Surrounding circumstances - General - The plaintiffs in this class action claimed that the defendant, Bell Mobility Inc., charged for non-existent 911 services in the three Territories - Bell argued that it had an express contractual right to collect the 911 fees - It relied heavily on the evidence that the public in the three Territories knew that they had no 911 service - The Northwest Territories Court of Appeal held that the trial judge was not obliged by law to put heavier weight on that background fact - "Had these written contracts been specially drawn up for use in the three Territories, there might be some significance to that evidence. But ... they were Canada-wide contractual forms. Most parts of Canada have and have had 911 operator service for at least two generations. Therefore a reasonable observer in the Territories would probably infer that any references in the printed forms to 911 services, access, or fees, were for use in those parts of Canada offering such services and access. ... And background facts can never modify or overwhelm the contract's actual wording ... . Printed form contracts of adhesion are legitimate contracts, and make many types of commerce possible or economical. But it is very common that such printed forms refer to topics which do not exist and cannot exist, for that locale or customer." - See paragraphs 23 to 27.

Practice - Topic 210.3

Persons who can sue and be sued - Individuals and corporations - Status or standing - Class or representative actions - Costs - The plaintiffs were awarded full costs of the suit against the defendant, Bell Mobility Inc., based upon their success in the liability trial of this class action - On appeal, Bell argued that success was divided, and so the costs should be nil or small - The Northwest Territories Court of Appeal disagreed - Neither side had to succeed on all its arguments to win the suit - The issues on which the plaintiffs "lost" were merely alternate routes to their full success - As for the unsuccessful claim for punitive damages, "Courts often ignore one lost issue which took little extra time or effort" - Such near-total success in the result, despite divided issues, was very common in trials - "Most plaintiffs suggest various possible routes to success. Trial judges routinely award such plaintiffs full costs of the suit." - See paragraphs 85 to 91.

Practice - Topic 210.3

Persons who can sue and be sued - Individuals and corporations - Status or standing - Class or representative actions - Costs - The plaintiffs were awarded full costs of the suit against the defendant, Bell Mobility Inc., based upon their success in the liability trial of this class action - The trial judge held that six times column 6 of the legislated costs tariff (Schedule A) was appropriate - On appeal, Bell argued that actual trial time was short - The Northwest Territories Court of Appeal rejected the argument - The costs were for the whole lawsuit to date - The suit had gone on for seven years - The trial judge found that counsel did a great deal of work before trial to shorten and facilitate the trial - "[E]fficient streamlined trials are highly in the public interest. To refuse to reward efforts to achieve that would be perversely counterproductive, and unjust to boot. ... Therefore counting court hours is an unreliable measure for a costs award, especially in a class action ... . How much costs credit to give such extra pretrial preparation is a pure question of weight. The trial judge is far better equipped to assess that, and doubly so when he or she has managed the suit for some time. It is important to note that a short very efficient trial may preclude use of a small multiplier." - See paragraphs 92 to 96.

Practice - Topic 210.3

Persons who can sue and be sued - Individuals and corporations - Status or standing - Class or representative actions - Costs - The plaintiffs in this class action were awarded full costs of the suit against the defendant - The trial judge held that six times column 6 of the legislated costs tariff (Schedule A) was appropriate - The fees awarded amounted to about 44 % of full indemnity - The Northwest Territories Court of Appeal, in dismissing the appeal, considered the proper basis to arrive at a proper party-party costs award - "The precise method ordinarily does not matter. It is only necessary that the trial judge weigh all the relevant factors, omit no important factor, and be reasonable. There is usually more than one permissible way to get to a reasonable final number, which is the true goal. Weighing only one or two factors is not enough to set costs, and frequently different relevant factors will point in different directions. The exercise is one of balancing as well as weighing. ... One comparator is what full indemnity would be. ... Many commentators and Rule-making authorities have espoused a goal for party-party costs of 50% indemnity of reasonable legal fees. ... Another relevant factor is the size and importance of the issues, including dollar amounts." - See paragraphs 99 to 110.

Practice - Topic 210.3

Persons who can sue and be sued - Individuals and corporations - Status or standing - Class or representative actions - Costs - The plaintiffs were awarded full costs of the suit against the defendant, Bell Mobility Inc. - The trial judge held that six times column 6 of the legislated costs tariff (Schedule A) was appropriate - The Northwest Territories Court of Appeal, in dismissing the appeal, rejected Bell's argument that the trial judge relied on irrelevant factors - "[I]t was proper for the trial judge here to give some weight to 'access to justice'. He knew that some of the cases cited involved a losing plaintiff not paying costs (or paying reduced costs), and were not about the size of a winning plaintiff's costs. ... The trial judge briefly mentioned 'behavior modification' ... which Bell submits is inappropriate because it is punitive ... . But behavior modification is a legitimate goal of class actions, so it cannot be irrelevant to their costs ... . Surely timing of payment and risk of failure are more acute for the plaintiff's lawyer in a class action, than in ordinary suits. ... Here, the trial judge's favorable judgment on liability removes all non-quantum issues. Surely that should have great weight on costs issues." - The Court also rejected Bell's argument that the trial judge looked at its deep pockets and increased the costs for that reason - See paragraphs 111 to 116.

Practice - Topic 210.3

Persons who can sue and be sued - Individuals and corporations - Status or standing - Class or representative actions - Costs - The Anderson plaintiffs in this class action were awarded full costs of the suit against the defendant, Bell Mobility Inc. - The trial judge held that six times column 6 of the legislated costs tariff (Schedule A) was appropriate - On the appeal, Bell argued that specific items in the bill of costs appeared to be multiplied more than six times - The Northwest Territories Court of Appeal saw no palpable error or any unreasonableness in the items, except item 29 (written argument), with its apparent effective multiplier of about 37 - The amount of $36,000 was too high - The written final argument for the trial was "well done (and necessarily somewhat longer than a typical appellate factum). But some of this ground had been ploughed in previous motions and appeals, so huge new research was not necessary" - The costs reasons did not explain the item - The formal judgment was either internally inconsistent on that one item, or inconsistent with the trial judge's reasons - The Andersons could elect between reducing the amount to $18,000 or having item 29 taxed - See paragraphs 117 to 121.

Practice - Topic 210.3

Persons who can sue and be sued - Individuals and corporations - Status or standing - Class or representative actions - Costs - The Anderson plaintiffs in this class action were awarded full costs of the suit against the defendant, Bell Mobility Inc. - The trial judge held that six times column 6 of the legislated costs tariff (Schedule A) was appropriate - On appeal, Bell argued that Andersons' expert witness took up over one third of the trial, yet his evidence was found unhelpful; thus, costs as a whole should be reduced - The Northwest Territories Court of Appeal declined to interfere - Much of the time was occupied by Bell's unsuccessful attempts to keep the expert witness off the stand - The costs claimed were for the suit, not just for the trial - "Bell's approach to each stage of the dispute has raised substantive and semantic technical issues, and so it does not lie in Bell's mouth to argue that hiring an expert before trial to explain or counter that was unreasonable. ... [T]he costs test for hiring an expert is not retrospective; the question is what seemed reasonable back at the time when the expert was hired and did his work. ... The test for witness disbursements is not whose evidence the trial judge later adopted. ... The trial judge has to choose one; but that fact alone cannot mean that one side's retainer was proper and the other side's was improper. This trial judge knew the suit's history, and knew what he had in mind when he later deprecated this expert's evidence. ... It would be dangerous for the Court of Appeal to substitute its own reconstruction about this disbursement." - See paragraphs 122 to 127.

Practice - Topic 6931

Costs - General principles - Discretion of court - The Northwest Territories Court of Appeal stated that "No judge in the Northwest Territories is bound to calculate party-party costs on the tariff (Schedule A), nor even to calculate costs by any method which refers to that tariff. That tariff is merely a default mode for the taxing officer: see R 648(1)." - See paragraph 98.

Practice - Topic 7053.1

Costs - Party and party costs - Entitlement to party and party costs - Class or representative actions - [See fourth Practice - Topic 210.3 ].

Practice - Topic 7066

Costs - Party and party costs - Counsel fees - Written argument - [See fifth Practice - Topic 210.3 ].

Practice - Topic 7085

Costs - Party and party costs - Witness fees and costs of preparation for trial or appeal - Expert witness fees - [See sixth Practice - Topic 210.3 ].

Practice - Topic 7118.1

Costs - Party and party costs - Special orders - Multiplier - [See second Practice - Topic 210.3 ].

Practice - Topic 7641

Costs - The tariffs, schedules etc. - General - [See Practice - Topic 6931 ].

Cases Noticed:

Creston Moly Corp. v. Sattva Capital Corp. (2014), 358 B.C.A.C. 1; 614 W.A.C. 1; 461 N.R. 335; 2014 SCC 53, refd to. [para. 3].

Uhrig v. Zeiter, [1983] A.U.D. 1906 (Q.B. Master), refd to. [para. 6].

Consolidated-Bathurst Export Ltd. v. Mutual Boiler and Machinery Insurance Co., [1980] 1 S.C.R. 888; 32 N.R. 488; 112 D.L.R. (3d) 49, refd to. [para. 29].

J.A.S. v. Gross et al., [2002] 5 W.W.R. 54; 299 A.R. 111; 266 W.A.C. 111; 2002 ABCA 36, refd to. [para. 29].

Scalera v. Lloyd's of London, [2000] 1 S.C.R. 551; [2000] 5 W.W.R. 465; 253 N.R. 1; 135 B.C.A.C. 161; 221 W.A.C. 161; 2000 SCC 24, refd to. [para. 29].

Non-Marine Underwriters v. Scalera - see Scalera v. Lloyd's of London.

Benfield Corporate Risk Canada Ltd. v. Beaufort International Insurance Inc. et al. (2013), 553 A.R. 204; 583 W.A.C. 204; 2013 ABCA 200, refd to. [para. 29].

Eli Lilly & Co. et al. v. Novopharm Ltd. et al., [1998] 2 S.C.R. 129; 227 N.R. 201, refd to. [para. 30].

Kiss v. Palachik et al., [1983] 1 S.C.R. 623; 47 N.R. 148, refd to. [para. 71].

Wilde v. Archean Energy (2008), 429 A.R. 41; 421 W.A.C. 41; 2008 ABCA 132, refd to. [para. 89].

Elfar v. Elfar (2012), 539 A.R. 268; 561 W.A.C. 268; 2012 ABCA 375, refd to. [para. 89].

British Columbia (Minister of Forests) v. Okanagan Indian Band et al., [2003] 3 S.C.R. 371; [2004] 2 W.W.R. 252; 313 N.R. 84; 189 B.C.A.C. 161; 309 W.A.C. 161; 2003 SCC 71, refd to. [para. 90].

Metz v. Weisgerber - see N.M. v. F.W.

N.M. v. F.W. (2004), 348 A.R. 143; 321 W.A.C. 143; 2004 ABCA 151, refd to. [para. 90].

Hamilton v. Open Window Bakery Ltd. et al., [2004] 1 S.C.R. 303; 316 N.R. 265; 184 O.A.C. 209; 2004 SCC 9, refd to. [para. 91].

Sun Indalex Finance v. United Steelworkers - see Indalex Ltd. et al., Re.

Indalex Ltd. et al., Re, [2013] 1 S.C.R. 271; 439 N.R. 235; 301 O.A.C. 1; 2013 SCC 6, refd to. [para. 91].

Pauli et al. v. ACE INA Insurance Co. et al. (2004), 354 A.R. 348; 329 W.A.C. 348; 2004 ABCA 253, leave to appeal denied (2004), 332 N.R. 398 (S.C.C.), refd to. [para. 91].

Sankar v. Bell Mobility Inc. et al., [2013] O.T.C. Uned. 6886; 52 C.P.C.(7th) 111; 2013 ONSC 6886, refd to. [para. 95].

Fullowka et al. v. Pinkerton's of Canada Ltd. et al. (2008), 437 A.R. 390; 433 W.A.C. 390; 2008 NWTCA 9, refd to. [para. 96].

Sprung Instant Structures Ltd. v. Caswan Environmental Services Inc. et al. (1999), 232 A.R. 336; 195 W.A.C. 336 (C.A.), refd to. [para. 98].

Brewer v. Fraser Milner Casgrain LLP et al. (2008), 437 A.R. 79; 433 W.A.C. 79; 2008 ABCA 285, refd to. [para. 99].

Hill v. Hill Family Trust et al. (2013), 561 A.R. 50; 594 W.A.C. 50; 2013 ABCA 313, refd to. [para. 99].

Trizec Equities Ltd. v. Ellis-Don Management Services Ltd. et al. (1999), 251 A.R. 101; 1999 ABQB 801, affd. (1999), 244 A.R. 365; 209 W.A.C. 365; 1999 ABCA 306, refd to. [para. 102].

Canadian Egg Marketing Agency v. Pineview Poultry Products Ltd. et al. (1996), 38 Admin. L.R.(2d) 87 (N.W.T.C.A.), refd to. [para. 106].

Canadian Egg Marketing Agency v. Richardson - see Canadian Egg Marketing Agency v. Pineview Poultry Products Ltd. et al.

Vander Griendt v. Canvest Capital Management Corp. et al., [2014] A.R. TBEd. SE.048; 2014 ABQB 542, refd to. [para. 113].

McAteer et al. v. Devoncroft Developments Ltd. et al. (2003), 340 A.R. 1; 2003 ABQB 425, refd to. [para. 125].

Goodzeck v. Bassett Petroleum Distributors Ltd. et al., [2007] Northwest Terr. Cases 42; 2007 NWTSC 42, refd to. [para. 125].

Authors and Works Noticed:

Chitty on Contracts (31st Ed. 2012), paras. 29-065, 29-066 [para. 71].

Stevenson & Cིཾté, Civil Procedure Encyclopedia (2003), pp. 71-15 to 71-16 [para. 125].

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 (liability and costs) was heard on October 21, 2014, before Côté, Sharkey and Wakeling, JJ.A., of the Northwest Territories Court of Appeal. Côté, J.A., delivered the following judgment and reasons for judgment, filed at Yellowknife, N.W.T., on January 7, 2015.