Frey v. BCE Inc.,

• Jurisdiction: Saskatchewan
• Judge: Vancise, Jackson and Smith, JJ.A.
• Neutral Citation: 2011 SKCA 136
• Court: Court of Appeal (Saskatchewan)
• Date: 15 November 2011
• Citation: 2011 SKCA 136,(2011), 377 Sask.R. 156 (CA),[2012] 3 WWR 423,[2011] SJ No 708 (QL),11 CPC (7th) 28,377 Sask R 156,377 Sask.R. 156,(2011), 377 SaskR 156 (CA),[2011] S.J. No 708 (QL),377 SaskR 156

Frey v. BCE Inc. (2011), 377 Sask.R. 156 (CA);

    528 W.A.C. 156

MLB headnote and full text

Temp. Cite: [2011] Sask.R. TBEd. NO.075

Microcell Communications Inc., Microcell Solutions Inc., Fido Solutions Inc., Rogers Inc. and Rogers Wireless Inc. (appellants) v. Mark Frey, Trudy Betthel, Bryan Pawlachuk, Nathalie Pawlachuk, D & S Homes Ltd., Dorothy Dietz, Neil MacDonald, Neil Woolston, Erik Doucet, Betty Lou Gaudette, Anna Hanson, Julie Elkerton, Gregory Teed, Scott Andrews, David Musarai, Mark Burke, Rozanne Aquin, Jeff Parent, Corey Oppebeon, John Fearon, Nevin Law, Jerry Karalash, Jennifer Evenson, Danielle Favreau, Jeff Ledding, Terese Hafichuk-Walkin, Jessica Cordingley, Alison Weinberger, Terry Parker, Carol Walker, Cindy Belton, Leigh Edmunds, Lauren Tomashich, Stan Pappas, Amanda Donald, Richard Skuce, Lant Lutterodt, Shelley Frank, Steve Drover, Jon Gillis, and Michael Lucas (respondents)

(1519)

Telus Corporation, Telus Mobility, B.C. Tel, Telus Communications (B.C.) Inc., Clearnet Communications Inc. and Alberta Government Telephones (appellants) v. Mark Frey, Trudy Betthel, Bryan Pawlachuk, Nathalie Pawlachuk, and D & S Homes Ltd. et al. (respondents)

(1521)

Bell Aliant Regional Communications, Limited Partnership (appellant) v. Mark Frey, Trudy Betthel, Bryan Pawlachuk, Nathalie Pawlachuk, and D & S Homes Ltd. et al. (respondents)

(1522; 1599)

Bell Mobility Inc. (appellant) v. Mark Frey, Trudy Betthel, Bryan Pawlachuk, Nathalie Pawlachuk, D & S Homes Ltd. et al. (respondents)

(1523; 1598)

MTS Communications Inc. (appellant) v. Mark Frey, Trudy Betthel, Bryan Pawlachuk, Nathalie Pawlachuk, and D & S Homes Ltd. et al. (respondents)

(1524)

Saskatchewan Telecommunications and Saskatchewan Telecommunications Holding Corporation (appellant) v. Mark Frey, Trudy Betthel, Bryan Pawlachuk, Nathalie Pawlachuk, and D & S Homes Ltd. et al. (respondents)

(1525; 2011 SKCA 136)

Indexed As: Frey et al. v. BCE Inc. et al.

Saskatchewan Court of Appeal

Vancise, Jackson and Smith, JJ.A.

November 15, 2011.

Summary:

The plaintiffs applied under s. 6 of the Class Actions Act to certify their action against cell phone service providers as a class action on behalf of the millions of Canadians who subscribed to cell phone services. Until abolished in 1987, cell phone subscribers had to pay a federal licensing fee, typically collected by the service providers. The plaintiffs claimed that for the past 17 years, the service providers improperly collected the licensing fees under the guise of fees called system access fees. The plaintiffs claimed breach of contract, breach of a duty to inform, deceit, misrepresentation and negligence, collusion, breach of fiduciary duty, breach of competition and consumer protection legislation, and unjust enrichment.

The Saskatchewan Court of Queen's Bench, in a judgment reported (2006), 282 Sask.R. 1, dismissed the certification application. The only cause of action disclosed by the pleadings was unjust enrichment. There was an identifiable class all having the same claim (all Canadians who purchased wireless service since 1987 and paid a "system access fee"). There existed the required commonality respecting fact and law. The potential class numbered 12 million Canadians each claiming about $500. A class action was clearly the preferable procedure, resulting in judicial economy, access to justice and behaviour modification. However, the lack of a suitable proposed representative plaintiff and an inadequate litigation plan were fatal to the application. The court granted leave to reapply to address the deficiencies. The five defendant service providers from the Atlantic provinces applied to have the action as against them stayed or transferred to a Maritime province jurisdiction on the ground that the Saskatchewan court had no jurisdiction over them.

The Saskatchewan Court of Queen's Bench, in a judgment reported (2006), 292 Sask.R. 29, dismissed the defendants' application. The court had jurisdiction simpliciter over the Atlantic provinces defendants. The four Rogers companies and Microcell applied for an order removing some of them as defendants and dismissing the claim as against others. Secondly, those defendants not resident in Saskatchewan sought dismissal of the claims against them. The defendants also sought to stay the claims of those plaintiffs who were contractually bound to arbitrate any disputes.

The Saskatchewan Court of Queen's Bench, in a judgment reported (2006), 282 Sask.R. 35, allowed the application in part. The court removed Rogers Cantel Inc. and Rogers AT&T as defendants, dismissed the claim as against Rogers Communications Inc. and Microcell Telecommunications, and adjourned the stay application sine die. The plaintiffs' re-application for certification was heard.

The Saskatchewan Court of Queen's Bench, in a judgment reported (2007), 312 Sask.R. 4, allowed the application where a suitable representative plaintiff was put forward and a workable plan was produced. Four applications remained to be determined: (1) The Aliant Group sought (a) an amendment to the style of cause by substituting one party for several presently named, and (b) a stay or transfer of the claim against them on the basis that the court did not have jurisdiction simpliciter; (2) Bell Mobility sought dismissal of the claim against it because the court was not the convenient forum and jurisdiction should not be assumed; (3) Rogers Wireless Inc. and Fido Solutions Inc. sought a stay of the claim where it was brought on behalf of their customers who were subject to an arbitration clause; and (4) The Telus group likewise sought a stay of the claim brought on behalf of their customers who were subject to an arbitration clause.

The Saskatchewan Court of Queen's Bench, in a judgment reported (2008), 329 Sask.R. 42, ruled on the respective applications as follows: (1)(a) allowed, (1)(b) dismissed; (2) dismissed; (3) and (4) allowed so that the certification order was to be amended to exclude from the class any customer bound by an arbitration clause. The plaintiffs moved to amend the amended statement of claim and the style of cause to (1) remove all reference to a large number of representative names; (2) to add certain parties as defendants; and (3) to amend the certification order to certify a multi-jurisdictional class action and consequently otherwise describe the class.

The Saskatchewan Court of Queen's Bench, in a judgment reported (2009), 334 Sask.R. 55, granted the first motion and dismissed the last two. The defendants brought six applications for leave to appeal various decisions of the Court of Queen's Bench (dealing with the certification order). The defendants Bell Mobility and Bell Aliant brought two applications for leave to appeal re decisions respecting forum nonconveniens and jurisdiction simpliciter. The plaintiffs brought three applications for leave to appeal various decisions respecting leave to amend the amended statement of claim and style of cause.

The Saskatchewan Court of Appeal, per Smith, J.A., in a judgment reported (2010), 350 Sask.R. 117; 487 W.A.C. 117, ruled as follows: "leave to appeal is granted in relation to the proposed appeal against the certification order in files [six files for which the defendants sought leave]. Leave is granted to Bell Mobility ... to appeal the refusal ... to find that Saskatchewan is forum non conveniens in relation to the claim against Bell Mobility. Leave is also granted to Bell Aliant ... in relation to the order that Saskatchewan has jurisdiction simpliciter in relation to Bell Aliant. ... Leave is granted to [the plaintiffs] in relation to ... the denial of their application for an amendment to the certification order pursuant to the amendments to the Act in relation to certification of a national class action on an opt-out basis. Leave is denied in relation to the other two proposed appeals by [the plaintiffs]".

The Saskatchewan Court of Appeal dismissed all appeals.

Conflict of Laws - Topic 603

Jurisdiction - General principles - Jurisdiction simpliciter (territorial competence) - The plaintiffs applied to certify a class action on behalf of all cell phone subscribers against all cell phone service providers in Canada, challenging the authority to collect "system access fees" for the past 17 years under the guise of collecting abolished federal licensing fees - The five defendant service providers from Atlantic Canada (including Bell Aliant) challenged the court's jurisdiction over them - Bell Aliant was not ordinarily resident in Saskatchewan (subsequently registered to do business there) - No Bell Aliant customers were resident in Saskatchewan - The trial judge held that Saskatchewan courts had jurisdiction simpliciter over the defendants, as there existed a real and substantial connection between Saskatchewan and the facts in the case (Court Jurisdiction and Proceedings Transfer Act (CJPTA), s. 4(e)) - The defendants, who were part of a national network, were carrying on business in Saskatchewan within the meaning of s. 9(h) of the Act - Jurisdiction was based on a common issue of fact which applied to all Canadian plaintiffs and defendants - Exclusive jurisdiction clauses in the defendants' contracts did not preclude jurisdiction in Saskatchewan - Bell Aliant appealed - The Saskatchewan Court of Appeal dismissed the appeal - Whether a real and substantial connection existed was not limited to the factors set out in s. 9; s. 9 preserved a plaintiff's right to "prove other circumstances that constitute a real and substantial connection" - The court set out the factors supporting the court's territorial competence over Bell Aliant - The trial judge "correctly concluded that s. 9 of the CJPTA permits Saskatchewan to assert territorial competence over Bell Aliant" - The judge did not err in refusing to decline jurisdiction on the basis that Saskatchewan was not the most appropriate forum or in not giving effect to the exclusive jurisdiction clauses in the contracts - Enforcing the forum selection clause would offend "clear public policy" - The defendants should not be permitted to divide a national class action between various jurisdictions by using forum selection clauses - See paragraphs 78 to 119.

Conflict of Laws - Topic 605

Jurisdiction - General principles - Class actions - [See Conflict of Laws - Topic 603 ].

Conflict of Laws - Topic 1664

Actions - General - Forum conveniens - Considerations - [See Conflict of Laws - Topic 603 ].

Practice - Topic 209.3

Persons who can sue and be sued - Individuals and corporations - Status or standing - Class or representative actions - Certification - Considerations (incl. when class action appropriate) - The plaintiffs applied under s. 6 of the Class Actions Act to certify their action against cell phone service providers as a class action on behalf of the millions of Canadians who subscribed to cell phone services - Until abolished in 1987, cell phone subscribers had to pay a federal licensing fee, typically collected by the service providers - The plaintiffs claimed that for the past 17 years, the service providers improperly collected the licensing fees under the guise of fees called system access fees - The court held that the pleading established a cause of action in unjust enrichment; there was an identifiable class all having the same claim (all Canadians who purchased wireless service since 1987 and paid a "system access fee"); there existed the required commonality respecting fact and law; the potential class numbered 12 million Canadians each claiming about $500; and a class action was clearly the preferable procedure, resulting in judicial economy, access to justice and behaviour modification - The Saskatchewan Court of Appeal held that the judge did not err in finding common issues, in defining the members of the class and in finding that a class action was the preferable procedure for resolving the claims - See paragraphs 40 to 75.

Practice - Topic 209.3

Persons who can sue and be sued - Individuals and corporations - Status or standing - Class or representative actions - Certification - Considerations (incl. when class action appropriate) - One of the preconditions for certification of a class action was commonality of issues - The Saskatchewan Court of Appeal referred to the following guidance from the Supreme Court of Canada respecting the development of common issues: "(i) the resolution of common issues need not be determinative of each class member's claim ... (ii) success for one member must mean success for all in relation to the common issues ... (iii) all members of the class must benefit from that successful prosecution of the action, although not necessarily to the same extent ... (iv) the representative plaintiff need not show that everyone in the class shares the same interest in the resolution of the asserted common issue ... (v) a court should avoid framing commonality between class members in overly broad terms as inevitably such an action would ultimately break down into individual proceedings ... (vi) there must be some basis in fact for the common issues ... (vii) a court may find it necessary in certain cases to provide a nuanced answer to a common issue ... and (viii) differences among class members should not be taken into account at the commonalty stage, but should be considered instead in the context of determining the preferability of the class action over other methods of resolving the dispute as part of considering whether individual issues will overwhelm common issues ... the number of defendants, or indeed the number of contracts, is not decisive in determining whether common issues can be developed. There must, however, be a systemic basis that links the defendants, e.g., a common policy, practice or approach, such that it is possible to develop a common issue." - See paragraphs 56, 66.

Practice - Topic 9031

Appeals - Evidence on appeal - Admission of "new evidence" or "fresh evidence" - The plaintiffs brought a class action respecting "system access fees" charged by cell phone service providers since 1987 - The service providers appealed various decisions respecting the certification - The plaintiffs applied to admit fresh evidence on appeal - The service providers opposed admission of the fresh evidence on the grounds that appropriate notice was not given, the affiant was a person rejected as a suitable representative plaintiff and the evidence violated the hearsay rule - The Saskatchewan Court of Appeal refused to admit the fresh evidence, with the exception of evidence that Bell Aliant was registered in Saskatchewan - That evidence was reliable, was relevant to a potentially decisive issue and could reasonably be expected to have affected the outcome - The balance of the proposed evidence was of questionable reliability, was of limited applicability and was not necessary to resolve the issues on appeal - See paragraphs 14 to 17.

Restitution - Topic 64

Unjust enrichment - General - Juristic reason for enrichment - The plaintiffs applied under s. 6 of the Class Actions Act to certify a class action against cell phone service providers to recover "system access fees" charged to all cell phone subscribers since 1987 - The plaintiffs sought recovery of the "fees" on the basis of unjust enrichment - The trial judge held that the pleadings disclosed a cause of action for unjust enrichment - The service providers appealed - They agreed that the pleadings established an enrichment and a corresponding deprivation, but argued that the plaintiffs failed to plead sufficient facts to establish the absence of juristic reasons for the enrichment; that the fees were charged pursuant to contracts and the plaintiffs had to plead that the contracts were void or otherwise enforceable, which they did not do - The Saskatchewan Court of Appeal agreed that the pleadings disclosed a cause of action in unjust enrichment - The court stated that the pleadings were "clearly sufficient, if proven, to support the contention that the clauses in the cellular service contracts permitting collection of 'system access fees', properly interpreted in all the circumstances surrounding their implementation, including the regulatory history, past practice, timing and mode of implementation as well as representations made by the appellants to customers and the public, uniformly permitted collection of the 'system access fees' solely for the purpose of paying those fees to a third party, and did not authorize the appellants to retain the fees, or any portion thereof, for their own use. This constitutes a clear pleading that the appellants' enrichment by way of collection of these fees was not 'pursuant to the contracts', and the contracts therefore did not constitute a juristic reason for that enrichment" - See paragraphs 18 to 39.

Cases Noticed:

Toms Grain & Cattle Co. et al. v. Arcola (2006), 279 Sask.R 281; 372 W.A.C. 281; 2006 SKCA 20, refd to. [para. 13].

Sorotski v. CNH Global NV et al., [2008] 1 W.W.R. 386; 304 Sask.R. 83; 413 W.A.C. 83; 2007 SKCA 104, refd to. [para. 13].

Hollick v. Metropolitan Toronto (Municipality) et al., [2001] 3 S.C.R. 158; 277 N.R. 51; 153 O.A.C. 279; 2001 SCC 68, refd to. [para. 17].

Hoffman et al. v. Monsanto Canada Inc. et al. (2007), 293 Sask.R. 89; 397 W.A.C. 89; 283 D.L.R.(4th) 190; 2007 SKCA 47, refd to. [para. 18].

Garland v. Consumers' Gas Co., [2004] 1 S.C.R. 629; 319 N.R. 38; 186 O.A.C. 128; 2004 SCC 25, refd to. [para. 20].

Kiewit (Peter) Sons' Co. of Canada Ltd. et al. v. Eakins Construction Ltd., [1960] S.C.R. 361, refd to. [para. 26].

Rathwell v. Rathwell, [1978] 2 S.C.R. 436; 19 N.R. 91, refd to. [para. 26].

Jedfro Investments (U.S.A.) Ltd. et al. v. Jacyk Estate et al., [2007] 3 S.C.R. 679; 369 N.R. 329; 232 O.A.C. 385; 2007 SCC 55, refd to. [para. 26].

Pacific National Investments Ltd. v. Victoria (City) et al., [2004] 3 S.C.R. 575; 327 N.R. 100; 206 B.C.A.C. 99; 338 W.A.C. 99; 2004 SCC 75, refd to. [para. 26].

Bell Mobility Inc. v. Anderson et al., [2009] A.R. Uned. 60; 2009 NWTCA 3, refd to. [para. 33].

Anderson et al. v. Bell Mobility Inc., [2010] Northwest Terr. Cases Uned. 65; [2011] 2 W.W.R. 106; 2010 NWTSC 65, refd to. [para. 33].

Hunt v. T & N plc et al., [1990] 2 S.C.R. 959; 117 N.R. 321, refd to. [para. 39].

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. 42].

Rumley et al. v. British Columbia, [2001] 3 S.C.R. 184; 275 N.R. 342; 157 B.C.A.C. 1; 256 W.A.C. 1; 2001 SCC 69, refd to. [para. 48].

Parsons v. Coast Capital Savings Credit Union (2007), 240 B.C.A.C. 268; 398 W.A.C. 268; 2007 BCCA 247, leave to appeal refused (2007), 383 N.R. 382; 266 B.C.A.C. 317; 449 W.A.C. 317 (S.C.C.), refd to. [para. 48].

Andersen et al. v. St. Jude Medical Inc. et al., [2003] O.T.C. 826; 67 O.R.(3d) 136 (S.C.), supplemental reasons (2004), 48 C.P.C.(5th) 312; leave to appeal refused (2005), 136 A.C.W.S.(3d) 799 (Div. Ct.), refd to. [para. 59].

Healey v. Lakeridge Health Corp. et al., [2006] O.T.C. 981; 38 C.P.C.(6th) 145 (Sup. Ct.), refd to. [para. 59].

Griffith v. Winter et al., [2002] B.C.T.C. 1219; 23 C.P.C.(5th) 336; 2002 BCSC 1219, affd. (2003), 184 B.C.A.C. 121; 302 W.A.C. 121; 34 C.P.C.(5th) 216; 2003 BCCA 367, refd to. [para. 59].

Knight v. Imperial Tobacco Canada Ltd. et al. (2006), 225 B.C.A.C. 291; 371 W.A.C. 291; 267 D.L.R.(4th) 579; 2006 BCCA 235, refd to. [para. 59].

Cloud et al. v. Canada (Attorney General) et al. (2004), 192 O.A.C. 239; 247 D.L.R.(4th) 667 (C.A.), leave to appeal refused [2005] 1 S.C.R. vi; 344 N.R. 192; 207 O.A.C. 400, refd to. [para. 59].

Reid v. Ford Motor Co. et al., [2003] B.C.T.C. 1632; 2003 BCSC 1632, refd to. [para. 59].

Wuttunee et al. v. Merck Frosst Canada Ltd. et al., [2009] 5 W.W.R. 228; 324 Sask.R. 210; 451 W.A.C. 210; 2009 SKCA 43, refd to. [para. 59].

Harrington v. Dow Corning Corp. et al. (2000), 144 B.C.A.C. 51; 236 W.A.C. 51; 193 D.L.R.(4th) 67; 2000 BCCA 605, refd to. [para. 59].

Metera et al. v. Financial Planning Group et al., [2003] 10 W.W.R. 367; 332 A.R. 244, refd to. [para 60].

Lameman et al. v. Canada (Attorney General), [2005] 8 W.W.R. 442; 365 A.R. 1; 2004 ABQB 655, varied [2007] 2 W.W.R. 440; 404 A.R. 349; 394 W.A.C. 349; 2006 ABCA 392, affd. [2008] 1 S.C.R. 372; 372 N.R. 239; 429 A.R. 26; 421 W.A.C. 26; 2008 SCC 14, refd to. [para. 60].

Papaschase Indian Band No. 136 v. Canada (Attorney General) - see Lameman et al. v. Canada (Attorney General).

Marcotte v. Fédération de Caisses Desjardins du Québec, 2009 QCCS 2743, refd to. [para. 65].

Ayrton v. PRL Financial (Alta.) Ltd. et al., [2006] 2 W.W.R. 536; 370 A.R. 141; 2005 ABQB 311, affd. (2006), 384 A.R. 1; 367 W.A.C. 1; 265 D.L.R.(4th) 240; 2006 ABCA 88, refd to. [para. 65].

Collette v. Great Pacific Management Co. et al., [2003] B.C.T.C. 332; 2003 BCSC 332, refd to. [para. 65].

2038724 Ontario Ltd. et al. v. Quizno's Canada Restaurant Corp. et al., [2008] O.T.C. Uned. 365; 89 O.R.(3d) 252 (Sup. Ct.), revd. (2009), 250 O.A.C. 87; 96 O.R.(3d) 252 (Div. Ct.), affd. (2010), 265 O.A.C. 134; 100 O.R.(3d) 721; 2010 ONCA 466, leave to appeal refused [2011] 1 S.C.R. x; 417 N.R. 397, refd to. [para. 65].

Bodnar et al. v. Cash Store Inc. et al., [2005] B.C.T.C. 1228; 2005 BCSC 1228, affd. [2006] 9 W.W.R. 41; 227 B.C.A.C. 109; 374 W.A.C. 109; 2006 BCCA 260, refd to. [para. 65].

Bodnar v. Payroll Loans Ltd. et al., [2006] B.C.T.C. 1132; 2006 BCSC 1132, refd to. [para. 65].

MacKinnon v. National Money Mart Co. et al., [2005] B.C.T.C. 271; 2005 BCSC 271, refd to. [para. 65].

Caputo et al. v. Imperial Tobacco Ltd. et al., [2004] O.T.C. 112; 236 D.L.R.(4th) 348 (Sup. Ct.), refd to. [para. 65].

MacKinnon v. National Money Mart Co. et al. (2006), 224 B.C.A.C. 137; 370 W.A.C. 137; 265 D.L.R.(4th) 214; 2006 BCCA 148, refd to. [para. 66].

MacKinnon v. National Money Mart Co., [2007] B.C.T.C. Uned. B96; 2007 BCSC 348, refd to. [para. 66].

MacKinnon et al. v. National Money Mart Co. et al., [2010] B.C.T.C. Uned. 1008; 2010 BCSC 1008, refd to. [para. 66].

Nantais v. Telectronics Proprietary (Canada) Ltd. (1995), 25 O.R.(3d) 331 (Gen. Div.), refd to. [para. 74].

Alves et al. v. MyTravel Canada Holidays Inc. et al. (2011), 377 Sask.R. 55; 528 W.A.C. 55; 2011 SKCA 117, refd to. [para. 77].

Hunter v. Hunter, [2006] 5 W.W.R. 141; 269 Sask.R. 223; 357 W.A.C. 223; 2005 SKCA 76, refd to. [para. 80].

Stanway v. Wyeth Pharmaceuticals Inc. et al. (2009), 279 B.C.A.C. 158; 473 W.A.C. 158; 314 D.L.R.(4th) 618; 2009 BCCA 592, leave to appeal refused [2010] 1 S.C.R. xvi; 409 N.R. 383; 229 B.C.A.C. 142; 508 W.A.C. 142, refd to. [para. 80].

Morguard Investments Ltd. et al. v. De Savoye, [1990] 3 S.C.R. 1077; 122 N.R. 81, refd to. [para. 86].

Hunt v. Lac d'Amiante du Québec ltée et al., [1993] 4 S.C.R. 289; 161 N.R. 81; 37 B.C.A.C. 161; 60 W.A.C. 161, refd to. [para. 86].

Lombard General Insurance Co. of Canada v. Cominco Ltd. et al., [2009] 1 S.C.R. 321; 384 N.R. 351; 266 B.C.A.C. 32; 449 W.A.C. 32; 2009 SCC 11, refd to. [para. 89].

Teck Cominco Metals v. Lloyd's Underwriters - see Lombard General Insurance Co. of Canada v. Cominco Ltd. et al.

Laxton v. Jurem Anstalt et al. (2011), 304 B.C.A.C. 203; 513 W.A.C. 203; 334 D.L.R.(4th) 76; 2011 BCCA 212, refd to. [para. 89].

Dembroski v. Rhainds (2011), 304 B.C.A.C. 70; 513 W.A.C. 70; 333 D.L.R.(4th) 437; 2011 BCCA 185, refd to. [para. 89].

Penny v. Bouch (2009), 281 N.S.R.(2d) 238; 893 A.P.R. 238; 310 D.L.R.(4th) 433; 2009 NSCA 80, leave to appeal refused [2010] 3 S.C.R. v; 406 N.R. 387; 303 N.S.R.(2d) 400; 957 A.P.R. 400, refd to. [para. 89].

Check Group Canada Inc. v. Icer Canada Corp. et al. (2010), 299 N.S.R.(2d) 145; 947 A.P.R. 145; 2010 NSSC 463, refd to. [para. 89].

Muscutt et al. v. Courcelles et al. (2002), 160 O.A.C. 1; 213 D.L.R.(4th) 577 (C.A.), refd to. [para. 89].

Van Breda et al. v. Village Resorts Ltd. et al. (2010), 264 O.A.C. 1; 316 D.L.R.(4th) 201; 2010 ONCA 84, refd to. [para. 89].

Amchem Products Inc. et al. v. Workers' Compensation Board (B.C.), [1993] 1 S.C.R. 897; 150 N.R. 321; 23 B.C.A.C. 1; 39 W.A.C. 1, refd to. [para. 100].

Wall Estate et al. v. GlaxoSmithKline Inc. et al. (2010), 367 Sask.R. 21; 2010 SKQB 351, refd to. [para. 101].

Rimmer v. Adshead, [2002] 4 W.W.R. 119; 217 Sask.R. 94; 265 W.A.C. 94; 2002 SKCA 12, refd to. [para. 101].

Auto Haus Frohlich Ltd. and Frohlich v. Volkswagen Canada Inc., [1986] 1 W.W.R. 380; 65 A.R. 271 (C.A.), refd to. [para. 107, footnote 9].

Chateau Des Charmes Wines Ltd. v. Sabate USA Inc. et al., [2005] O.T.C. 936; 143 A.C.W.S.(3d) 276 (Sup. Ct.), refd to. [para. 107, footnote 9].

Pompey (Z.I.) Industrie et al. v. Ecu-Line N.V. et al., [2003] 1 S.C.R. 450; 303 N.R. 201, refd to. [para. 108].

The "Eleftheria", [1969] 1 Lloyd's Rep. 237, refd to. [para. 109].

E.K. Motors Ltd. v. Volkswagen Canada Ltd., [1973] 1 W.W.R. 466 (Sask. C.A.), refd to. [para. 109].

Viroforce Systems Inc. et al. v. R & D Capital Inc. (2011), 306 B.C.A.C. 271; 516 W.A.C. 271; 336 D.L.R.(4th) 570; 2011 BCCA 260, refd to. [para. 110].

Hudye Farms Inc. v. Canadian Wheat Board, [2011] 5 W.W.R. 506; 368 Sask.R. 157; 2011 SKQB 29, refd to. [para. 112].

Hans v. Volvo Trucks North America Inc. et al., [2010] B.C.T.C. Uned. 1700; 2010 BCSC 1700, refd to. [para. 112].

Expedition Helicopters Inc. v. Honeywell Inc. (2010), 262 O.A.C. 195; 319 D.L.R.(4th) 316; 2010 ONCA 351, refd to. [para. 115].

Magill v. Expedia Canada Corp. et al., [2010] O.T.C. Uned. 5247; 2010 ONSC 5247, refd to. [para. 118].

Lieberman et al. v. Business Development Bank of Canada, [2005] B.C.T.C. Uned. 137; 11 C.P.C.(6th) 348; 2005 BCSC 389, refd to. [para. 123].

Baxter v. Canada (Attorney General) et al., [2005] O.T.C. 391 (Sup. Ct.), refd to. [para. 123].

Statutes Noticed:

Class Actions Act, S.S. 2001, c. C-12.01, sect. 6 [para. 8, footnote 2].

Court Jurisdiction and Proceedings Transfer Act, S.S. 1997, c. C-41.1, sect. 4 [para. 82; sect. 9 [para. 83]; sect. 10 [para. 98].

Authors and Works Noticed:

Hogg, Peter W., and McKee, S. Gordon, Are National Class Actions Constitutional? (2009-10), 26 N.J.C.L. 279, p. 290 [para. 122].

Counsel:

Kent Thomson and Davit Akman, for the appellants, Microcell Communications Inc., Microcell Solutions Inc., Fido Solutions Inc., Rogers Inc., and Rogers Wireless Inc.;

Gord Kuski, Q.C., and Phil Gallet, for the appellants, Telus Corporation, Telus Mobility, B.C. Tel, Telus Communications (B.C.) Inc., Clearnet Communications Inc., and Alberta Government Telephones;

William Johnson, Q.C., for the appellants, Bell Aliant Regional Communications, Limited Partnership;

Kathryn Podrebara and Tim Morgan, for the appellant, Bell Mobility Inc.;

Jeff Grubb, Q.C., for the appellant, MTS Communications Inc.;

Robert W. Leurer, Q.C., Jason Mohrbutter and Tristan Culham, for the appellants, Saskatchewan Telecommunications and Saskatchewan Telecommunications Holding Corp.;

E.F.A. Merchant, Q.C., and Casey Churko, for the respondents, Mark Frey, Trudy Betthel, Bryan Pawlachuk, Nathalie Pawlachuk, D & S Homes Ltd. et al.

These appeals were heard on December 13-14, 2010, before Vancise, Jackson and Smith, JJ.A., of the Saskatchewan Court of Appeal.

On November 15, 2011, Jackson, J.A., delivered the following judgment for the Court of Appeal.