Hafichuk-Walkin et al. v. BCE Inc. et al., (2015) 316 Man.R.(2d) 129 (QB)

JudgeSchulman, J.
CourtCourt of Queen's Bench of Manitoba (Canada)
Case DateMarch 03, 2015
JurisdictionManitoba
Citations(2015), 316 Man.R.(2d) 129 (QB);2015 MBQB 30

Hafichuk-Walkin v. BCE Inc. (2015), 316 Man.R.(2d) 129 (QB)

MLB headnote and full text

Temp. Cite: [2015] Man.R.(2d) TBEd. MR.021

Terese Hafichuk-Walkin, Mark Burk, Vivian Malay, Reuben Schucher, Steve Drover, Shelley Frank, John Gillis, Apartment Laundry Services Ltd., Mark Frey, Trudy Betthel, Bryan Pawlachuk, Nathalie Pawalchuk, D & S Homes Ltd., Jennifer Evenson, Danielle Favreau, Jeff Ledding, Jessica Cordingley, Alison Weinberger, Terry Parker, Carol Walker, Cindy Belton, Leigh Edmunds, Lauren Tomashich, Stan Pappas, Amanda Donald, Richard Skuce, Lant Lutterodt, John Doe I, John Doe II, John Doe III, John Doe IV, Jane Doe I, Jane Doe II, Jane Doe III, Jane Doe IV, John Doe Ltd. I, John Doe Ltd. II, John Doe Ltd. III, John Doe Ltd. IV, John Doe V, John Doe VI, John Doe VII, Jane Doe V, Jane Doe VI, Jane Doe VII, John Doe Ltd. V, John Doe Ltd. VI, John Doe VII, John Doe VIII, John Doe IX, Jane Doe VIII, Jane Doe IX, John Doe Ltd. VIII, John Doe Ltd. IX, John Doe X, John Doe XI, John Doe XII, John Doe XIII, Jane Doe X, Jane Doe XI, Jane Doe XII, Jane Doe XIII, John Doe Ltd. X, John Doe Ltd. XI, John Doe Ltd. XII, John Doe Ltd. XIII, John Doe XIV, Jane Doe XIV, John Doe Ltd. XIV, John Doe XV, John Doe XVI, Jane Doe XV, John Doe Ltd. XV, John Doe XVII, John Doe XVIII, Jane Doe XVI, John Doe Ltd. XVI, John Doe XIX, John Doe XX, Jane Doe XVII, John Doe Ltd. XVII, John Doe XXI, John Doe XXII, Jane Doe XVIII, John Doe Ltd. XVIII, John Doe XXIII, John Doe XXIV, Jane Doe XIX, John Doe Ltd. XIX, John Doe XXV, Jane Doe XX, John Doe Ltd. XX, John Doe XXVI, Jane Doe XXI, John Doe Ltd. XXI, John Doe XXVII, Jane Doe XXII, John Doe Ltd. XXII and Other John Does & Jane Does to be added (plaintiffs) v. BCE Inc., Bell Canada, Bell Mobility Cellular Inc., Bell Mobility Inc. Aliant Telecom Inc., Bell Atlantic, Maritime Tel & Tel Ltd., NBTel Inc., Island Telecom Inc., Newtel Communications Inc., MTS Communications Inc., Telus Corporation, Telus Mobility, B.C. Tel, Telus Communications (B.C.) Inc., Learnet Communications Inc., Alberta Government Telephones (AGT), Saskatchewan Telecommunications (SaskTel), Saskatchewan Telecommunications Holding Corporation, AT&T Canada Inc., Microcell Telecommunications Inc., Rogers Communications Inc., Rogers Cantel Inc., Rogers Wireless Inc. and Rogers AT&T Wireless (defendants)

(CI 04-01-39951; 2015 MBQB 30)

Indexed As: Hafichuk-Walkin et al. v. BCE Inc. et al.

Manitoba Court of Queen's Bench

Winnipeg Centre

Schulman, J.

March 3, 2015.

Summary:

In 2004, the plaintiffs claimed certification of an action in Manitoba in connection with "system access fees" alleged to have been charged improperly to cell phone users. Counsel for the plaintiffs filed similar actions in eight other provinces. In 2014, the defendants moved to dismiss the action as an abuse of process.

The Manitoba Court of Queen's Bench, in a decision reported at (2014), 308 Man.R.(2d) 215, granted the motion. The action was stayed unconditionally. At issue was costs.

The Manitoba Court of Queen's Bench awarded tariff fees of $10,000 to the defendant BCE Inc., tariff fees of $5,000 to the defendants Rogers and MTS, plus disbursements and GST and PST for each.

Practice - Topic 210.3

Persons who can sue and be sued - Individuals and corporations - Status or standing - Class or representative actions - Costs - In 2004, the plaintiffs claimed certification of an action in Manitoba in connection with "system access fees" alleged to have been charged improperly to cell phone users - In 2014, the action was dismissed as an abuse of process - The defendants BCE Inc. and Rogers sought solicitor and client costs - The defendant MTS sought costs on a tariff basis - The plaintiffs asserted that s. 37(1) of the Class Proceedings Act prohibited an order for costs - The Manitoba Court of Queen's Bench held that the bar in s. 37(1) did not apply to this motion - The blanket denial of an award of costs in class proceedings did not come into play until the filing of the motion for certification - Further, s. 37(2) provided for costs where, as here, a proceeding was found to be abusive - While the plaintiffs' conduct was found to constitute abuse, it was more akin to excessive conduct than the reprehensible scandalous or outrageous conduct that would justify an order for solicitor and client costs - However, the plaintiffs' claim was very large - An order for double the tariff ($10,000) for BCE Inc. was appropriate - The tariff ($5,000) was appropriate for Rogers and MTS - Rogers' claim for travel expenses for its counsel was disallowed - All disbursements claimed for service of documents and photocopying were allowed.

Practice - Topic 7053.1

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

Practice - Topic 7134

Costs - Party and party costs - Disbursements - Photocopies, scanning, printing or binding - [See Practice - Topic 210.3 ].

Practice - Topic 7137

Costs - Party and party costs - Disbursements - Travelling expenses - Counsel - [See Practice - Topic 210.3 ].

Practice - Topic 7150.7

Costs - Party and party costs - Disbursements - Delivery and service charges - [See Practice - Topic 210.3 ].

Practice - Topic 7454

Costs - Solicitor and client costs - Entitlement to solicitor and client costs - Improper, irresponsible or unconscionable conduct - [See Practice - Topic 210.3 ].

Cases Noticed:

Judges of the Provincial Court (Man.) v. Manitoba et al. (2013), 294 Man.R.(2d) 273; 581 W.A.C. 273; 2013 MBCA 74, refd to. [para. 10].

Statutes Noticed:

Class Proceedings Act, S.M. 2002, c. 14; C.C.S.M., c. C-130, sect. 37(1), sect. 37(2) [para. 7].

Counsel:

Evatt F.A. Merchant and Casey R. Churko, for the plaintiffs;

Kathryn Podrebarac and Alan Melamud, for the defendants, Bell;

Candace Bishoff, for the defendant, MTS Communications Inc.;

James Bunting and Maureen Littlejohn, for the defendants, Rogers.

This matter was heard by Schulman, J., of the Manitoba Court of Queen's Bench, Winnipeg Centre, who delivered the following judgment on March 3, 2015.

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