MTS Allstream Inc. v. Telus Communications Co., (2009) 466 A.R. 323 (QB)

• Judge: Read, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: October 16, 2009
• Citations: (2009), 466 A.R. 323 (QB);2009 ABQB 598

MTS Allstream Inc. v. Telus Com. Inc. (2009), 466 A.R. 323 (QB)

MLB headnote and full text

Temp. Cite: [2009] A.R. TBEd. OC.127

MTS Allstream Inc. (applicant) v. Telus Communications Company (respondent)

(0803 10964; 2009 ABQB 598)

Indexed As: MTS Allstream Inc. v. Telus Communications Co.

Alberta Court of Queen's Bench

Judicial District of Edmonton

Read, J.

October 19, 2009.

Summary:

MTS Allstream Inc. claimed before the Canadian Radio-Television and Telecommunications Commission (CRTC) that Telus Communications Co. was incorrectly charging certain amounts in connection with shared telecommunications infrastructure. The CRTC ordered Telus to repay the amounts, subject to "applicable limitation periods provided by law". Telus repaid the amounts to MTS in Alberta only to a date that it calculated in accordance with the Limitations Act. On August 1, 2008, MTS brought an originating notice action under rule 410(e) seeking a declaration that the Limitations Act did not entitle Telus to refuse to repay the amount MTS claimed was owing. On February 6, 2009, MTS commenced a statement of claim action, to ensure that it was not out of time in the event the Limitations Act applied. Telus obtained an adjournment of the originating notice action, and applied to consolidate the two actions. Alternatively, Telus sought an order that the actions be heard together or an order to stay the first action to await the outcome of the second action.

The Alberta Court of Queen's Bench dismissed the application. The court declined to make a consolidation order, given the very different stages the two actions were at, the different issues that arose in the statement of claim action, the delay that had already occurred in the originating notice action to the prejudice of MTS, and the increased costs which were likely to result. For the same reasons, the court declined to order that the actions be heard together. Further, there was no reason to stay the action commenced by originating notice.

Editor's Note: For a related case between the parties, see 466 A.R. 297; 2009 ABQB 131.

Practice - Topic 4123

Joinder of causes and consolidations - Consolidation of actions and applications or motions - When not available - Telus Communications Co. applied to consolidate two actions against it, both commenced by MTS Allstream Inc. - Both actions arose from the same set of facts and required a determination of whether the Limitations Act applied to the amounts said to be owing as a consequence of a decision of the Canadian Radio-Television and Telecommunications Commission (CRTC) - The Alberta Court of Queen's Bench dismissed the application - Three factors weighed against consolidation, including that the claims in the two actions were not the same - The issue raised in the first action was narrow and while it was included in the issues raised in the second action, the issues raised there were wider - The two actions were, in fact, quite different - There were no facts in issue in the first action - The issue was one of interpretation of the CRTC decision in terms of whether and how the Limitations Act was to be applied to it and, if it applied, the interpretation of that Act - The second action was an action to enforce the CRTC decision and, as a consequence, further issues arose in that context - For the same reason, the court declined to order that the actions be heard together - See paragraphs 11 to 14, 21.

Practice - Topic 4123

Joinder of causes and consolidations - Consolidation of actions and applications or motions - When not available - Telus Communications Co. applied to consolidate two actions against it, both commenced by MTS Allstream Inc. - The Alberta Court of Queen's Bench dismissed the application - A factor that weighed against consolidation was that the two actions were at very different stages - The first action, commenced under rule 410, was in the latter stages of being heard - By contrast, the second action had barely been commenced; in fact, MTS's position was that the statement of claim had not yet been served - No discoveries had been held in the second action; it might be months or even years before the action was ready for trial - On the other hand, the process necessary to have the first action heard did not require discovery - All the necessary steps to have the first action heard had been taken by the parties; the special chambers hearing that would conclude the action was slated to recommence - The first action had been much delayed (including several applications by Telus to stay the action) - MTS was entitled to have the issues it raised adjudicated without further delay and without further great expense - For the same reason, the court declined to order that the actions be heard together - See paragraphs 15 to 17, 21.

Practice - Topic 4123

Joinder of causes and consolidations - Consolidation of actions and applications or motions - When not available - Telus Communications Co. applied to consolidate two actions against it, both commenced by MTS Allstream Inc. - The Alberta Court of Queen's Bench dismissed the application - A factor that weighed against consolidation was that it might save time and resources both in terms of pre-trial procedures and in the trial of the second action if the questions raised in the first action were answered first - The result of the first action would refine and might narrow the issues in the second action - It followed, therefore, that ordering consolidation would not save court or financial resources and, instead, might increase those costs - There was little possibility of inconsistent verdicts as the issue common to both actions was an issue of law that lent itself to being severed and tried separately - For the same reason, the court declined to order that the actions be heard together - See paragraphs 18 and 19, 21.

Practice - Topic 5250

Trials - Consolidation of actions - General - The Alberta Court of Queen's Bench considered and applied the jurisprudence with respect to the general principles relating to the granting of a consolidation order, including the relevant factors which a court should consider in determining whether a consolidation order should be granted: "(i) whether there are common claims, disputes and relationships between the parties; (ii) whether consolidation will save time and resources in pre-trial procedures; (iii) whether time at trial will be reduced; (iv) whether one party will be seriously prejudiced by having two trials together; (v) whether one action is at a more advanced stage than the other; and (vi) whether consolidation will delay the trial of one action which will cause serious prejudice to one party" - The case law made it clear that the list was not exhaustive and that each case must be assessed on its own merits - In the end result, having weighed a number of factors, the court concluded that this was not an appropriate case for consolidation - See paragraphs 8 to 11.

Practice - Topic 5258

Trials - General - Trial of actions together or back to back - When appropriate - [See all Practice - Topic 4123 ].

Practice - Topic 5277

Trials - General - Stay of proceedings - When available - The Alberta Court of Queen's Bench stated that "An order for a stay is a matter of judicial discretion. The principles to be considered ... may be summarized as follows: a. Are the questions in the actions substantially the same? b. If so, has the defendant satisfied the court that a continuance of the action sought to be stayed would be oppressive or vexatious to him or would it otherwise abuse the powers of the court in some way? c. Has the defendant satisfied the court that the stay cause would not cause an injustice to the plaintiff?" - See paragraph 23.

Practice - Topic 5277

Trials - General - Stay of proceedings - When available - MTS Allstream Inc. commenced two actions against Telus Communications Co. - Telus argued that the first action should be stayed to await the outcome of the second action because the issues in the first action were included in the broader issues set out in the second; that to permit the first action to proceed would be unjust as it was disabled from examination for discovery in that action because it was brought by originating notice; and that the two actions were vexatious as they forced it to litigate the actions separately - The Alberta Court of Queen's Bench declined to stay the action - The issues in the second action were wider than those arising in the first - Further, the actions had different purposes - While the issue raised in the first action was central to the second action, it could easily be separated and was at a much more advanced stage than the second action - Telus had not shown that to continue the first action would be vexatious to it or an abuse of the court's process - Further, if MTS was disabled from continuing their long delayed first action, they would be prejudiced - There were more arguments in favour of staying the second action, in the interests of economic use of resources - However, given that the first action was to re-commence within weeks and given that Telus had not applied to stay the second action, staying of that action was unnecessary - See paragraphs 24 to 27.

Practice - Topic 5277.1

Trials - Stay of proceedings - Abuse of process - [See second Practice - Topic 5277 ].

Cases Noticed:

Alliance Pipeline Limited Partnership et al. v. Franklin (C.E.) Ltd. et al. (2007), 417 A.R. 1; 410 W.A.C. 1; 2007 ABCA 285, refd to. [para. 8].

Mikisew Cree First Nation v. Canada et al. (1998), 224 A.R. 157; 1998 ABQB 675, refd to. [para. 9].

Alberta v. Alberta Union of Provincial Empoyees (1984), 53 A.R. 277 (C.A.), refd to. [para. 23].

Statutes Noticed:

Rules of Court (Alta.), rule 229 [para. 7].

Counsel:

Kevin P. Feehan, Q.C., and Terry J. Williams (Fraser Milner Casgrain LLP), for the applicant;

Ariel Z. Breitman and Lesley E. Clayton (McCarthy Tétrault LLP), for the respondent.

This application was heard on October 16, 2009, by Read, J., of the Alberta Court of Queen's Bench, who delivered the following judgment and reasons for judgment, dated at Edmonton, Alberta, on October 19, 2009.