Turner v. Bell Mobility Inc., (2016) 612 A.R. 53

• Judge: Berger, Watson and Rowbotham, JJ.A.
• Court: Court of Appeal (Alberta)
• Case Date: October 07, 2015
• Citations: (2016), 612 A.R. 53;2016 ABCA 21

Turner v. Bell Mobility Inc. (2016), 612 A.R. 53; 662 W.A.C. 53 (CA)

MLB headnote and full text

Temp. Cite: [2016] A.R. TBEd. JA.095

Christy Turner (respondent/appellant on cross-appeal/plaintiff) v. Bell Mobility Inc. (appellant/respondent on cross-appeal/defendant)

(1503-0094-AC)

Christy Turner (respondent/appellant on cross-appeal/plaintiff) v. Rogers Communications Partnership (appellant/respondent on cross-appeal/defendant)

(1503-0096-AC; 2016 ABCA 21)

Indexed As: Turner v. Bell Mobility Inc.

Alberta Court of Appeal

Berger, Watson and Rowbotham, JJ.A.

January 26, 2016.

Summary:

The plaintiffs, represented by the Merchant Law Group (MLG), commenced a class action against the defendant telecommunication companies, alleging that they had unlawfully charged cell phone system access fees. MLG brought eight similar class proceedings against the defendants in other Canadian jurisdictions, including Saskatchewan. Two of the defendants applied to strike or stay the Alberta action, arguing that it was an abuse of process because the Saskatchewan action had already been certified as a multijurisdictional class action on essentially the same subject matter and with the same putative class members.

The Alberta Court of Queen's Bench, in a decision reported at (2015), 610 A.R. 345, dismissed the application, finding that the Alberta action involved a different national class than the Saskatchewan action. However, the court granted a temporary stay which would permit Albertans who wished to be part of the Saskatchewan action to opt-in, thus setting the class definition in the Alberta action to those who had not opted-in the Saskatchewan action. In this way, the class members in the two actions would not overlap. The defendants appealed.

The Alberta Court of Appeal allowed the appeal and stayed the action as an abuse of process.

Courts - Topic 2015

Jurisdiction - General principles - Controlling abuse of its process (incl. abuse of process by relitigation) - [See Practice - Topic 210.2 ].

Practice - Topic 208.2

Persons who can sue and be sued - Individuals and corporations - Status or standing - Class actions - Members of class - National class - [See Practice - Topic 210.2 ].

Practice - Topic 209.8

Persons who can sue and be sued - Individuals and corporations - Status or standing - Class actions - Notice to members of class (incl. opt-out process) - [See Practice - Topic 210.2 ].

Practice - Topic 209.22

Persons who can sue and be sued - Individuals and corporations - Status or standing - Class actions - Members of class - Non-resident class members (incl. jurisdiction) - [See Practice - Topic 210.2 ].

Practice - Topic 210.2

Persons who can sue and be sued - Individuals and corporations - Status or standing - Class actions - Procedure - Multiple or competing actions - The plaintiffs commenced a class action against the defendant telecommunication companies, alleging that they had unlawfully charged cell phone system access fees - Plaintiffs' counsel brought eight similar class proceedings against the defendants in other Canadian jurisdictions, including Saskatchewan - Two of the defendants applied to strike or stay the Alberta action, arguing that it was an abuse of process because the Saskatchewan action had already been certified as a multijurisdictional class action on essentially the same subject matter and with the same putative class members - The chambers judge dismissed the application, finding that the Saskatchewan action's opt-in provisions were a significant detriment to non-resident class members, and a multiplicity of proceedings was therefore justified in order to protect the participation and access to justice rights of Albertans - The Alberta Court of Appeal allowed the defendants' appeal - The Saskatchewan courts had refused to allow the Saskatchewan action to be converted from an opt-in to an opt-out action - This amounted to a decision by a competent court that there would be adequate representation of potential plaintiffs by continuing with an opt-in approach - The Alberta action was a collateral attack on that decision, and on the limitation of causes of action certified by the Saskatchewan courts - The chambers judge's decision contradicted the weight of caselaw on this very set of claims from across the country - This was not in the public interest and undermined the objectives of national class action proceedings.

Practice - Topic 5277.1

Trials - General - Stay of proceedings - Abuse of process - [See Practice - Topic 210.2 ].

Practice - Topic 5361

Dismissal of action - Grounds - General and want of prosecution - Abuse of process - [See Practice - Topic 210.2 ].

Practice - Topic 5408.1

Judgments and orders - General - Collateral attack - [See Practice - Topic 210.2 ].

Cases Noticed:

Frey et al. v. BCE Inc. et al. (2006), 282 Sask.R. 1; 2006 SKQB 328, refd to. [para. 2].

Frey et al. v. BCE Inc. et al. (2008), 329 Sask.R. 42; 2008 SKQB 79, affd. (2011), 377 Sask.R. 156; 528 W.A.C. 156; 11 C.P.C.(7th) 28; 2011 SKCA 136, leave to appeal refused (2012), 436 N.R. 397; 405 Sask.R. 320; 563 W.A.C. 320 (S.C.C.), refd to. [para. 2].

Frey v. Bell Mobility Inc. - see Frey et al. v. BCE Inc. et al.

Canada (Minister of Citizenship and Immigration) v. Tobiass et al., [1997] 3 S.C.R. 391; 218 N.R. 81, refd to. [para. 4].

Reece et al. v. Edmonton (City) et al. (2011), 513 A.R. 199; 530 W.A.C. 199; 335 D.L.R.(4th) 600; 2011 ABCA 238, refd to. [para. 4].

Enron Canada Corp. v. Husky Oil Operations Ltd. (2007), 401 A.R. 291; 391 W.A.C. 291; 2007 ABCA 27, refd to. [para. 4].

Clark v. Complaints Inquiry Committee (2012), 524 A.R. 322; 545 W.A.C. 322; 2012 ABCA 152, refd to. [para. 4].

Dool Estate, Re (2009), 448 A.R. 1; 447 W.A.C. 1; 2009 ABCA 70, refd to. [para. 4].

Petroasia Energy Inc. et al. v. Samek LLP et al. (2008), 440 A.R. 1; 438 W.A.C. 1; 2008 ABCA 323, refd to. [para. 4].

Reference Re Secession of Quebec, [1998] 2 S.C.R. 217; 228 N.R. 203, refd to. [para. 6].

Canada Post Corp. v. Lépine, [2009] 1 S.C.R. 549; 387 N.R. 91; 2009 SCC 16, refd to. [para. 6].

Parsons v. Ontario - see Kotyk Estate et al. v. Canadian Red Cross Society et al.

Kotyk Estate et al. v. Canadian Red Cross Society et al. (2015), 331 O.A.C. 71; 381 D.L.R.(4th) 667; 2015 ONCA 158, leave to appeal granted [2015] S.C.C.A. No. 203, refd to. [para. 7].

Endean v. Canadian Red Cross Society et al. (2014), 352 B.C.A.C. 7; 601 W.A.C. 7; 49 C.P.C.(7th) 316; 2014 BCCA 61, leave to appeal granted [2014] S.C.C.A. No. 170, refd to. [para. 7].

Grovit et al. v. Doctor et al., [1997] 2 All E.R. 417 (H.L.), refd to. [para. 8].

Frey et al. v. BCE Inc. et al. (2009), 334 Sask.R. 55; 2009 SKQB 165, refd to. [para. 14].

Collins et al. v. BCE Inc. et al. (2010), 352 Sask.R. 205; 2010 SKQB 74, refd to. [para. 15].

Chatfield v. Bell Mobility Inc. et al., [2013] Sask.R. Uned. 77; 2013 SKQB 293, refd to. [para. 15].

Bear et al. v. Merck Frosst Canada & Co. (2011), 385 Sask.R. 76; 536 W.A.C. 76; 345 D.L.R.(4th) 153; 2011 SKCA 152, refd to. [para. 16].

Hafichuk-Walkin et al. v. BCE Inc. et al. (2014), 308 Man.R.(2d) 215; 2014 MBQB 175, refd to. [para. 18].

Drover et al. v. BCE Inc. et al. (2015), 369 B.C.A.C. 231; 634 W.A.C. 231; 2015 BCCA 132, refd to. [para. 22].

Gillis et al. v. BCE Inc. et al. (2015), 358 N.S.R.(2d) 39; 1131 A.P.R. 39; 384 D.L.R.(4th) 111; 2015 NSCA 32, agreed with [para. 24].

Englund et al. v. Pfizer Canada Inc. et al. (2007), 299 Sask.R. 298; 408 W.A.C. 298; 284 D.L.R.(4th) 94; 2007 SKCA 62, refd to. [para. 35].

Counsel:

E.F.A. Merchant, Q.C., C.R. Churko and A. Tibbs, for the respondent;

K. Podrebarac and A. Melamud, for the appellant, Bell Mobility Inc.;

K. Thomson and A.F. Sunter, for the appellant, Rogers Communications Partnership.

This appeal was heard on October 7, 2015, before Berger, Watson and Rowbotham, JJ.A., of the Alberta Court of Appeal. The following memorandum of judgment of the court was filed at Edmonton, Alberta, on January 26, 2016.