Court of Appeal

Sibiga c. Fido Solutions inc. 2016 QCCA 1299 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-09-024648-149 (500-06-000636-130) DATE: AUGUST 10, 2016 2016 QCCA 1299 (CanLII) CORAM: THE HONOURABLE FRANCE THIBAULT, J.A. NICHOLAS KASIRER, J.A. GUY GAGNON, J.A. INGA SIBIGA APPELLANT – petitioner v. FIDO SOLUTIONS INC. ROGERS COMMUNICATIONS PARTNERSHIP BELL MOBILITY INC. TELUS COMMUNICATIONS COMPANY RESPONDENTS – respondents JUDGMENT [1] On appeal from a judgment of the Superior Court, District of Montreal (the Honourable Mr Justice Michel Yergeau), dated July 2, 2014, that dismissed the appellant's motion for authorization to institute class action proceedings. [2] For the reasons of Kasirer, J.A., with which Thibault and Gagnon, JJ.A. agree, THE COURT: [3] ALLOWS the appeal and SETS ASIDE the judgment of the Superior Court; 500-09-024648-149 PAGE: 2 [4] GRANTS the appellant's motion seeking authorization to institute the class action; [5] ASCRIBES to Inga Sibiga the status of representative for the purpose of exercising the class action on behalf of the following class: All consumers residing in Quebec who were charged international mobile data roaming fees by the respondents at a rate higher than $5.00 per megabyte after January 8, 2010. Tous les consommateurs qui résident au Québec et à qui les intimés ont chargé 2016 QCCA 1299 (CanLII) des frais d'itinérance pour les données à un taux excédant 5,00 $ par mégaoctet après le 8 janvier 2010. [6] IDENTIFIES the following as the principal questions of fact and of law to be treated collectively in the action: Does the disproportion between the international mobile data roaming fees charged to the class members and the value of the service provided by the respondents constitute exploitation and objective lesion under section 8 of the Consumer Protection Act (the “CPA”)? Are the respondents' international mobile data roaming fees excessively and unreasonably detrimental to consumers such that the contractual clauses allowing them to charge such fees are abusive under article 1437 C.C.Q.? Must the class member's obligations be reduced and if so, by how much? Are the class members entitled to punitive damages, and if so, what amount must the respondents pay? [7] IDENTIFIES the following as the principal conclusions that relate to the aforementioned questions: AUTHORIZE the class action of the petitioner and class members against the respondents, with costs; GRANT the petitioner's motion to obtain the status of representative of all class members; 500-09-024648-149 PAGE: 3 DECLARE that the international mobile data roaming fees charged by respondents amount to exploitation under section 8 of the CPA; DECLARE that the international mobile data roaming fees charged by the respondents are excessively and unreasonably detrimental to consumers or adhering parties and are therefore not in good faith under article 1437 C.C.Q.; REDUCE the obligations of the petitioner and class members to pay the respondents for the international mobile data roaming services charged to their fair market value; 2016 QCCA 1299 (CanLII) ORDER respondent Fido to compensate the petitioner for the amount overcharged; ORDER the collective recovery of all damages owed to the class members for the amount overcharged; ORDER the collective recovery of all the punitive damages to be paid to all the class members; ORDER the respondents to pay each member of the class their respective claims, plus interest at the legal rate as well as the additional indemnity provided for by law in accordance with article 1619 C.C.Q.; THE WHOLE with costs at all levels, including the cost of all exhibits, experts, expertise reports and notices. [8] DECLARES that, except in the case of exclusion, members of the class will be bound by any and all judgments relating to the class action in the manner provided by law; [9] FIXES the time limit for requesting exclusion from the class at sixty (60) days from the date of publication of the notice to members, from which time the members of the class who have not requested exclusion therefrom will be bound by any and all judgments that are rendered in the class action; [10] ORDERS the publication of the notice to members within sixty (60) days from this judgment in the La Presse, Le Soleil and The [Montreal] Gazette newspapers; [11] REMANDS the file to the Chief Justice of the Superior Court for determination of the judicial district in which the class action will proceed and for appointment of the judge charged with hearing the case; 500-09-024648-149 PAGE: 4 [12] With legal costs on appeal; costs in first instance to follow suit. FRANCE THIBAULT, J.A. NICHOLAS KASIRER, J.A. GUY GAGNON, J.A. 2016 QCCA 1299 (CanLII) Mtre Bruce W. Johnston Mtre Yves Lauzon Mtre Andrew E. Cleland TRUDEL, JOHNSTON & LESPÉRANCE For the Appellant Mtre Pierre Y. Lefebvre Mtre Eleni Yiannakis Mtre Noah Michael Boudreau FASKEN MARTINEAU DUMOULIN SENCRL For the Respondents Fido Solutions Inc. and Rogers Communications Partnership Mtre Yves Martineau Mtre Matthew Angelus STIKEMAN ELLIOTT SENCRL, SRL For the Respondent Telus Communications Company Mtre Christine A. Carron, Ad.E. Mtre Frédéric Wilson NORTON ROSE FULBRIGHT CANADA SENCRL, SRL For the Respondent Bell Mobility Inc. Date of hearing: September 1, 2015 500-09-024648-149 PAGE: 1 REASONS OF KASIRER, J.A. [13] Inga Sibiga appeals the dismissal of her motion for authorization of a class action. She alleged that international roaming fees charged by wireless mobile phone service providers to Quebec consumers, like herself, were abusive, lesionary and so disproportionately high as to amount to exploitation under applicable rules in consumer protection legislation and the Civil Code of Québec.1 [14] In reasons both well-researched and compellingly written, the motion judge 2016 QCCA 1299 (CanLII) acknowledged that the prima facie case standard set forth by the Supreme Court in Infineon2 and Vivendi3 governed the outcome of the motion. At the same time, he gave plain voice, within the right confines of judicial propriety, to his sense of the mischief that can result if that threshold is applied incautiously. His preoccupation that a lax approach to the standard can result in authorization of class actions that do not deserve to go to trial is no doubt a legitimate one. “On ne lance pas une procédure aussi coûteuse pour le système judiciaire qu’un recours collectif”, he wrote in paragraph [98], “sur une base aussi ténue”. The Supreme Court has taken pains to say that however liberal the standard at authorization, a class action cannot rest on allegations that are vague or imprecise or be hostage to a plaintiff who is unqualified to represent members of the class. A lack of rigour at authorization can indeed weigh down the courts with ill- conceived claims, creating the perverse outcome that the rules on class actions serve to defeat the very values of access to justice they were designed to champion. [15] That said, while a judge can refuse a motion for authorization that relies on an overly liberal interpretation of the Infineon standard, it is a mistake in law to refuse authorization by treating that standard as overly liberal in itself. [16] In my respectful view, by denying authorization in the present case based on what he described as an imprecise and speculative claim, the motion judge neglected to apply the prima facie case standard relevant to this consumer class action. He also erred in his evaluation of adequate representation. In the result, I would grant the motion for authorization and propose, as well, that the Court resist arguments that the class be defined more narrowly at this early stage of the proceedings. 1 2014 QCCS 3235. 2 Infineon Technologies et al. v. Options consommateurs, [2013] 3 SCR 600. 3 Vivendi Canada Inc. v. Dell’Aniello, [2014] 1 SCR 3. 500-09-024648-149 PAGE: 2 I Background [17] The appellant is a Quebec consumer who has a wireless telephone contract with Fido Solutions Inc. In September 2012, she used her mobile phone on approximately six occasions to access the Google Map service through the internet while travelling on holiday in the United States. She had chosen not to avail herself of a pre-paid travel plan offered by Fido that would have entitled her to a reduced rate for roaming mobile data services outside of Canada. As a result, she was billed on a pay-per-use basis for 40.82 megabytes (MB) of roaming data used at a rate of $6.14 per MB. According to her monthly account summary, she owed $250.81 for the roaming data used in the United States in addition to the amount of her usual monthly invoice. 2016 QCCA 1299 (CanLII) [18] The appellant says she was disagreeably surprised at the additional amount charged at the time but paid it without complaint. [19] In December 2012, she received a mass email from the law offices of Trudel & Johnston announcing that the Montreal firm had undertaken an investigation of international roaming fees charged to Quebec consumers using their wireless mobile devices. The firm had been examining the viability of a consumer class action based on unfair international roaming fees before they met the appellant. The email invited consumers who had received bills they considered to be excessive to contact the firm. The appellant did so shortly thereafter. [20] With Trudel & Johnston acting on her behalf, the appellant filed a motion for authorization to institute a class action and obtain the status of representative in the Superior Court on January 8, 2013. The named defendants were Fido, Rogers Communications Partnership, Bell Mobility Inc.

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