Case information

Contracts — Contract for services — Resiliation costs — Method for calculating obligation exigible from members of class action — Amounts collected versus billed amounts — Consumer protection — Abusive clause — Civil procedure — Class actions — Class action brought against Telus by persons who had been charged fees upon resiliation of their fixed term contracts for wireless and wireline telephone services — Whether resiliation costs claimed under contract that slightly exceed actual damage caused by early resiliation of contract can be characterized as abusive — If so, how this conclusion can be reconciled with existence and validity of liquidated damages clauses — Method to be used to compare costs claimed with average injury sustained in context of class action, and appropriate remedy — Whether, given judicial admissions, trial judge erred in law in characterizing entirety of average discount for devices and of reductions for plans as actual injury sustained by Telus in context of contract of successive performance — Civil Code of Québec, arts. 1437, 1622, 1623, 2125, 2129 and 2852 — Consumer Protection Act, CQLR, c. P 40.1, s. 8.

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This application concerns a class action brought against Telus for reimbursement of amounts claimed under resiliation clauses in fixed-term contracts for telecommunications services. The representative plaintiffs in the action alleged that the clauses Telus had relied on to require payment of the claimed amounts were abusive within the meaning of article 1437 of the Civil Code of Québec (C.C.Q.) and amounted to exploitation of the consumer within the meaning of section 8 of the Consumer Protection Act, CQLR, c. P 40.1 (the “CPA”). The Superior Court dismissed the class action. In its view, the costs were not abusive within the meaning of article 1437 C.C.Q. and section 8 of the CPA, because they did not exceed the injury Telus had actually sustained (calculated on the basis of the collected amounts). The Court of Appeal allowed the class action in part. It held that the Superior Court had made a palpable and overriding error in establishing the obligation exigible from the members on the basis of the amounts collected by Telus (as opposed to the amounts claimed).