Class-action will not shrink despite Videotron arbitration clause, court rules

The Superior Court of Quebec denied an application by Quebecor Inc.’s Videotron to exclude from a class-action group any companies that signed an arbitration clause with the telecommunication company, but narrowed the timeframe in which members are eligible at the request of BCE Inc.’s Télébec, in a lawsuit brought forward by a specialty food store in the province. Last Friday, the Superior Court of Quebec released two French-language decisions after it received several requests to modify the description of the group of members targeted by the lawsuits. In April 2018, Cafeier Boustifo filed an application to institute a class-action against Videotron, Cogeco Inc., and both Bell and Télébec, on behalf of "all companies based or having been based in Quebec and having been imposed, or charged, since April 20, 2015, by one or other of the defendants conditions or contract termination fees,” according to a translation of the court documents. Boustifo was a client of Télébec since 2010 until the company opted to end their service with the telecom company in fall 2017 and was charged $1,760 in cancellation fees, according to a translation from the 2019 court documents. The company alleged that the terms and conditions of the renewal were never transmitted or brought to its attention. It also alleged that the other service providers impose similar cancellation fees and should be penalized. This class-action is advancing concurrently with another class-action, that of Société AGIL OBNL against Bell, authorized on Feb. 10, 2021 which includes "all companies domiciled or having been domiciled in Quebec and having been bound between June 26, 2015 and the date of publication of the notices with Bell Canada by a telecommunications services contract in which contract termination clauses or conditions are stipulated and imposed, with the exception of legal entities governed by public law and ‘small businesses’ having signed a contract including an arbitration clause," according to a translation of the court documents. The same judge is handling both files simultaneously because it concerns the termination costs of telecommunications companies with its commercial customers. Therefore, a decision regarding the definition of the class-action group in the AGIL case was also released Friday. In the Boustifo case, in June 2018, Cogeco and Bell filed a request for a declinatory exception – to decline the jurisdiction of the court – arguing the companies had arbitration clauses contained in their contracts (which requires the parties to resolve their disputes through an arbitration process rather than the courts). The requests were granted several months later, in November, and the two companies were exonerated from the proceedings. In Oct. 2018, Videotron modified the content of some of its contracts with the companies to include an arbitration clause. In September of the following year, a Quebec judge amended the class-action application for authorization against Bell's Télébec, but rejected the authorization against Videotron. In Dec. 2020 Télébec unsuccessfully appealed the decision while Boustifo successfully appealed to have the application include Videotron. Télébec tried one more time to appeal, this time to the Supreme Court of Canada, but the request was rejected in June 2021. Last month, Videotron filed a request for amendment in the Boustifo case aimed at excluding from the class-action group any legal persons or companies that had signed a contract including an arbitration clause with Videotron. Justice Sylvain Lussier noted in his Friday decision that Videotron did not present a declinatory exception before the debate on which legal body had authorization, contrary to what Cogeco and Bell did. Videotron also did not make arguments for the authorization to restrict the group to members without an arbitration clause. Finally, in October, Télébec filed an amendment with the provincial court to add a time limit (closing date) on the definition of the class-action group like the AGIL case. However, Société AGIL OBNL, in its own case, asked that the time restriction be removed. “It is clear that the description of the groups in these related files must be similar,” Lussier wrote in the AGIL decision, according to a translation. Lussier ultimately sided with Télébec, noting that setting a deadline in a class-action is required to define the group so that its members can identify themselves according to objective criteria: “The group must be able to be clearly defined. The class definition is critical because it clarifies who is entitled to notice, who is entitled to relief (if relief is granted), and who is bound by the judgment. It is therefore essential that the group can be clearly defined at the start of the dispute. The definition should set out objective criteria for identifying members of the group,” he wrote in the AGIL decision. Lussier noted later in the decision that the existence of a time requirement does not prevent a claim for damages suffered after the proceedings to be instituted or the addition of members meeting the definition through a new notice of a class-action. As a consequence of the AGIL decision, the Boustifo class-action group is now defined as “all undertakings domiciled or having been domiciled in Québec and having been imposed or invoiced by Télébec or Videotron L.P.S.c conditions or fees for terminating a contract between 20 April 2015 and the date of publication of the notices.” – Reporting by Jenna Cocullo at jcocullo@thewirereport.ca and editing by Paul Park at ppark@thewirereport.ca

Class-action will not shrink despite Videotron arbitration clause, court rules

News | January 31, 2022

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Class-action will not shrink despite Videotron arbitration clause, court rules

News | January 31, 2022

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