Bell and Telus may well be in an area of federal jurisdiction, telecommunications, however, are subject to Quebec consumer protection law. Reviving a judicial trend that seemed well established for a few years, the Superior Court quashed the 06 last June a surprise judgment of the Court of Quebec rendered in 2019.
La Presse
Eight years after the facts, Bell and Telus will therefore finally have to defend themselves against 366 counts (of which 364 for Telus) for breaches of contracts and cancellation penalties for cell phone services.
"When the decision was made last year by the trial judge, we were a little discouraged," said Yannick Labelle, consumer protection analyst at Union des consommateurs. The bottom line is that we are setting the record straight today. "
An argument "that doesn't work"
This is far from the first time that companies in an area of federal jurisdiction have failed to invalidate a Quebec law, in this case the Consumer Protection Act (CEA). The most famous case was decided by the Supreme Court in 2014. After 06 years of proceedings, a BMO client, Réal Marcotte, had succeeded in a class action against the hidden costs of currency conversion. Bell also made this argument against a class action led by Louis Aka-Trudel and authorized in 2011, for late fees deemed exaggerated. After three defeats in court, Bell's appeal was denied by the Supreme Court in February 2019.
"The telecommunications companies do not want provincial laws to apply to them", summarizes M e Mathieu Charest-Beaudry, of the firm Trudel Johnston & Lespérance, who led the Aka-Trudel file.
"It is argued that the federal legislator has provided for a comprehensive plan and that any intrusion by the provincial will result in a serious interference with activities under federal jurisdiction. The argument does not work: it did not work in Marcotte, in Aka-Trudel and it did not work this time for Bell and Telus. "
First acquitted
In the most recent case, Telus is the main target, with 364 counts from 12 contracts analyzed by the Consumer Protection Office (OPC) between November 2012 and April 2013. The OPC was claiming fines from Telus of $ 4.1 million for having prohibited provisions in its contracts.
Bell, for his part, faces two counts dating from 2015 relating to the penalties imposed on consumers who decide to cancel their contract.
In April 2019, Judge Yvan Poulin, of the Court of Quebec , had acquitted the two companies, without ruling on the merits of the charges. Bell and Telus argued that they were regulated by a federal agency, the Canadian Radio-television and Telecommunications Commission (CRTC), and that the terms of their contracts could not be subject to provincial law such as the Protection Act of the consumer.
Poulin J. accepted this argument, considering that telecommunications were an "area of jurisdiction [...] fully and entirely occupied by the federal government, which regulates all aspects ranging from the issue of licenses and permits of operation at the location of the telecommunications towers, including the provision, pricing and conditions of marketing of services ".
"Colorful" conclusions
The Attorney General of Quebec and the Director of Criminal and Penal Prosecutions have appealed this judgment. The verdict, which merges the cases of Telus and Bell "because of the similarity of the constitutional arguments raised" by the two companies, fell on 11 last June. In a very technical judgment of 68 pages , the court presided over by judge Chantal Corriveau considers that "the judge [Yvan Poulin] committed an error of law requiring the intervention of the Superior Court".
The judge of the Court of Quebec is essentially criticized for having first asked himself the question of the division of powers between the federal and provincial governments, rather than analyzing the nature of the alleged offenses, "which undoubtedly color his conclusions, "one can read.
PHOTO CHRIS WATTIE, ARCHIVES REUTERS
The verdict, which merges the cases of Telus and Bell "due to the similarity of the constitutional arguments raised" by the two cases, fell on 06 last June.
For the Superior Court, companies like Bell and Telus remain subject to the Quebec Civil Code, from which the Consumer Protection Act emanates. "It is not because a federal law is permissive, that a provincial law is more restrictive that there is a conflict, believes Anaïs Beaulieu-Laporte, analyst in telecommunications, broadcasting, internet and privacy at Consumers Union. The Superior Court rejected the simplistic interpretation which would mean that as soon as the federal government passed a law, the provincial law would lose its application. "
A provincial law can even have financial repercussions on federal businesses, writes the Superior Court. "There may be overlaps, analysis M e Charest-Beaudry. Then you have to see if it seriously hinders its activities. So far, it hasn't held up. "
For the Superior Court, "both the provisions of the CEA and those of the federal law can be applied simultaneously without the respect of one leading to the violation of the other".
The Superior Court accordingly quashed the decision of Poulin J. and referred the cases of Bell and Telus to proceed on the merits before the Court of Quebec.
For Telus, "telecommunications-related jurisdiction is exclusively federal, as Canadian courts have confirmed in recent decades, including the Supreme Court of Canada, said spokesperson Jacinthe Beaulieu. Consumers can benefit from unified rules across the country put in place by the CRTC, which makes for a simpler, more transparent and accessible experience. "
As for the legal steps, "we are analyzing the alternatives available to us as to the next steps", added M me Beaulieu.
Bell, meanwhile, said she would not comment on "a case that is before the courts," said spokeswoman Vanessa Damha.
On the side of the Consumer Protection Office, we are also terse. "The Office is currently analyzing this judgment and the possible follow-up to the files concerned," said spokesman Charles Tanguay.
See the decision of the Superior Court
Contracts: what the OPC criticizes Bell and Telus
Modification
A merchant is prohibited from entering in a contract that he can unilaterally modify the contract, without further details. He must write which elements can be modified, transmit 30 days before this modification a notice "written, written clearly and legibly". The consumer then 25 days to refuse this modification and terminate the contract free of charge.
Cancellation
A merchant cannot write in a document that he gives himself the right to unilaterally cancel the contract without serious reason, and must give a written notice from 60 days if the consumer has respected his obligations. Nor can it impose penalties on a fixed amount other than accrued interest.
Details
The contract must be drawn up in writing and indicate essential information. It must in particular specify the monthly rate for each service, the related fees, the expiration date, the circumstances allowing the consumer to terminate or modify, how to easily obtain information relating to the usage rate.