Executive Summary: Key Legal and Evidentiary Issues

• The court ruled that defendants’ applications to dismiss for delay must be heard before any other pending motions, including the plaintiff's notice application.

• There had been a 12-year delay with no meaningful steps taken by the plaintiff after the class action was certified.

• The only remaining certified cause of action is unjust enrichment; attempts to reintroduce deceit and misrepresentation were rejected as improper.

• Multiple applications by the plaintiff to amend or reply with misrepresentation-based claims were dismissed as abuses of process.

• Evidence from "without prejudice" settlement communications was deemed inadmissible and struck due to settlement privilege.

• The court affirmed its jurisdiction to dismiss certified class actions under Rule 4-44 of the King’s Bench Rules if delay is inordinate and inexcusable.

Background of the dispute

The claim originated in 2004 when approximately 70 plaintiffs launched a proposed class action challenging “system access fees” charged by major Canadian telecommunications providers. These fees emerged after the federal government eliminated individual mobile licensing requirements in 1987. The plaintiffs alleged the companies continued to collect similar charges, misleadingly framed as necessary government or regulatory fees, thereby unjustly enriching themselves.

Certification and legal framework

In 2007, the class action was certified with Colin Chatfield appointed as the representative plaintiff. The only cause of action allowed to proceed was unjust enrichment. Other claims, including breach of contract, deceit, and misrepresentation, were rejected at certification. The Court of Appeal upheld certification in 2011, and the Supreme Court of Canada denied leave to appeal in 2012.

Long-standing procedural delays

Following certification, the plaintiff failed to take meaningful steps for over a decade. From 2012 to 2024, the plaintiff made several attempts to reshape the litigation by introducing allegations of deceit and misrepresentation through amendment applications and replies. Each attempt was dismissed by the court. The judge repeatedly characterized these efforts as improper and, in some instances, as abusive of the court’s process.

In 2024, the plaintiff filed a notice application under The Class Actions Act to address notification to class members. The defendants promptly filed motions to dismiss the action for delay under Rule 4-44, citing inordinate and inexcusable delay.

Arguments on sequencing

The key dispute in this decision was whether the dismissal motions or the notice application should be heard first. The defendants argued that judicial efficiency favored hearing their potentially dispositive motions first. The plaintiff contended that the court could not consider dismissal without addressing class member notice obligations under section 38 of the Act.

Court’s analysis on procedural law

The court rejected the plaintiff’s argument that certification immunized the case from procedural dismissal. It confirmed that Rule 4-44 of the King’s Bench Rules remains applicable post-certification and found support in recent Ontario decisions, including Barbiero v Pollack. The judge emphasized that class actions, once certified, still require active prosecution by the representative plaintiff, who holds fiduciary responsibility for the class.

Assessment of plaintiff’s conduct

The court described the plaintiff’s conduct over the past 12 years as inattentive and marked by repeated, improper attempts to reintroduce previously rejected claims. It noted that nothing substantive occurred from 2017 until 2024 and expressed skepticism about the plaintiff’s willingness to prosecute the action in the form approved by the court.

Admissibility of affidavit evidence

An affidavit filed by the plaintiff’s legal assistant included “without prejudice” communications between counsel. These were deemed inadmissible under settlement privilege principles and struck from the record. The court reaffirmed the well-established rule that such communications are not to be disclosed unless privilege is waived or an exception applies.

Final orders and direction

The court ordered that the dismissal motions be heard first. Costs of the sequencing application were awarded to the defendants. It also granted the Bell defendants’ motion to strike parts of the plaintiff’s affidavit and ordered redacted re-filing. Finally, due to the judge’s pending retirement, the case was referred for reassignment to another case management judge, with the current judge recusing himself from hearing the dismissal applications.

Conclusion

Although not a ruling on the merits, the decision reflects the court’s disapproval of the plaintiff’s prolonged inaction and procedural conduct. By granting priority to the dismissal motions, the court signaled a willingness to consider terminating the case if the defendants can establish that the delay was both inordinate and inexcusable.