Executive Summary: Key Legal and Evidentiary Issues

• Plaintiffs challenged mobile providers' billing practice of rounding call durations up to the next minute.

• Both class actions involved common factual and legal issues across TELUS and Bell defendants.

• Motions focused on whether trials or summary judgment motions were the appropriate procedural paths.

• Defendants argued that separate proceedings could result in inconsistent judgments.

• Court considered Rule 6.01 factors for consolidation and the efficiency of consecutive hearings.

• Judge declined to preside over the summary judgment due to his role as case management judge.

Background and procedural history

Two class action lawsuits were filed by plaintiffs against major Canadian telecommunications providers: Avraham Wellman against TELUS, and Jason Corless and Bernie Cox against Bell Mobility. The central allegation in both actions was the same—TELUS and Bell had a common billing practice of rounding up call times to the next full minute, thereby potentially overcharging customers. Both claims advanced under the Class Proceedings Act, 1992, and were certified with nearly identical class definitions and common issues.

Although the TELUS and Bell companies are separate entities with independent billing departments, the lawsuits shared significant factual and legal overlap. The plaintiffs were represented by the same legal counsel, the certification motions were heard together, and expert evidence was expected to be substantially the same. Only the damages component, based on differing customer databases, would be unique to each defendant.

The consolidation motion

The defendants brought a motion to have the two class actions either consolidated or heard together. Their position was that separate trials could lead to inconsistent decisions on identical legal and factual issues, particularly since the common issues overlapped almost entirely. Bell’s counsel further argued that if one case was tried and decided before the other, it would create an uneven playing field in the second proceeding, prejudicing the fairness of the trial.

Plaintiffs opposed the motion, citing potential delays and evidentiary complications if the cases were joined. However, the court applied Rule 6.01 of the Rules of Civil Procedure, which allows consolidation or joint hearings where the cases share interconnected issues, evidence, or parties. After analyzing the gateway criteria under Rule 6.01(1) and broader concerns of judicial efficiency under section 138 of the Courts of Justice Act, the court found that trying the two actions separately would amount to unnecessary duplication and inefficiency.

Trial vs. summary judgment debate

Although initially the TELUS matter was scheduled for trial in January 2025, administrative issues caused it to fall off the trial list. Plaintiffs then opted to pursue summary judgment motions as an alternative. The defendants opposed this shift, arguing that the complexity of the issues—particularly those involving aggregate damages—made summary judgment inappropriate. They pointed to prior cases suggesting that complex summary judgment motions can be less efficient than a full trial.

However, the judge declined to determine whether summary judgment was procedurally suitable, deferring that decision to the judge who would hear the motions. He emphasized that the same analysis around consolidation applied whether the hearing was a trial or a summary judgment motion. Accordingly, the two motions were ordered to be heard consecutively over a three-week block of court time to maximize efficiency and minimize inconsistent findings.

Judicial impartiality and role of case management judge

The motion also raised an important procedural issue about judicial impartiality. The judge, who had served as case management judge for both class actions over several years and had presided over multiple interlocutory motions, had initially planned to hear the summary judgment motions himself. Bell’s counsel respectfully objected, citing Rules 37.15(1) and 77.06(2), which prohibit a case management judge from presiding over the trial of a case unless all parties consent.

Though these Rules did not explicitly mention summary judgment motions, the judge agreed that the underlying principle—ensuring a fresh and impartial adjudicator for the final decision on the merits—should extend to summary judgment. As one defendant objected, the judge ruled he would not hear the motions and that a different judge should be assigned.

Final order

The court ordered that both class actions proceed by way of summary judgment motions, to be scheduled consecutively during a three-week hearing block. Evidence from one motion could be used in the other, subject to the discretion of the presiding motion judge. The motion judge would also determine the extent to which each defendant’s counsel could participate in the other’s hearing. The judge concluded his role as case management judge but confirmed he would not preside over the final merits hearing.