Executive Summary: Key Legal and Evidentiary Issues

• Scope and application of article 11.2 of the Loi sur la protection du consommateur (L.p.c.) to unilateral price increases by Videotron and Cogeco for residential telecom services
• Compliance of Videotron’s and Cogeco’s written rate-increase notices with statutory requirements to reproduce both the modified clause and the prior version, and to clearly advise consumers of their right to cancel without penalty
• Consistency between the standard form contracts (Videotron clause 15.3; Cogeco clause 15) and the actual practice followed in sending rate-increase notices
• Threshold for authorizing a consumer class action under article 575 C.p.c., including appearance of right, common questions, and adequacy of the proposed representative
• Availability, at least in principle, of restitution of unlawful price increases and punitive damages under article 272 L.p.c. for deliberate or knowing non-compliance with consumer protection obligations
• Appropriateness of injunctive relief in a class action context to prevent continuation of allegedly illegal notice practices and to compel issuance of a compliant notice in respect of Videotron’s September 12, 2024 rate increase

Facts of the case

Joyce Romano is a long-standing residential customer of Videotron, subscribed to monthly services including home phone, Helix TV, Club Illico and internet. [paras. 6–7] On 29 November 2023, Videotron emailed her a “Rate increase” notice advising of a $3.00 per month increase (plus taxes) to her Helix plan, effective 1 February 2024, and that higher rate was in fact billed from that date. [paras. 7–8] A subsequent “Rate increase” email dated 12 September 2024 informed her of three further increases effective 4 December 2024: $2.00 per month more for her residential home phone line, $2.00 per month more for her Helix TV package, and $2.00 per month more for her Helix internet plan, all before taxes; those increases also came into force on the announced date. [para. 9]

The proposed class is comprised of consumers whose monthly charges for any Videotron or Cogeco services were unilaterally increased in contravention of article 11.2 L.p.c. from 20 September 2021 onwards. [para. 2] Romano alleges that Videotron and Cogeco have, throughout the class period, sent rate-increase notices that do not comply with article 11.2 L.p.c., rendering the increases inopposable and without effect for class members under articles 11.2 (third paragraph), 261, 262 and 272 L.p.c. [para. 3]

Romano also attacks the form and content of the rate-increase communications and the underlying contractual clauses. She pleads that the notices and clauses are contrary to the L.p.c. because they fail to mention the modified clause and its previous version as required by statute. [para. 4] The judge notes that Romano does not challenge the legality of the wording of the modification clauses themselves so much as the way in which the defendants put those clauses into practice through their notices. [paras. 31–36, 42]

Legal framework and policy terms at issue

The central statutory provision is article 11.2 L.p.c. As quoted by the Court, it prohibits any clause allowing a merchant to unilaterally modify a contract unless the clause (a) specifies which elements may be changed, (b) obliges the merchant to send at least 30 days before the change a written notice “contenant exclusivement la nouvelle clause ou la clause modifiée ainsi que la version antérieure” together with the effective date and the consumer’s rights, and (c) informs the consumer of the right to refuse the change and resolve or, in successive-performance contracts, cancel the contract without fee, penalty or indemnity if the modification increases the consumer’s obligation or reduces that of the merchant. The article ends with the strong rule that “[l]a modification d’un contrat faite en contravention des dispositions du présent article est inopposable au consommateur.” [para. 5]

Videotron’s standard contract clause 15.3, titled “Notre droit de modifier le contenu de votre contrat,” states that Videotron may modify the contract, including price and nature of the service, but must inform the customer at least 30 (or 60) days before the change by a written notice dealing only with that subject and clearly setting out (1) the information added or the modified clause with its original version, (2) the effective date, and (3) any other required information. It also states that if the modification increases the customer’s commitments or reduces Videotron’s obligations, the customer may refuse the change and terminate the contract without paying the equipment indemnity, within 30 days after the modification takes effect. [para. 31] The Court observes that this contractual clause appears, on its face, to comply with article 11.2 L.p.c. [para. 32]

However, the actual Videotron notice reproduced in the file is a more generic “Dear Customer” letter that simply announces that, in order to maintain quality, certain rates will be adjusted as of a given date and lists the services and the monthly increases (e.g. “Home Phone Line +$2/month; Helix TV package +$2/month; Helix Internet plan +$2/month”), while inviting customers to visit a website or call a phone number if they wish to change or cancel their subscription free of charge. [para. 33] The judge notes two key omissions: the notice does not include the previous version of the modified clause, and the described right of cancellation “possible au téléphone” does not correspond to the statutory mechanism of cancelling by sending notice within 30 days after the modification takes effect, as prescribed by article 11.2. [para. 34]

Cogeco’s standard form contract for Quebec, at clause 15, likewise states that Cogeco may modify the agreement, including price and nature of service, but must give at least 30 days’ prior written notice (60 days for high-speed internet) which deals only with the subject and “indiquera clairement et lisiblement (i) la nouvelle clause ou la clause modifiée ainsi que la version antérieure, (ii) la date d’entrée en vigueur de la modification et (iii) vos droits de refus et de résiliation.” [para. 35] The Court again finds that this clause appears to comply with article 11.2 L.p.c. [para. 36]

The evidence shows, however, that Cogeco communicated rate adjustments by various means: a short email to customers subscribed to the “Mon Compte” portal indicating only that their monthly rate will be adjusted as of 1 March 2024 and inviting them to log in to “Mon Compte” and consult notifications for more information; [paras. 37–39] and other letters or emails written in French or English that briefly explain Cogeco’s investments and then simply state that, as of 1 March 2024, the monthly rate will increase by a specified amount (e.g. “Forfait Internet + 5,99 $/mois”), adding that customers may call to add, modify or cancel services without penalty. [paras. 40–41]

The Court concludes that these Cogeco notices likewise do not contain the prior version of the clause nor do they set out the rights of refusal and cancellation as required by article 11.2 L.p.c. [paras. 39–41] This leads the judge to highlight the disconnect: while the form contracts of both Videotron and Cogeco appear compliant, the actual implementation—through their rate-increase notices—seems, at least prima facie, to violate both the statutes and their own contractual commitments. [paras. 42, 55]

Authorization criteria and appearance of right

The Court then turns to the criteria for authorizing a class action under article 575 C.p.c. These four criteria require: (1) common questions of law or fact, (2) facts that appear to justify the conclusions sought, (3) a group composition that makes individual mandates or joinder impractical, and (4) an adequate proposed representative. [para. 18]

The defendants concede that criteria (1), (3) and (4) are met, and the Court agrees. [para. 19] The debate centres on the second criterion—whether the alleged facts appear to justify the conclusions, i.e., whether there is an “apparence sérieuse de droit” (serious appearance of right). [paras. 19–20, 24–25] Drawing on Supreme Court and Court of Appeal case law (Infineon, Vivendi, Oratoire Saint-Joseph, Desjardins c. Asselin), the judge reiterates that the authorization stage is meant to filter out only frivolous claims, with a low threshold: the applicant needs to present a cause that has a chance of success, not to establish a reasonable probability of success. [paras. 21–25] Alleged facts in the authorization request are taken as true unless incontrovertibly disproved, and the judge must avoid deciding the merits. [paras. 26, 30]

On the core statutory issue, the Court finds that article 11.2 L.p.c. is clear, especially in its statement that a modification made in contravention of its requirements is inopposable to the consumer. [paras. 48–49] The judge rejects attempts by Videotron and Cogeco to dilute this by relying heavily on parliamentary debates, emphasizing that such debates have only a limited interpretative role and that there is no ambiguity here that would justify revisiting the plain wording. [paras. 46–53]

Applying this framework to the evidence, the Court notes that the defendants’ notices fail, on their face, to include the previous version of the modified clause and to clearly reproduce the consumer’s rights of refusal and cancellation in the manner mandated by article 11.2 and by their own contracts. [paras. 34, 39–41, 42, 55] At this stage, the judge concludes that the claim for reimbursement of increases imposed without respecting article 11.2 L.p.c. is sufficiently grounded to meet the appearance-of-right test. [paras. 58–59]

Punitive damages and injunctive relief

Romano also seeks punitive damages under article 272 L.p.c., which allows a consumer, where the merchant or manufacturer fails to comply with obligations imposed by the L.p.c. or regulations, to pursue a wide range of remedies “sans préjudice de sa demande en dommages-intérêts dans tous les cas,” and further specifies that the consumer may also claim punitive damages. [para. 61]

In her pleadings, Romano alleges that Videotron’s clause 15.3 expressly restates the requirements of article 11.2 L.p.c., yet Videotron fails to respect that provision and its own contractual undertakings whenever it increases prices during the class period; she also invokes prior admissions by Videotron in other consumer class action proceedings showing that Videotron is fully aware of its obligations under article 11.2. [para. 63] As for Cogeco, she alleges that its increase notices (Exhibits P-11 and P-12) do not contain anywhere the required reproduction of the new clause or amended clause and the previous version, contrary to clause 15 of its standard form contract, and that Cogeco’s conduct is intentional, warranting reimbursement, punitive damages, injunctive relief and a declaratory judgment. [para. 63]

Relying on appellate guidance (including Lévy c. Nissan and Richard c. Time), the judge emphasizes that it would be premature at authorization to rule out punitive damages, since their assessment requires a global look at the merchant’s conduct before and after the violations; doubts at this stage must be resolved in favour of the plaintiff. [paras. 64–65] Given that article 272 expressly allows punitive damages and that the legislative provisions have long been in force, coupled with prior judicial pronouncements insisting they be respected, the Court considers that the defendants’ deliberate conduct could ground a punitive award at the merits stage, but leaves that determination to the trial judge. [para. 66]

Romano also seeks injunctive relief to prohibit Videotron and Cogeco from perpetuating the impugned practices and to require Videotron to modify its 12 September 2024 notice so that it complies with article 11.2 L.p.c. [paras. 68, 76, 86] The Court reviews case law confirming that injunctive relief can, in principle, be sought within a class action, particularly where it serves to halt unfair practices. [paras. 69–70] It concludes that the appropriateness and exact scope of such an injunction are questions for the trial judge, but that the injunctive conclusions themselves may be authorized. [para. 71]

Definition of the group, common questions and conclusions

Because the sole legal basis invoked is the L.p.c., the Court restricts the group to Quebec consumers. [para. 72] Following prior authority, it also closes the class as of the date of publication of the article 579 C.p.c. notices, resulting in the following class definition:

“Tous les consommateurs québécois dont la tarification mensuelle pour un des services de Vidéotron ou Cogeco a été augmentée unilatéralement par Vidéotron ou Cogeco sans respecter les dispositions de l’article 11.2 de la Loi sur la Protection du Consommateur depuis le 20 septembre 2021 et jusqu’à la date de publication des avis de l’article 579 C.p.c.” [paras. 74, 82]

The Court then identifies several questions to be dealt with collectively, including: whether Videotron’s and Cogeco’s rate-increase notices contravene article 11.2 L.p.c. and their own contracts; whether increases following non-compliant notices are opposable to group members; whether members are entitled to full or partial reimbursement of sums paid in respect of such increases; whether they are entitled to punitive damages of $200 each; and whether the Court should issue an injunction to prohibit continued non-compliant practices. [paras. 75, 84] Individual questions will focus on the amount each member is entitled to as reimbursement and the amount of punitive damages, if any, for each member. [para. 85]

The conclusions Romano is authorized to seek at trial include: a declaration that the rate increases are illegal and inapplicable to group members; an order that Videotron and Cogeco cease sending non-compliant notices and that Videotron resend a compliant notice for 12 September 2024 failing which the increases mentioned will be declared illegal; collective recovery of all unlawfully imposed amounts and punitive damages of $200 per member; interest and additional indemnity from service of the authorization application; deposit of the collected sums in court; and collective or, failing that, individual liquidation of group members’ claims, with costs. [paras. 76, 86]

Procedural outcome and successful party

On the procedural front, the Court orders that the action be brought in the district of Montréal, in accordance with article 43 C.p.c. on consumer-contract disputes and given Romano’s residence. [paras. 78–81, 87] It also orders publication of the notice to class members under article 579 C.p.c., sets the opt-out period at 60 days from publication, and awards the costs of the authorization proceedings and notice publication against the defendants, although no exact monetary figure is fixed in the judgment. [paras. 88–90]

As to outcome, this judgment is strictly at the authorization stage: the Court “ACCUEILLE la demande en autorisation d’exercer une action collective” and designates Joyce Romano as the representative of the authorized group. [paras. 82–83] In other words, Romano—the applicant—is the successful party at this stage, obtaining permission to proceed with a class action against Videotron Ltée and Cogeco Connexion Inc. The Court does not, however, adjudicate the merits of the alleged statutory breaches, does not fix any sum for reimbursement, punitive damages, or collective recovery, and does not quantify the costs. The total monetary award, costs and damages actually granted or ordered in this authorization judgment therefore cannot be determined in dollar terms from the decision itself, beyond the indication that the defendants must bear the judicial costs, which remain unquantified in the text.