Saskatchewan Court Prohibits Dressing Up…Previously Struck Causes of Action

This post was written prior to our January 2017 merger, under our previous firm name, MacPherson Leslie & Tyerman LLP.

Chatfield v. Bell Mobility Inc., et. al., is a certified Saskatchewan action with a class including all persons who contracted with virtually all the companies that have ever provided wireless and cellular service in Canada for virtually the entire time such services have been offered in this country. The sole cause of action certified in the case (after six others were rejected at certification) is unjust enrichment. The certified common issue addresses whether it was wrongful for the Defendants to charge in their service contracts what was often referred to in the industry as a System Access Fee (“SAF”).

Post certification the Plaintiff sought to amend the Statement of Claim to make numerous allegations that the Defendants argued merely reintroduced several previously struck causes of action, including deceit and misrepresentation over a period of decades. Similar to the allegations at the certification motion, the Plaintiffs did not include any allegation in their proposed amendments that any class member actually relied on the alleged misrepresentations concerning the nature of the SAFs. However, the Plaintiffs argued this pleading was relevant to the unjust enrichment analysis.

In his decision reported at 2014 SKQB 82, Justice Elson summarized the underlying issue as whether the proposed amendments contained further allegations that did not fundamentally change the nature of the action or whether they did fundamentally change the nature of the action requiring consideration of all of the matters dealt with at the certification application. He concluded the latter.

Elson J. grounded his analysis in the Court of Appeal’s description of the Plaintiff’s claim from their decision upholding certification; that the crux of the Claim is whether the service contracts, properly interpreted, allow the Defendants to retain the SAFs, thereby constituting a juristic reason for any enrichment. Elson J. noted representations could form a limited aspect of a contractual interpretative exercise. However, the alleged misrepresentations were either immaterial to or inconsistent with the real issue Justice Elson articulated – what meaning should be given to the service contracts. The alleged misrepresentations did not belong in pleadings involving the absence of juristic reason in the context of a contract based claim.

Further, the proposed amendments would change the focus of the inquiry from what had previously been judged to be common and grounded solely in the conduct of the Defendants, into to a series of individual inquiries into the state of mind of the class members. On these bases, Elson J refused to allow the “slightly dressed up version” of the previously struck causes of action to proceed.