Date: 20120723
Docket: T-132-11
Citation:
2012 FC 925
Ottawa, Ontario,
July 23, 2012
PRESENT: The
Honourable Mr. Justice Scott
BETWEEN:
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PIERRE TREMBLAY
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Plaintiff
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and
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SHAW CABLESYSTEMS G.P.
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Defendant
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REASONS FOR JUDGMENT
AND JUDGMENT
[1]
This
is a joint motion presented by Plaintiff Pierre Tremblay, together with Defendant
Shaw Cablesystems G.P. (Shaw), seeking this Court’s certification of the action
as a class proceeding and approval of a class proceeding settlement (the
Settlement Agreement) dated April 5, 2012, in accordance with section 334.29(1)
of the Federal Court Rules, SOR 98/106.
[2]
The
Plaintiff Pierre Tremblay brought a class proceeding on January 31, 2012.
Further to discussions with the Defendant, a Settlement Agreement was reached
on April 5, 2012.
[3]
Preliminary
Notice of the Settlement Agreement and of this hearing was given to Class
Members, in the manner and form directed by this Court in its Preliminary
Settlement Approval Order issued on May 10, 2012.
[4]
The
facts underlying this litigation occurred in December 2010. The Plaintiff, a
businessman living in West Vancouver, British Columbia, subscribed to the cable
services provided by the Defendant, Shaw Cablesystems GP. When Plaintiff failed
to pay his monthly invoice before the due date, he was charged interest on the
outstanding amount, calculated at 2% per month, compounded monthly. The
Plaintiff paid the amount owed but the invoice failed to state the annualized
interest rate further to the compounding of the monthly 2% interest charge. The
Plaintiff claims that this practice, by Defendant, contravenes the Interest
Act, RSC 1985, c I-15.
[5]
In
granting certification as a class proceeding, this Court considers the
following elements in light of the tests established by the case law and the
specific circumstances in this instance:
a. the
pleadings disclose a reasonable cause of action;
b. there
exists an identifiable class of two or more persons;
c. the
claims of the class members raise common questions of fact or of law;
d. a
class proceeding provides the most opportune procedure for the efficient
resolution of the common questions;
e. the
Representative Plaintiff can fairly represent the interests of at least one of
the classes, brings forth a plan that satisfies the Court that an acceptable
method of advancing the proceeding is set out and properly notifies the Class Members
of progress. The Court must also be satisfied that the Representative Plaintiff
is exempt from any conflict of interest with other class members and can
provide adequate information with respect to fees and disbursements.
[6]
In
this instance, the Court, having heard the submissions of parties and carefully
noted the affidavits of Pierre Tremblay, sworn July 2, 2012, Kenneth J. Baxter,
sworn July 4, 2012, and Rhonda Bashnick, sworn June 21, 2012, is satisfied that
the criteria are met for certification in that:
a. after
considering the applicable threshold, which is low, a cause of action does
exist; the Plaintiff having advanced two causes of action ,one of unjust
enrichment and the other alleging a breach of the Interest Act;
b. there
exists, in this instance, an identifiable class of two or more persons, namely:
all individuals who, during some or all of the Class Period, were Account
Holders and paid interest charges where the rate of interest was only expressed
on a monthly basis on their invoices received from Shaw, and not on an
annualized basis; two subclasses have also been identified that is the Analog
Subclass and the Old subscriber Subclass;
c. the
following common questions of fact and law have been identified by the
Plaintiff:
1. Did
Shaw charge interest to subscribers calculated on the basis of 2% per month
compounded monthly?
2. Did
Shaw charge subscribers interest on a basis contrary to the provisions of the
Interest Act?
3. Was
Shaw unjustly enriched by collecting interest from subscribers at rates that
were contrary to the provisions of the Interest Act?
d. The
class Representative, Mr Pierre Tremblay, satisfies the requirements of the Federal
Court Rules, more precisely Rule 334.16(3). Since the members of the
subclass do not have separate interests on the common questions, there are no
conflicting interests present;
e. It
is clear, in the present case, that certification of the proceeding will permit
an improved access to justice since the value of 90% of the claims is so small
that they may not have been pursued individually, the cost involved being a
significant deterrent, consequently, judicial economy warrants certification; and
f. Finally
the five criteria set out in Federal Court Rule 334.18, that cannot be
relied upon to refuse to certify a proceeding, are non existent in the present
case.
[7]
In
regards to the approval of the Settlement, the Court, having taken into account
the parties’ oral and written submissions and having questioned counsels for
the Plaintiff and Defendant during the hearing held on July 18, 2012, is
satisfied that the Settlement Agreement is fair and reasonable in light of the
applicable jurisprudence and the overall circumstances of the matter. It is
obvious that the Settlement Agreement was negotiated at arm’s length.
[8]
The
Court considered the factors set out in Dabbs v Sun Life Assurance Co. of Canada, [1998] OJ No 1598, as supplemented by the two elements added by the case of Parsons
v Canadian Red Cross Society, [1999] OJ No 3572. It is obvious that the
negotiation between the parties occurred at arm’s length. There were no
objections to the Settlement Agreement. More than 70 potential Class members
contacted counsel for the Plaintiff upon receipt of notification of this motion
for class certification and approval of settlement. More importantly, the Court
is satisfied that the terms of the Settlement Agreement are fair and reasonable
when taking into consideration the nature of the claim, the actual interests
charged by the Defendant to individual subscribers, the number of potential
individual claimants, the likelihood of success and the ease of access and
value of the compensation under the Settlement Agreement. Since, the Settlement
Agreement also provides for far reaching notification as ordered by this Court,
and in light of the absence of objections from Class Members, the Court finds
no valid reason not to approve the Settlement Agreement.
[9]
Finally,
having reviewed the detailed account of time expended by the primary lawyers in
this matter and their role in pursuing the negotiation together with the costs
involved, the Court approves the payment of $311 256.01 by Defendant Shaw to
Class counsel as per the Settlement Agreement.
JUDGMENT
THIS
COURT’S JUDGMENT is that
1. Mr. Pierre
Tremblay is appointed as Representative Plaintiff for the Class;
2. The
action is certified as a class proceeding;
3. The
Settlement Agreement is approved;
4. Fees of
$311 256.01 are approved to be paid by Defendant to Class Counsel; and
5. The
appended Settlement Approval Order is an integral part of this judgment.
"André F.J.
Scott"
SETTLEMENT APPROVAL
ORDER
WHEREAS the Plaintiff and
Defendant have reached a Settlement Agreement which is attached as Schedule A
to this Order;
AND WHEREAS a
certification and Settlement Approval hearing was held on July 18, 2012;
AND WHEREAS the
parties to the action did consent to the certification of this action as a class
proceeding under the Federal Courts Rules;
THIS COURT ORDERS
THAT:
1.
The
Settlement Agreement is incorporated to this Order in its entirety and forms
part of this order, and the definitions in the Settlement Agreement shall be
applied in interpreting this Order;
2.
In
the event of a conflict between this Order and the Settlement Agreement, this
Order shall prevail;
3.
The
Class is certified as:
All individuals who, during some or all of the Class
Period, were Account Holders and paid interest charges where the rate of
interest was only expressed on a monthly basis on their invoices from Shaw and
not on an annualized basis.
4.
The
following subclasses are certified:
a.
Class
Members who subscribe to Shaw’s Analog Cable and have not been upgraded to
Digital Cable (to be referred to as the “Analog Cable Subclass”); and
b.
Class
Members who are not as of the Settlement Approval Date Shaw customers (to be
referred to as the “Old Subscriber Subclass”).
5.
The
nature of the claims asserted on behalf of the Class are:
a.
Breach
of the Interest Act, RSC 1985, c I-15); and
b.
Unjust
enrichment.
6.
The
within action is certified on the basis of the following common issues:
a.
Did
Shaw charge interest to subscribers calculated on the basis of 2% per month
compounded monthly?
b.
Did
Shaw charge subscribers interest on a basis contrary to the provisions of the Interest
Act?
c.
Was
Shaw unjustly enriched by collecting interest from subscribers at rates that
were contrary to the provisions of the Interest Act?
7.
Settlement
Notice shall be delivered in the manner set out in Part D, Section 8 of the
Settlement Agreement, and in the form attached as Schedule “D” to the
Settlement Agreement.
8.
The
Defendant will bear the entire costs of the Settlement Notice.
9.
Class
Members are followed to opt out of this class proceeding in the manner set out
in Part F of the Settlement Agreement, using the form attached as Schedule “E”
to the Settlement Agreement.
10.
The
Settlement Agreement is approved as fair, reasonable, and in the best interest
of the Class.
11.
Each
Class Member who does not opt out shall be deemed to have released and forever
discharged the Defendant.
12.
This
Court retains supervisory jurisdiction to determine any disputes arising as to the
interpretation or enforcement of the Settlement Agreement.
“André F.J. Scott”
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