• Modification of Text Messaging Tariffs
  • May 6, 2014 | Author: Stefano Mingarelli
  • Law Firm: McCarthy Tétrault LLP - Montreal Office
  • In Martin v. Société Telus Communication, 2014 QCCS 1554, a class action was authorized and the case was heard on the merits. The claim dealt with the modification of text messaging fees of consumers who had entered into fixed-term contracts with Telus. According to the Plaintiffs, by modifying fees for incoming text messages Telus had breached s. 12 of the Quebec Consumer Protection Act (“Act”), which provides that “no costs may be claimed from a consumer unless the amount thereof is precisely indicated in the contract.”

    The Superior Court of Quebec made several points which are of relevance to businesses with respect to their obligations under the Act, as well as to particular remedies that may be available to consumers who allege a violation of their rights under the statute.

    First, the unilateral modification of fees during a fixed-term contract is not permissible under article 12 of the Act if the service provider has not informed the consumer of the precise value of the modification prior to entering into the contract. Here, there was an infraction to the Act because even though consumers knew that Telus had a right under the contract to unilaterally modify the fees at any time, the clause in question did not specify what the precise amount of that modification would be prior to entering into the contract.

    Second, the Court clarifies that moral damages alleged in class actions based on violations of the Act have to be proven. Even if the mere proof of a violation of the Act generates an absolute presumption that an injury has occurred, this presumption does not compel a Court to systematically condemn a defendant to compensate the class members for moral damages. In order to claim moral damages, class members need to prove on a balance of probabilities that they have suffered something more than a mere inconvenience.

    In this case, Plaintiffs were unable to show that the modification of their text messaging fees caused them moral damages.

    Lastly, the Court concluded that a mere violation of the Consumer Protection Act does not justify punitive damages in all cases.

    In order for a violation of the Act to justify the award of punitive damages, a plaintiff must show that the defendant’s violation was intentional, malicious or vexatious, and that their conduct displayed ignorance, carelessness or serious negligence under the Act.

    The Court found that Telus’ conduct did not satisfy these criteria since it was largely based on the guidelines set out in the CRTC’s Telecom Regulatory Policy (CRTC 2013-271) regarding wireless service providers. Because Telus acted in conformity with the Federal regulations, the Court was unable to conclude that its conduct was an instance of gross negligence.

    Although the class action was granted on the merits, the Court’s conclusions regarding the remedies available to class members under the Act are rather favourable for businesses whose operations may inadvertently violate a provision of this statute.