



COURT OF APPEAL FOR ONTARIO

CITATION: Nelson v. TELUS Communications
    Inc., 2021 ONCA 751

DATE: 20211021

DOCKET: C69093

Strathy C.J.O., Nordheimer J.A. and Wilton-Siegel
    J. (
ad hoc
)

BETWEEN

Marjorie Nelson

Plaintiff (Respondent)

and

TELUS Communications Inc.

Defendant (Appellant)

Catherine Beagan Flood, Christopher DiMatteo and Natalie
    Cammarasana, for the appellant

Douglas Lennox, Careen Hannouche and Andrew Cleland, for the
    respondent

Heard: October 20, 2021 by video conference

On appeal from the order of Justice Paul M. Perell of the
    Superior Court of Justice, dated January 12, 2021, with reasons reported at 2021
    ONSC 22, 2021 ONSC 23 and 2021 ONSC 24.

APPEAL BOOK ENDORSEMENT

[1]

The appeal is dismissed, substantially for the careful and thorough
    reasons of the motion judge.

[2]

The provincial legislation at issue, the
Wireless Services Agreement
    Act 2013
(
WSAA
), has been repealed. Except for the purposes of
    this class proceeding, the issue of the constitutional validity of the
WSAA
appears to be of no further consequence. None of Ontario, Canada or the CRTC
    has sought to intervene in this proceeding.

[3]

The appeal has largely been a re-argument of the issues that were before
    the motion judge, without any reference to his reasons and without specifically
    identifying any error in his factual findings, or any error in his application
    of well-settled principles of constitutional law. It is evident from his
    reasons that the motion judge carefully considered the appellants arguments
    and the applicable law, and we agree with his conclusions that (a) the
WSAA
was within provincial legislative jurisdiction; and (b) it was not rendered
    inoperative as a result of either paramountcy or interjurisdictional immunity.

[4]

Nor do we accept the appellants alternative submission that the class
    action should be stayed so that the CRTC can determine whether the plaintiff is
    entitled to a refund. The motion judges conclusion that the
WSAA
was
    valid provincial legislation that was operative during the class period does
    not permit any conclusion other than the plaintiff is entitled to assert her
    claim  that the appellant breached s. 16 of the
WSAA
by failing to
    provide refunds to class members  and that the Superior Court of Justice has
    jurisdiction over the proceeding.

[5]

Costs to the respondent fixed at the agreed amount of $65,000, inclusive
    of disbursements and all applicable taxes.


