Wilkins v. Rogers Communications Inc., [2008] O.J. 4381 (S.C.J.)

In a somewhat surprising decision, the Ontario Superior Court of Justice recently certified a class action against Rogers Cable in respect of two movie channels that were unavailable to subscribers for short periods in mid-2006 (according to the evidence, this occurred at off-peak hours for maintenance reasons).

The proposed class was defined as "all persons (including their estates, executors or personal representatives) corporations and other entities who rented one or more digital cable terminal(s) and subscribed to Rogers digital cable services" at the relevant times and further specifically included those who had subscribed to one channel to which the proposed representative plaintiff had not subscribed. Justice Shaughnessy found that all five certification requirements had been met, subject to modification of the litigation plan.

The Statement of Claim alleged breach of contract, negligence, unjust enrichment and breach of Ontario's Consumer Protection Act, 2002. Rogers argued that the pleadings lacked particularity and that the Service Agreement excluded the consumer legislation's deemed warranty. The court stated that because, on certification, the "plain and obvious" test is used to determine whether pleadings disclose a cause of action, factual allegations must be presumed true. In other words, there is no inquiry into the merits of the action: the issue is whether it is appropriately presented as a class action.

The court reiterated the purposes of class definition set out in Bywater v. Toronto Transit Commission, [1998] O.J. No. 4913 (Gen. Div.): (i) to identify those with a potential claim against the defendant, (ii) to identify those who should be bound by the result, and (iii) to determine who is entitled to notice of certification in accordance with the Class Proceedings Act, 1992 ("CPA"). Likelihood of success is not a factor to be considered in determining whether there is an identifiable class, Justice Shaughnessy observed.

Rogers argued that there were no common issues, particularly as liability with respect to each claim would have to be determined individually. However, Justice Shaughnessy found that there was a common issue concerning both the interpretation of the Service Agreement and the alleged breach of contract arising from the service outages. He added that damages could be deter¬mined in accordance with s. 24 of the CPA, which permits the court to order all or part of a damages award to be divided among some or all of the class members on an average or proportional basis.

In determining that a class action would further the policy objectives of the CPA and would clearly be the preferable procedure, Justice Shaughnessy found that requiring each class member to pursue their claim individually would be unreasonable, infeasible (given the small size of the individual claims) and unduly burdensome to the judicial system.

While Justice Shaughnessy concluded that "access to justice" might be denied if the action were not certified, the decision does raise the question whether every claim, no matter how small or possibly unmeritorious, ought to receive the attention of scarce judicial resources. Rogers is seeking leave to appeal the decision.