Docket: 1773 Mark Frey, Trudy Betthel, Bryan Pawlachuk, Nathalie Pawlachuk, D & S Homes Ltd., Dorothy Dietz, John Deitz, Neil MacDonald, Neil Woolston, Erik Doucet, Betty Lou Gaudette, Anna Hanson, Julie Elkerton, Gregory Teed, Scott Andrews, David Musarai, Mark Burke, Rozanne Aquin , Jeff Parent, Corey Oppebeon, John Fearon, Nevin Low, Jerry Karalash, Jennifer Evenson, Danielle Favreau, Jeff Ledding, Terese Hafichuk-Walkin, Jessica Cordingley, Alison Weinberger, Terry Parker, Carol Walker, C, 2013 SKCA 26

THE COURT OF APPEAL FOR SASKATCHEWAN Citation: 2013 SKCA 26 Date: 2013-03-08 Between: Docket: 1773 Mark Frey, Trudy Betthel, Bryan Pawlachuk, Nathalie Pawlachuk, D & S Homes Ltd., Dorothy Dietz, John Deitz, Neil MacDonald, Neil Woolston, Erik Doucet, Betty Lou Gaudette, Anna Hanson, Julie Elkerton, Gregory Teed, Scott Andrews, David Musarai, Mark Burke, Rozanne Aquin , Jeff Parent, Corey Oppebeon, John Fearon, Nevin Low, Jerry Karalash, Jennifer Evenson, Danielle Favreau, Jeff Ledding, Terese Hafichuk-Walkin, Jessica Cordingley, Alison Weinberger, Terry Parker, Carol Walker, Cindy Belton, Leigh Edmunds, Lauren Tomashich, Stan Pappas, Amanda Donald, Richard Skuce, Lant Lutterodt, Shelley Frank,Steve Drover, John Gillis and Michael Lucas Appellants (Plaintiffs) - and – BCE Inc., Bell Canada, Bell Mobility Cellular Inc., Bell Mobility Inc., Aliant Inc. , Aliant Telecom Inc., Bell Atlantic, Maritime Tel & Tel Ltd., NBTEL Inc., Island Telecom Inc., Newtel Communications Inc., Bell Aliant Regional Communications Limited Partnership , MTS Communications Inc., Telus Corporation, Telus Mobility, B.C.

Tel, Telus Communications (B.C.) Inc., Clearnet Communications Inc., Alberta Government Telephones (AGT), Saskatchewan Telecommunications (SaskTel), Saskatchewan Telecommunications Holding Corporation, AT & T Canada Inc., Microcell Telecommunications Inc., Microcell Communications Inc. , Microcell Solutions Inc., Fido Solutions Inc. , Rogers, Inc., Rogers Communications Inc., Rogers Cantel Inc. , Rogers Wireless Inc. And Rogers AT & T Wireless Respondents (Defendants)

Before: Klebuc C.J.S. (in Chambers) Counsel: E.F. Anthony Merchant, Q.C. for the Appellants Gord Kuski, Q.C. and Phil Gallet for the Respondent, Telus Corporation, Telus Mobility, B.C. Tel, Telus Communications (B.C.) Inc., Clearnet Communications Inc. and Alberta Government Telephones Kent Thomson for Microcell Communications Inc., Microcell Solutions Inc., Fido Solutions Inc., Rogers Inc., Rogers Wireless Inc. and AT & T Canada Wireless Kathryn Podrebarac and Alan Melamud for the Respondent, Bell Mobility Inc.

William Johnson, Q.C. for the Respondent, Bell Aliant Regional Communications Limited Robert Leurer, Q.C. for the Respondents, Saskatchewan Telecommunications and Saskatchewan Telecommunications Holding Corporation Kara Bashutski for the Respondent, MTS Communications Application: From: 2009 SKQB 165 Heard: December 14, 2012 Disposition: Application Dismissed Written Reasons: March 8, 2013 By: The Honourable Chief Justice Klebuc Klebuc C.J.S. I.

Introduction [ 1 ] The appellants have applied pursuant to Rule 71 of The Court of Appeal Rules for an order extending the time to serve and file a notice of appeal from an order made in the Court of Queen’s Bench in the early stages of a class action, the particulars of which order are dealt with later.

To avoid potential confusion, the appellants are referred to in these reasons as the plaintiffs and the respondents as the defendants save where reference to any individual party is necessary. [ 2 ] The defendants individually provided wireless and cellular communication services in Saskatchewan and other Canadian jurisdictions for which they charged and collected a systems access fee from their customers. On August 9, 2004, the plaintiffs commenced this action seeking damages for losses they suffered by virtue of the defendants having illegally collected service access fees from them.

I shall refer to this as the “Frey Action.” Mr. Justice Gerein, the judge assigned to manage the Frey Action, certified it as an opt-in class action by fiat dated April 24, 2008 (the “Certification Order”). As of the certification date, The Class Actions Act , S.S. 2001, c. C-12.01 only allowed class actions by residents of the province and non-residents who elected to participate or opt in to a certified class action. Otherwise, the Court of Queen’s Bench did not have jurisdiction to grant the sought-after relief. These actions are often described as “opt-in class actions.”

[ 3 ] This changed with the enactment of The Class Actions Amendment Act, 2007, S.S. 2007, c. 21 (the “ Amendment Act ”). It came into force on April 1, 2008 and authorized the commencement of multi-jurisdiction class actions, with Saskatchewan courts having jurisdiction over residents and non-residents unless the latter elect not to participate in a certified class action. These actions are often described as “national class actions.” [ 4 ] Shortly after the Amendment Act came into force, the plaintiffs applied for an order amending the Certification Order to convert the Frey Action to a national class action.

Justice Gerein dismissed the application based on the understanding the Amendment Act was substantive rather than procedural, meaning that it was not retroactive and he, therefore, lacked authority to grant the requested conversion. (See: his fiat dated May 7, 2009 [2009 SKQB 165]). I will refer to his order dismissing the conversion application as the “Conversion Dismissal Order.” It is this order the plaintiffs wish to appeal but are out of time. Hence, they seek an extension of time within which to file and serve a notice of appeal, [ 5 ] For the following reasons I have decided to dismiss their application.

II. Background and procedural history [ 6 ] The plaintiffs’ application for an extension of time requires me to consider numerous steps taken by the parties over a protracted period. For the sake of brevity and ease of reference, these steps are set out in chronological order and in point form. • 2004-08-09: The Frey Action was commenced on this date (Q.B.G. 1611 of 2004, J.C. Regina). Since then, several of the initial defendants were struck from the action and others added as defendants.

The Merchant Law Group has represented the plaintiffs throughout. • 2004-11-01: Steve Drover et al. commenced an opt-in class action against the defendants in the Province of British Columbia (“the Drover Action”). The Merchant Law Group also has represented Steve Drover et al. throughout. Of particular note is that the statement of claim in the Drover Action is essentially the same as the one in the Frey Action other than it involves different plaintiffs and several different defendants.

It was dismissed on January 14, 2013 and is relevant to the extent it may apply to an argument advanced by the defendants (see: 2013 BCSC 50 ). • 2007-09-28: The defendants applied to this Court for leave to appeal the Certification Order. • 2008-04-01: The Amendment Act came into force. • 2008-04-24: Justice Gerein certified the Frey Action as an opt-in class action. Mr.

Colin Chatfield was designated the sole representative plaintiff in the Frey Action. • 2009-05-07: Sometime prior to this date the plaintiffs applied for an order amending the Certification Order to convert the Frey Action to a national class action. In response Gerein J. made the Conversion Dismissal Order declining to convert the Frey Action to a national class action.

This order issued on June 1, 2009. • 2009-05-22: The plaintiffs applied to this Court by notice of motion for leave to appeal the Conversion Dismissal Order, but they neither served nor filed a draft notice of appeal as part of their leave application. • 2009-07-24: The Merchant Law Group commenced a national opt-out class action in Saskatchewan on behalf of Terry Collins et al. (“the Collins Action”) against some of the defendants in the Frey Action.

The Merchant Law Group continues to represent the plaintiffs in the Collins Action. • 2009-07-27: The representative plaintiff in the Frey Action applied for an order permitting the plaintiffs to discontinue that action (Q.B.G. No. 1611) or, in the alternative, an order staying it until an application for a certification order in the Collins Action was dealt with (Q.B.G. 1128). Approximately one month later, the Merchant Law Group applied for an order certifying the Collins Action. • 2010-02-22: Justice Gerein stayed the Collins Action on the basis that it constituted an abuse of process.

He allowed the plaintiffs to pursue the Frey Action. • 2010-03-15: After numerous adjournments by the parties, the defendants’ application for leave to appeal the Certification Order in the Frey Action and the plaintiffs’ application for leave to appeal the Conversion Dismissal Order were heard by Justice G.A. Smith. She granted the defendants leave to appeal the Certification Order and granted the plaintiffs leave to appeal the Conversion Dismissal Order on the basis set out in paras. 11, 27 and 28 of her fiat dated March 15, 2010 [2010 SKCA 30 , 350 Sask. R. 117].

These paras. provide as follows: [11] Although the plaintiffs filed a notice of motion indicating on Court file 1773 that they intended to apply for leave to appeal the above noted orders, no further material was filed on this application and, in particular, no draft notice of appeal was filed, setting out the grounds of the proposed appeal, as is required by the Rules.

Nonetheless, the parties had agreed, in July, 2009, that this application would be heard together with the defendants’ various applications for leave.… . . . [27] The plaintiffs’ application for leave to appeal the dismissal of their application to amend the certification order to an order in relation to a national class on an opt-out basis in accordance with the amendments of the Act must be granted. I acknowledge the deficiency of the material filed in relation to this application in that no draft notice of appeal was filed.

However, in this case, the order of Gerein J. clearly raises an issue of law, for it was based entirely on his

interpretation of the new amendments, and the ground of appeal is therefore clearly apparent. This is not, in my view, frivolous or vexatious or bound to fail in light of the appellate standard of review. Nor

will it unduly increase the cost of or unduly delay the proceedings. In fact, counsel made it clear that he was seeking leave only in thecase that the defendants were granted leave to appeal. In addition, the issue is of importance both in relation to these proceedings and inrelation to the general proposition of law relied upon. [28] … [T]he appellants are to file a formal notice of appeal setting out the grounds of their appeal with ten days of the date of thisfiat, in accordance in with Rules.

The plaintiffs never filed the required notice of appeal. • 2011-11-15: This Court dismissed the defendants appeal from the Certification Order in the Frey Action. Then, on or about January13, 2012, the defendants, individually, applied to the Supreme Court of Canada for leave to appeal the aforementioned decision by thisCourt. On June 28, 2012, the Supreme Court denied their application. • 2011-12-15: Steffan Ileman commenced a class-action in the Supreme Court of British Columbia pursuant to the Class ProceedingsAct, R.S.B.C. 1996, c. 50 (the “Ileman Action”).

He is represented by counsel other than the Merchant Law Group. His counsel recentlyasked the Supreme Court of British Columbia to appoint a case management judge. • 2012-08-27: Approximately 28 months after Smith J.A. granted the plaintiffs leave to appeal the Conversation Dismissal Order,they launched the application now before me to extend the time in which to serve and file a notice of appeal. [7] The within application is governed by the provisions of s. 39(3) of The Class Actions Act; ss. 9(3) and 9(6) of The Court ofAppeal Act, 2000, S.S. 2000, c. C-42.1; and Rule 71 of The Court of Appeal Rules.

They provide in turn as follows: 39(3) With leave of a justice of the Court of Appeal, any party may appeal to the Court of Appeal from: (

a) an order certifying or refusing to certify an action as a class action; *** 9(3) Where leave to appeal is necessary, an application for leave must be made within 15 days after the date of the decision for whichleave to appeal is being sought or within any time ordered by the court or a judge. . . . 9(6) On the application of any party, a judge or the court may extend an appeal period mentioned in this

section where, in the opinion ofthe judge or court, it is just and equitable to do so. *** Rule 71 – The court or a judge may enlarge or abridge the time periods fixed by these rules or by order on such terms as the case mayrequire. The order enlarging or abridging the time may be made before or after the fixed time period has expired. III. ANALYSIS [8] The provisions of s. 39(3) of The Class Actions Act and s. 9(3) of The Court of Appeal Act, 2000 are self-explanatory and arenot in issue.

The factors to be considered in applications for an extension of time in which to serve and file a notice of appeal pursuant tos. 9(6) and Rule 71 are well established and succinctly stated by this Court in Bank of Nova Scotia v. Saskatoon Salvage Company (1954)Ltd. (1984), (SK CA), 29 Sask. R. 285. It confirmed that an extension of time to appeal is justified if the extensionrequested would not seriously prejudice the respondent beyond inconvenience of the kind one would normally experience in the appealprocess.

It further noted that when making the required assessment, the following factors should be considered: (1) whether theappellant had a bona fide intention to appeal within the time limited for appeal; (2) whether the appellant has shown at least an arguablecase; and (3) whether the appellant acted with reasonable diligence or has a reasonable excuse for the delay. [9] In a specific case, one or more of the enumerated factors may be more important than another. And overarching the threeenumerated factors is the obligation to achieve a just result having regard to the circumstance before the Court.

For example, in TreelandMotor Inn Ltd. v. Western Assurance Co., (SK CA), [1984] 2 W.W.R. 285 (Sask. C.A.) a combination of minimalprejudice to the respondents, coupled with an arguable case by the appellant, were found to outweigh the lack of intention to appealduring the appeal period. As stated by Bayda C.J.S. in Royal Bank of Canada v. G.M. Homes Inc. et al (1982), (SKCA), 25 Sask. R. 6 (C.A.), “[t]he only constant rule is that the discretion must be exercised judicially” (para. 3). [10] That said, I turn to the first of the aforementioned factors. A.

Is there a reasonable explanation for the delay in serving and filing a notice of appeal as directed by Smith J.A? [11] The plaintiffs submitted their delay in serving and filing a notice of appeal concerning the Conversion Dismissal Order isattributable to: (1) the perception of plaintiffs’ counsel that if the Supreme Court of Canada granted the defendants leave to appeal theCertification Order and this order were subsequently set aside, an appeal from the Conversion Dismissal Order would become moot; (2)a clerical error in the leave order made by Smith J.A. took time to resolve; (3) an oversight by plaintiffs’ counsel; and (4) the defendantshad agreed to the appeal from the Conversion Dismissal Order being adjourned until the fate of the Certification Order was determined.

[ 12 ] The defendants maintained that: (1) they did not directly or implicitly agree to the plaintiffs’ appeal of the Conversion Dismissal Order being placed on hold for any period; (2) the plaintiffs insisted on moving ahead with disclosure of documents and examinations for discovery in the Frey Action notwithstanding that the Certification Order was under appeal, which constitutes conduct inconsistent with the alleged standstill arrangement; (3) the clerical error in the leave order by Smith J.A. could not have reasonably confused plaintiffs’ counsel and could have been quickly resolved; (4) the plaintiffs took nearly two years to reactivate their proposed appeal from the Conversion Dismissal Order; and (5) the plaintiffs delayed their proposed appeal of that order for the purpose of ensuring that the Supreme Court would only be called upon to review the Certification Order as one pertaining to an opt-in class action and not one the plaintiffs intended to convert to a national class action. [ 13 ] Based on the motion records and the Court file, I am satisfied the defendants never agreed to the plaintiffs postponing their appeal from the Conversion Dismissal Order until the Certification Order was confirmed or set aside by the Supreme Court.

Furthermore, the clerical error in question could have been quickly resolved by the plaintiffs, yet they chose not to pursue its resolution. [ 14 ] I reject the submission that the plaintiffs refrained from punctually serving and filing a notice of appeal from the Conversion Dismissal Order to gain some tactical advantage in the defendants’ appeal of the Certification Order to this Court and subsequently to the Supreme Court.

I am satisfied the plaintiffs refrained from moving forward with their appeal of the Conversion Dismissal Order pending the outcome of the defendants’ appeal of the Certification Order for the reason that, if the Certification Order was set aside, their appeal from the Conversion Dismissal Order would be moot. [ 15 ] Beyond that, I am of the view that the plaintiffs’ explanation is not reasonable when considered in the context of this Court’s procedural rules and the difficulties that may arise when its rules are ignored.

Here, the plaintiffs never asked the Court to delay the hearing of their appeal from the Conversion Dismissal Order until the defendants had exhausted their appeals from the Certification Order. Rather, they ignored the Court’s rules and by so doing acted unreasonably. B.

Did the plaintiffs have a bona fide intention to appeal within the time limited for appeal? [ 16 ] As previously noted, the plaintiffs applied for leave to appeal the Conversion Dismissal Order by way of a motion served and filed within 15 clear days of the date the order was made but failed to serve and file a draft notice of appeal as part of their application. After hearing the parties, Smith J.A granted the plaintiffs leave to appeal and directed plaintiffs’ counsel to file a notice of appeal within ten days of her fiat.

Based on her reasons and the motion records, I am satisfied the plaintiffs had a bona fide intention to appeal the Conversion Dismissal Order if the Certification Order survived the appeals, but not otherwise. In other words, their intention to proceed with their proposed appeal was conditional on the outcome of the defendants’ appeal against the Certification Order. C. Is there an arguable case to be made to a panel of the Court? [ 17 ] I agree with Smith J.A.’s conclusion that the plaintiffs had an arguable case. See para. 27 of her fiat dated March 15, 2010. D.

Would the defendants be prejudiced beyond what would be incurred in the usual appeal process? [ 18 ] A brief overview of the submissions by the parties is warranted.

The plaintiffs submitted the following: (1) the requested extension of time would not materially prejudice the defendants because they have not changed the nature of their defence by virtue of the plaintiffs not having served and filed a notice of appeal from the Conversion Dismissal Order due to an oversight by their counsel; (2) the proposed appeal for which Smith J.A. granted leave involves a question of law that can be expeditiously adjudicated; and (3) if the plaintiffs were successful in the proposed appeal and their class action was converted to a national class action, the defendants would benefit to the extent other class actions would be put on hold or stayed pending a decision in the within action. [ 19 ] In response, the defendants submitted they would be materially prejudiced in several respects if the requested relief were granted. [ 20 ] First, the proposed appeal from the Conversion Dismissal Order would require yet another appeal, including the preparation of additional material that would involve significant additional costs―costs that could have been readily avoided had the two appeals been pursued and perfected and heard at once, as they should have been but for the tactical position adopted by the plaintiffs. [ 21 ] Second, if upon hearing the proposed appeal the Court should set aside the Conversion Dismissal Order, the defendants would incur substantial costs and delays associated with such hearings as the case management judge may direct for the purpose of determining whether the Certification Order ought to be converted outright, or materially amended, or set aside, based on such further evidence as the parties may provide.

Moreover, a further series of appeals of the kind that have occurred to date might be necessary. [ 22 ] Third, if this Court allowed the plaintiffs’ proposed appeal, there is no evidence that the other class actions against them would be stayed pending a resolution of the Frey Action, particularly since the only cause of action permitted pursuant to the Certification Order is based on unjust enrichment while many other remedies are pursued in other class actions against the defendants.

Regarding the third submission, the defendants argued that the Court should not consider potential judicial economy for the defendants in the absence of strong supportive evidence. [ 23 ] I agree with the defendants regarding last point. It is not for me to consider, much less evaluate, whether the defendants might in some circumstances benefit if the Frey Action were certified as a national class action or whether other class actions would be stayed or put on hold.

On the whole of the evidence, I am satisfied the defendants would be materially prejudiced if the time to appeal the Conversion Dismissal Order was extended.

[ 24 ] That said, I turn to the ultimate issue of whether it would be just to extend the time to appeal the Conversion Dismissal Order, having regard to my conclusion on each of the four noted factors. Based on those factors and the whole of the evidence, I conclude that it would be unjust to grant the relief sought by the plaintiffs. IV. Conclusion [ 25 ] The plaintiffs’ application for an extension of time to serve and file a notice of appeal from the order of Justice Gerein dismissing their application to convert the Frey Action to a national class action is dismissed.

There will be no order for costs in relation to their application. DATED at the City of Regina, in the Province of Saskatchewan, this 8th day of March, A.D. 2013. “Klebuc C.J.S.” ___________________ Klebuc C.J.S.