PIERRE TREMBLAY Plaintiff v. SHAW CABLESYSTEMS G.P., 2012 FC 925

Date: 20120723 Docket: T-132-11 Citation: 2012 FC 925 Ottawa , Ontario , July 23, 2012 PRESENT: The Honourable Mr. Justice Scott BETWEEN: PIERRE TREMBLAY Plaintiff and SHAW CABLESYSTEMS G.P. Defendant 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" Judge 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” Judge

FEDERAL COURT SOLICITORS OF RECORD DOCKET: T-132-11 STYLE OF CAUSE: PIERRE TREMBLAY v SHAW CABLESYSTEMS G.P. MOTION HELD VIA VIDEOCONFERENCE ON JULY 18, 2012 FROM QUÉBEC, PROVINCE OF QUÉBEC AND

CALGARY, PROVINCE OF ALBERTA REASONS FOR JUDGMENT AND JUDGMENT: SCOTT J. DATED: July 23, 2012 ORAL AND WRITTEN REPRESENTATIONS BY : James Poyner and Kenneth Baxter FOR THE PLAINTIFF Tamela Coates and Ward Branch FOR THE DEFENDANT SOLICITORS OF RECORD : POYNER BAXTER LLP North Vancouver , British Columbia FOR THE PLAINTIFF FRASER MILNER CASGRAIN LLP Calgary , Alberta FOR THE DEFENDANT