SCOTT WILSON Plaintiff v. TELUS COMMUNICATION INC., 2019 FC 276

Date: 20190306 Docket: T-2014-18 Citation: 2019 FC 276 Ottawa, Ontario, March 6, 2019 PRESENT: The Honourable Mr. Justice Manson BETWEEN: SCOTT WILSON Plaintiff and TELUS COMMUNICATION INC. Defendant ORDER AND REASONS UPON motion by the Defendant, TELUS Communications Inc. [TELUS], made at the General Sittings in Calgary, Alberta, on March 4, 2019, for an Order pursuant to Rules 221(1) (a), (c), and (

f) of the Federal Courts Rules , SOR/98-106 , to strike the Statement of Claim against TELUS; AND UPON hearing the submissions of the parties; AND UPON deciding that the motion is granted and the Plaintiff’s Statement of Claim is struck, without leave to amend, for the reasons that follow. I. Background [ 1 ] The background is aptly summarized by the Defendant. [ 2 ] The Plaintiff, Mr. Scott Wilson, who is self-represented, filed a Statement of Claim against the Defendant, TELUS, on November 21, 2018. [ 3 ] TELUS seeks an Order pursuant to Rules 221 (l)(a), (

c) and (

f) of the Federal Courts Rules to strike the Statement of Claim against TELUS on the basis that this Court lacks the jurisdiction to adjudicate the matter, as (

i) it is plain and obvious that the claim discloses no reasonable cause of action; (ii) the claim is scandalous, frivolous or vexatious; or (iii) the claim is otherwise an abuse of the process of the Court. TELUS also seeks its costs. [ 4 ] On or about December 24, 2014, Mr.

Wilson entered into two (2) wireless services with TELUS: a . a wireless phone under contract until December 24, 2014 [the Mobile Phone 1 Plan]; and b . a tablet under contract until December 24, 2016 [the Tablet Plan]. [collectively, the Mobile Service Contracts] [ 5 ] The Mobile Service Contracts include the following authorization: I consent to TELUS getting information about my credit history from time to time, and I authorize any person, consumer reporting agency or credit grantor to verify the information provided here.

I also consent to the exchange of credit information with others at any time, including my payment history with TELUS. [ 6 ] On or about August 28, 2016, Mr.

Wilson agreed to the terms and conditions with TELUS for the provision of Internet Service [the Internet Access Service Terms Agreement]. [ 7 ] The Internet Access Service Terms Agreement also states, at paragraph 57, that TELUS may disclose information kept by TELUS to " “an agent retained by TELUS to evaluate [a customer’s] creditworthiness or collect [a customer’s] account, provided the information is required for and is used only for that purpose.” " [ 8 ] Since 2018, Mr. Wilson has started the following actions against TELUS or its authorized agents: a .

Civil claim against TELUS in the Provincial Court of Alberta (Civil), action no. PI890102975, filed on July 20, 2018; b . Action against TELUS in the Federal Court, file no. T-2014-18, filed on November 21, 2018; c . Civil Claim against CBV Collection Services Ltd (CBV) in the Provincial Court of Alberta (Civil), action no. P1890104692, filed on December 14, 2018; and d . Action against Metropolitan Credit Adjusters Ltd. (MetCredit) in the Provincial Court of Alberta (Civil), action no.

P1990100034, filed on January 4, 2019. [ 9 ] A complaint was also made to the Commission for Complaints for Telecom-Television Services [CCTS], as referenced at paragraphs 25 and 26 of Mr. Wilson’s Statement of Claim.

[10] In this action, Mr. Wilson is requesting relief in the amount of $50,000.00 to $250,000.000, in addition to "“general damages forlegal cost[s]”" and costs of the proceeding. [11] Mr. Wilson’s claim before this Court is with respect to the services and contracts he entered into with TELUS which were set up tobe paid by preauthorized credit card. Specifically, the claim alleges that there was an error in processing payments for Mr. Wilson’saccount after his credit card information was updated. [12] The claim further alleges that as a result of this issue, TELUS was unsuccessful in withdrawing funds for Mr.

Wilson’s mobilityaccount and consequently TELUS transferred the account to a collection agency, for three months of non-payment. [13] Mr. Wilson refers to the following acts or regulations in support of his claim: a. Telecommunications Act, SC 1993, c 38; b. Personal Information Protection and Electronic Documents Act, SC 2000, c 5 [PIPEDA]; c. Telecom Regulatory Policy CRTC 2013-271 and Telecom Regulatory Policy CRTC 2017-200 [Wireless Code]; d. Competition Act, RSC 1985, c C-34; and e. Consumer Protection Act, RSA 2000, c C-26.3 [14] As the Defendant summarizes in their written representations, Mr.

Wilson alleges the following wrongdoings on the part ofTELUS: a. TELUS’ actions resulted in a serious threat against the Plaintiff’s reputation; b. TELUS’ operating system is flawed and allows TELUS’ employees to break contracts and regulations. In addition, TELUS isusing unfair business practices, anti-competitive, and completely breached security safeguards causing financial hardship andundue pain and suffering on the Plaintiff; c. TELUS has breached its Ethics Code and the Wireless Code in administering services throughout Canada; d.

TELUS has violated provisions of PIPEDA by disclosing personal information to a third party collection agency; in doing such,TELUS has lied and defamed the Plaintiff; e. TELUS has violated provisions of PIPEDA by incorrectly recording the Plaintiff s account. More specifically, the Plaintiff isalleging that TELUS has altered, destroyed, or not documented original documents; f. TELUS has made untrue, false, and misleading statements to the CCTS; g. TELUS has made a multitude of code and regulatory violations; h.

TELUS has failed to maintain and encourage competition in Canada in order to provide consumers with competitive prices andproduct choices, in contravention of the Competition Act ; i. TELUS, even presently, is intentionally putting undue financial hardship on the Plaintiff by abusing its dominant position andengaging in heavy-handed business practices; and j. TELUS, at all times, was acting in bad faith. [15] TELUS seeks an Order striking out the Statement of Claim on the basis that: a. The Federal Court has no jurisdiction; b. No reasonable cause of action and no material facts have been pled; c.

Vexatious and duplicative actions have been filed; d. There is an abuse of process. II. Issue [16] The issue for the Court is whether Mr. Wilson’s claim should be struck pursuant to Rule 221 of the Federal Courts Rules, andwhether leave to amend should be granted. III. Principles Applicable on a motion to strike [17] On a motion to strike out a pleading under Rule 221(

a) of the Federal Courts Rules, the applicable test is whether it is "“plain andobvious”" that the claim discloses no reasonable cause of action (Hunt v Carey, (SCC), [1990] 2 SCR 959 at para 32[Hunt]). The fact that the claim is a novel or difficult one is not a sufficient ground to strike a claim. The burden on the defendant is veryhigh and the Court should exercise its discretion to strike only in the clearest of cases. The pleading should be read generously with

allowance for inadequacies due to drafting deficiencies. [18] On a motion to strike a pleading on the grounds that it does not disclose a reasonable cause of action, those allegations that arecapable of being proved must be taken as true (Hunt, above).

This rule does not apply, however, to allegations based on assumptions and speculations (Operation Dismantle Inc. v The Queen (1985), (SCC), 18 DLR (4th) 481 (SCC) at 486-487 and 490-491).Moreover, the Court need not accept at face value bare allegations, factual allegations which may be regarded as scandalous, frivolous orvexatious, or legal submissions dressed up as factual allegations. IV. Analysis A. No Jurisdiction [19] In order to find that this Court has jurisdiction, a three-part test must be met: ITO-International Terminal Operations Ltd v MiidaElectronics Inc., (SCC), [1986] 1 SCR 752: 1.

There must be a statutory grant of jurisdiction by the federal Parliament. 2. There must be an existing body of federal law which is essential to the disposition of the case and which nourishes thestatutory grant of jurisdiction. 3. The law on which the case is based must be "a law of Canada" as the phrase is used in s. 101 of the Constitution Act,1867. [the ITO test] [20] I agree with the Defendant that the Court lacks jurisdiction with respect to the claims made under the various Acts and Regulations,as follows.

(1) Part 1 of the ITO test (

a) Telecommunications Act [21] Subsections 72(1) and 72(3) of the Telecommunications Act provide: Damages 72

(1) Subject to any limitation of liability imposed in accordance with this or any other Act, a person who has sustained lossor damage as a result of any act or omission that is contrary to this Act or any special Act or a decision or regulation madeunder either of them may, in a court of competent jurisdiction, sue for and recover an amount equal to the loss or damagefrom any person who engaged in, directed, authorized, consented to or participated in the act or omission. Exception

(3) Nothing in subsection (1) or (2) applies to any action for breach of a contract to provide telecommunications services orany action for damages in relation to a rate charged by a Canadian carrier. [Emphasis added] [22] Subsection 72(1) states that a person who has sustained loss or damages contrary to the Telecommunications Act may sue in a courtof competent jurisdiction. [23] Subsection 72(3) of the Telecommunications Act provides an exception, where the action is for "“breach of a contract to providetelecommunications services.”" This provision was specifically dealt with by the Court in B & W Entertainment Inc v TelusCommunications Inc (2004), 134 ACWS (3d) 939 (Ont Sup Ct) at paragraphs 16-17, where the Court stated: Section 72(3) of the Act confers upon the court the jurisdiction to hear claims for loss or damage by a person as a result ofany act or omission that is contrary to the act, or to a decision or regulation made under the Act.

However, under s. 72(3),there is no statutory right of action for loss or damage "in any action for breach of a contract to provide telecommunicationsservices... This is a clear expression by Parliament that disputes involving contracts to provide telecommunications services should beresolved by the CRTC and not by the courts. [Emphasis added] [24] This case involves a private law claim involving an alleged breach of contract and as such the Telecommunications Act does notconfer upon this Court the jurisdiction to hear Mr. Wilson’s claims for loss or damages.

Parliament has clearly expressed in subsection72(3) of the Telecommunications Act that disputes involving telecommunications service contracts should be resolved by the CRTC. (

b) PIPEDA

[ 25 ] According to the PIPEDA , a complainant may make an application to the Federal Court only after the Commissioner (Office of the Privacy Commissioner) has investigated the matter and issued its final report; or after the complainant has been notified that the investigation has been discontinued under

section 12.2(3). Subsection 14(1) of the PIPEDA reads: Hearing by Court Application 14

(1) A complainant may, after receiving the Commissioner’s report or being notified under subsection 12.2(3) that the investigation of the complaint has been discontinued, apply to the [Federal] Court for a hearing in respect of any matter in respect of which the complaint was made, or that is referred to in the Commissioner’s report, and that is referred to in clause 4.1.3, 4.2, 4.3.3, 4.4, 4.6, 4.7 or 4.8 of

Schedule 1, in clause 4.3, 4.5 or 4.9 of that

Schedule as modified or clarified by Division 1 or 1.1, in subsection 5(3) or 8(6) or (7), in

section 10 or in Division 1.1. [Emphasis added] [ 26 ] There is no evidence before the Court of an investigation by Mr. Wilson pursuant to the PIPEDA having taken place or to one being discontinued. As such, the Court does not have jurisdiction in respect of this alleged cause of action. [ 27 ] Moreover, with respect to Mr.

Wilson’s allegations that " “the defendant disclosed personal information to a third party without the knowledge or consent of the plaintiff in order to collect an outstanding debt it created itself,” " both the Mobile Service Contracts and the Internet Access Service Terms Agreement authorize TELUS to disclose personal information for the purpose of collecting a debt owed by the individual to the organization. As such, there is no reasonable cause of action to support Mr. Wilson’s claims regarding the protection of personal information. (

c) Wireless Code [ 28 ] The Wireless Code is governed by the CRTC and the appropriate forum to resolve disputes related to the Wireless Code is the CCTS or a provincial superior court, not the Federal Court. (

d) Competition Act [ 29 ] Mr. Wilson has alleged violations under the Competition Act with respect to

Part VI - Offences in Relation to Competition. Specifically, Mr. Wilson refers to

section 52, an indictable offence, regarding false or misleading representations. However, Mr. Wilson has not established any facts to support a claim under this provision. Mr. Wilson’s allegations are that TELUS has promoted its own self- interest and placed undue financial hardship on him by making representations to third parties and government agencies that have damaged his " “credit record and reputation which was publicly announced in statistics.” " Mr.

Wilson also claims that the lower credit score resulted in a competitive disadvantage for him. [ 30 ] Although the Court has jurisdiction to hear certain matters arising out of the contraventions of the Competition Act , for example, section 36(3) of the Competition Act , no such jurisdiction exists here. Mere bald and bold assertions without accompanying specific allegations of fact do not invoke or attract the jurisdiction of the Court. [ 31 ] Mr. Wilson has failed to establish the requisite material facts to make a claim under the Competition Act . (

e) Consumer Protection Act [ 32 ] Mr. Wilson also refers to the Consumer Protection Act and submits that TELUS has violated provisions of subsection 6.4 (A, B, E, J, T.l), 7, 7.1 of the Consumer Protection Act , alleging that TELUS changed the terms and conditions of service and " “has engaged in multiple unfair business practices” " . [ 33 ] The Consumer Protection Act is provincial legislation and the appropriate forum is either the Court of Queen’s Bench or the Provincial Court.

(2) Parts 2 and 3 of the ITO test [ 34 ] Moreover, under the second and third parts of the ITO test, Mr. Wilson fails to establish that federal law to any sufficient degree governs the overall relationship of the parties or is essential to the disposition of this case – this claim is essentially a complaint concerning payment issues Mr. Wilson encountered in dealing with TELUS and amounts to alleged breaches of contract, gross negligence, unfair business practices, bad faith, breach of privacy, attacks on rights and freedoms, and defamation. B.

No reasonable cause of action & no material facts [ 35 ] Rule 221(2) of the Federal Court Rules provides that no evidence shall be heard on a motion for an Order under paragraph (1)(a). Consequently, the affidavits of Sean Cromack were not considered for the purpose of determining whether the Statement of Claim fails to disclose a reasonable cause of action. [ 36 ] Rule 174 of the Federal Court Rules requires that every pleading much contain a concise statement of the material facts on which this party relies.

Rule 181 provides that a pleading must also contain particulars of every allegation contained therein. [ 37 ] Mr. Wilson's allegations are summarized above.

[ 38 ] These rules impose an obligation on a plaintiff to plead materials facts that disclose a reasonable cause of action, which has four basic requirements: (

a) every pleading must state facts and not merely conclusions; (

b) it must include material facts; (

c) it must state facts and not the evidence by which they are to be proved; and (

d) it must state facts concisely in a

summary form. [ 39 ] The Plaintiff’s Statement of Claim breaches the rules of pleading in every respect. Instead of stating material facts establishing a reasonable cause of action, the Statement of Claim consists of bare assertions, bald statements, arguments, and conclusions. C. Vexatious and duplicative [ 40 ] As stated above, Mr. Wilson has brought multiple proceedings before different Courts and Commissions, all based generally on the same alleged wrongs committed by TELUS.

I understand now that some of these proceedings may have been discontinued. [ 41 ] I am satisfied that this proceeding is, at the very least, borderline vexatious or frivolous. As Justice Stratas stated in Canada v Olumide , 2017 FCA 42 at paragraphs 19 & 32 : 19 The Federal Courts have finite resources that cannot be squandered. Every moment devoted to a vexatious litigant is a moment unavailable to a deserving litigant. The unrestricted access to courts by those whose access should be restricted affects the access of others who need and deserve it.

Inaction on the former damages the latter. … 32 In defining "vexatious," it is best not to be precise. Vexatiousness comes in all shapes and sizes. Sometimes it is the number of meritless proceedings and motions or the reassertion of proceedings and motions that have already been determined. Sometimes it is the litigant's purpose, often revealed by the parties sued, the nature of the allegations against them and the language used.

Sometimes it is the manner in which proceedings and motions are prosecuted, such as multiple, needless filings, prolix, incomprehensible or intemperate affidavits and submissions, and the harassment or victimization of opposing parties. [ 42 ] TELUS quite rightly points out that Mr.

Wilson has shown some of the harbingers of vexatious litigation, including: a . bringing proceedings that cannot succeed or that have no reasonable expectation to provide relief; b . seeking relief that is unwarranted or grossly disproportionate to any plausible remedy; c . advancing incomprehensible arguments and allegations; d . repeating and supplementing grounds and issues in subsequent actions, particularly where this results in simultaneous active overlapping actions; and e . bringing proceedings intended to disrupt, harass, oppress or extort a settlement or other benefit. D.

Abuse of process [ 43 ] Based on my findings above, the combined effects of lack of jurisdiction, lack of reasonable causes of action or material facts to support such causes of action, and the duplicative nature of proceedings commenced by Mr. Wilson, all lead to an inevitable conclusion that this proceeding amounts to an abuse of process. [ 44 ] I find that the Statement of Claim should be struck, without leave to amend. [ 45 ] I asked counsel for TELUS to make submissions as to costs, and was given two Bill of Costs, in the alternatives, (

a) costs on a full indemnity basis in the amount of $40,792.07; (

b) costs pursuant to Rule 407 and Tariff B, in the amount of $2,669.35. [ 46 ] I have decided, in my discretion, to award costs in the amount of $2,669.35 in favour of TELUS, payable forthwith. [ 47 ] However, I also find that Mr. Wilson should not be entitled to re-file a Statement of Claim against TELUS based on the same facts as alleged in this action, or any other claim in this Court, until such time as all costs awarded against Mr. Wilson in this Court are paid in full. ORDER THIS COURT ORDERS that : 1 .

The Statement of Claim is struck, without leave to amend, pursuant to Rule 221(1) of the Federal Court Rules on the basis that it is plain and obvious that: a . The Court has no jurisdiction to hear this case under Rule 221(1)(a); b . The Statement of Claim discloses no reasonable cause of action under Rule 221(1)(a); c . The Statement of Claim lacks sufficient material facts to sustain any cause of action under Rule 174; d . This proceeding constitutes an abuse of process. 2 . Costs to TELUS in the amount of $2,669.35 payable forthwith; 3 . Mr.

Wilson is not entitled to re-file a Statement of Claim against TELUS based on the same facts as alleged in this action, or any other claim in this Court, until such time as all costs awarded against Mr. Wilson in this Court are paid in full.

"Michael D. Manson" Judge FEDERAL COURT SOLICITORS OF RECORD DOCKET: T-2014-18 STYLE OF CAUSE: SCOTT WILSON v TELUS COMMUNICATIONS INC. PLACE OF HEARING: Calgary, Alberta DATE OF HEARING: march 4, 2019 ORDER AND REASONS: MANSON J. DATED: march 6, 2019 APPEARANCES : Mr. Scott Wilson For The plaintiff, on his own behalf Ms. Lindsay Bec For The defendant SOLICITORS OF RECORD : NORTON ROSE FULBRIGHT CANADA LLP Calgary, Alberta For The DEFENDANT