Date: 2023 09 13 Docket: CI 21-01-30868 (Winnipeg Centre) Indexed as : Utilebill Credit Corp. v. Rhys Pollard Cited as: 2023 MBKB 133 COURT OF KING’S BENCH OF MANITOBA B E T W E E N: UTILEBILL CREDIT CORP., ) Uba E. Anya Plaintiff/Defendant by Counterclaim, ) ) ) for the Plaintiff/Defendant by Counterclaim ) - and - ) ) RHYS POLLARD also known as RHYS D POLLARD also known as RHYS DAVID BOWMAN POLLARD, ) ) ) Michael D. Zacharias and Emily A. Rempel For the Defendant/Plaintiff by Defendant/Plaintiff by Counterclaim. ) ) ) ) ) Counterclaim Judgment Delivered: September 13, 2023 McCARTHY J. [ 1 ] This is a decision granting

summary judgment to the Defendant/Plaintiff by Counterclaim, Rhys Pollard. I refer to him herein as the “Defendant” or “Mr. Pollard”, and to the Plaintiff/Defendant by Counterclaim, Utilebill Credit Corp., as the “Plaintiff” or “Utilebill”. [ 2 ] This matter was commenced with the Plaintiff filing a Statement of Claim seeking judgment in the sum of $16,134.02 for amounts alleged to be owing under two lease agreements dated March 23, 2018 (“the Agreements”) between Mr. Pollard and Utilebill, who was carrying on business in Manitoba as Prairie Home Comfort.

The Plaintiff is also seeking costs and pre-judgment and post- judgement interest at a rate of 28% per annum. The Plaintiff alleges that the Defendant breached his contract with the Plaintiff by failing to pay amounts owing under the Agreements. [ 3 ] The Defendant has defended the Plaintiff’s claims alleging that he was induced to enter into the Agreements as a result of unfair business practices and fraudulent misrepresentation.

He has also counterclaimed seeking a declaration that the Agreements are void and unenforceable, reimbursement for costs he has incurred as a result of his involvement with Utilebill, punitive damages and costs on a solicitor-client basis. [ 4 ] This matter proceeded to three Pre-trial Conferences. At the first, the Plaintiff’s counsel failed to attend by teleconference, although John Nassar, a representative of Utilebill did attend. That Pre-trial Conference was rescheduled to allow the Plaintiff’s counsel to participate.

[ 5 ] At the second Pre-trial Conference the issue of proceeding by way of

summary judgment was canvassed and counsel for the Plaintiff, who practices in Alberta, was advised to familiarize himself with Dakota Ojibway Child and Family Services et al v MBH , 2019 MBCA 91 (“ DOCFS ”), which sets out the governing test in Manitoba with respect to

summary judgment proceedings. A copy of that decision was attached to the Defendant’s Pre-trial Brief. [ 6 ] At the third Pre-trial Conference the Defendant sought permission to bring a

Summary Judgment Motion. After some discussion, permission was granted and the matter was set for

Summary Judgment Hearing. Trial dates were also set in case they were required. Filing deadlines were set for materials to be filed by both parties. [ 7 ] The Defendant subsequently filed a Notice of Motion for

summary judgment seeking that the Statement of Claim filed by the Plaintiff be dismissed, an Order that the contract between the parties be rescinded, and that the other relief sought in the Defendant’s Counterclaim be granted. Specifically, in his materials the Defendant was seeking judgment for reimbursement of all amounts withdrawn from his bank account by Utilebill, damages for legal and professional costs incurred in proceedings to remove a lien from his property, and to uninstall equipment installed by Utilebill, punitive damages and solicitor-client costs. [ 8 ] At the

Summary Judgment Hearing, the Plaintiff argued that there was no clear evidence of misrepresentation which would vitiate the contractual obligations of the Defendant, and therefore it would not be appropriate to decide this matter by way of

summary judgment. The Plaintiff argued that the dismissal of its action as urged by the Defendant would be premature. [ 9 ] In support of its position, the Plaintiff relied upon the affidavit of John Nassar, sworn October 14, 2022, the terms of the written Agreements executed by the Defendant, and an audio recording played into evidence at the hearing of a discussion between a representative for Utilebill and the Defendant at the time of execution of the Agreements. The Defendant had been provided with the recording in advance of the hearing and commented on its content in his affidavit material as well.

The Plaintiff had undertaken to provide a formal transcript of the recording, but failed to do so in advance of the hearing. We proceeded without it. [ 10 ] Neither party cross-examined on the other party’s affidavit. The Evidence [ 11 ] The evidence of the Defendant, which follows, was taken from the affidavit of Rhys Pollard, affirmed September 28, 2022. [ 12 ] On March 23, 2018, an unknown door-to-door salesperson attended to his home in Winnipeg, Manitoba. The visit was unsolicited. The salesperson was accompanied by two assistants with whom he only made small talk. [ 13 ] When Mr.

Pollard answered the door, the salesperson told him that he was a representative of an HVAC company called Prairie Home Comfort. The salesperson presented him with a proposal to have a water filter and an air filter installed at his property as part of a cost-savings program being offered in conjunction with Manitoba Hydro. [ 14 ] Mr. Pollard deposed that the salesperson made the following verbal representations to him: (

a) Prairie Home Comfort was affiliated with Manitoba Hydro; (

b) the proposal was part of a cost-savings program being offered in conjunction with Manitoba Hydro; (

c) if he accepted the offer, he would be entitled to a $500.00 rebate from Manitoba Hydro; (

d) if he accepted the offer, the filters would be installed at no additional cost and he would thereafter lease the filters for a term of 10 years each, in exchange for monthly payments of $59.99 plus tax (equaling $67.79 inclusive of tax) for each piece of equipment; (

e) the monthly payments would be included as part of his monthly energy bills from Manitoba Hydro and therefore would be paid directly to Manitoba Hydro; and (

f) the filters would significantly reduce the amount of his future energy bills, which would, in turn offset, the cost of the filters. [ 15 ] At the same meeting the salesperson handed him two nearly identical documents, which Mr. Pollard was told were the 10-year leases for each of the filters. The salesperson also asked him for his telephone number and stated to him that a representative from Manitoba Hydro would call him to confirm Manitoba Hydro’s involvement in the cost-savings program. [ 16 ] Mr.

Pollard provided his telephone number to the salesperson and shortly thereafter, while the salesperson was still present, and before he had signed the Agreements, Mr. Pollard received a telephone call from a person that introduced themselves as a representative of Manitoba Hydro. He further deposed that the person on the telephone told him that if he installed the equipment at his property he would receive a $500.00 rebate from Manitoba Hydro. It was Mr.

Pollard’s evidence that after making those comments the telephone representative advised him that the telephone call would be recorded for assurance purposes and proceeded to have him confirm his name, that he was the owner of the property and the financial terms of the Agreements. He was also asked to confirm a

schedule for installing the equipment the next day. [ 17 ] Mr. Pollard deposed that he has since received a recording of the telephone call. It is his evidence that the telephone recording is not a complete recording of the entire telephone discussion as it omits the introductions between himself and the telephone representative, the representation that the caller was from Manitoba Hydro, and their discussion about the rebate that he would receive from Manitoba Hydro.

He confirms in his affidavit that the end of the recording of the telephone call contains the following statement, “And lastly for your convenience, we are not owned by or affiliated with [inaudible] any government agency or your current service provider. So, I’d like to thank you once again for choosing Prairie Home Comfort and have yourself a nice day.” (Affidavit of Rhys Pollard, affirmed September 28, 2022 at para. 12.)

[ 18 ] Mr. Pollard affirmed that, notwithstanding the above content of the telephone call he always understood that he was speaking with a representative of Manitoba Hydro and that the representations made by the salesperson, and those made by the telephone representative at the outset of the telephone discussion, were true. After the telephone call, he signed both Agreements while the salesperson and his assistants were still present in his home. [ 19 ] Mr. Pollard was also asked by the salesperson to provide his banking information in order to facilitate payment of the $500.00 rebate from Manitoba Hydro.

His evidence is that he was advised that he would miss the deadline for receiving the rebate if his banking information was not provided by the end of the week. As he did not have any cheques or banking information on hand, he undertook to provide it. [ 20 ] On the following day, March 24, 2018, a different individual who represented himself to Mr. Pollard as a representative of Prairie Home Comfort came to Mr. Pollard’s property, installed the equipment, and provided him with a document called a Completion Certificate. [ 21 ] Subsequently, Mr.

Pollard went to his banking institution and obtained a form that contained his direct deposit information. A few days later the salesperson contacted Mr. Pollard by telephone to follow-up on his request for banking information and then went to Mr. Pollard’s home to pick up a copy of the form. [ 22 ] On May 17, 2018, it came to Mr. Pollard’s attention that his bank account was overdrawn. Upon checking his banking statements he discovered that on May 15, 2018 Utilebill had made two withdrawals of $67.79 for a total of $135.58.

He noted that Utilebill had attempted to make a further withdrawal of $135.58 from his bank account on May 17, 2018, which payment was not processed as there were insufficient funds in his account. [ 23 ] Mr. Pollard deposed that he did not initially know what the withdrawals related to as he had not previously heard of Utilebill and there had never been prior withdrawals by them from his account. As a result of these transactions, Mr. Pollard checked his Manitoba Hydro bills and saw that there were no charges for filtration equipment or reference to an energy rebate.

He also deposed that the $500.00 rebate was never deposited to his bank account. A copy of Mr. Pollard’s bank records were filed as an exhibit to his affidavit and confirm the above. [ 24 ] Mr. Pollard then conducted online research with respect to Utilebill and as a result of those investigations he contacted Manitoba Hydro’s Corporate Security Department. He indicated that he was advised by the Manitoba Hydro representative he spoke with that Manitoba Hydro had no program affiliated with Prairie Home Comfort or Utilebill, and that he would not receive a rebate from them.

He deposed that the Manitoba Hydro representative advised that they were aware of this “scam”. [ 25 ] As a result of the above, Mr. Pollard sent a registered letter to both Utilebill and Prairie Home Comfort on May 24, 2018, advising that he would not be making payments under the Agreements which he believed were fraudulently misrepresented to him. He also advised that they could remove the equipment from his property if they wished to do so. It was his evidence that the letter addressed to Prairie Home Comfort was returned to him undelivered with the notation “Moved/Unknown”.

He did not receive a response to his letter sent to Utilebill. [ 26 ] Subsequently Mr. Pollard received letters from Utilebill in May and June, 2018 indicating that his accounts were past due and Statements showing arrears of $67.79 on each account. He also noted that Utilebill had attempted to make another withdrawal of $135.58 from his account on June 19, 2018. As a result of that attempt he changed his banking information and no further withdrawals have been attempted or made. [ 27 ] Further past-due notices and account Statements were received in July 2018 for $135.58. In December 2019, Mr.

Pollard received two Collection Notices from National Credit Recovery Inc. for the amount of $8,082.92 each. He affirmed that he may have received other Collection Notices. [ 28 ] In May 2020, Mr. Pollard learned that Utilebill had registered a Personal Property Security Notice against title to his property. As a result, he retained legal counsel who was successful in having the registrations removed when Utilebill failed to take any action in response to a demand to remove the registrations pursuant to The Personal Property Security Act , R.S.M. 1987, c. P35 . Mr.

Pollard incurred legal costs of $1,769.07 to have the lien removed from his property. [ 29 ] On May 12, 2021, Mr. Pollard was served with the Statement of Claim that commenced these proceedings seeking payment of $16,134.02 which the Plaintiff claims is due and owing under the two Agreements. [ 30 ] Mr. Pollard has made no voluntary payments on either account. [ 31 ] The two filters remain at Mr. Pollard’s property although he hired a plumber to have them uninstalled in December 2021. He incurred the cost of $204.38 for this service.

He has not been contacted by anyone in response to his offer to return the equipment. [ 32 ] Mr. Pollard has never received any rebate and affirms that he did not notice any savings on his energy bills when the equipment was in place. Copies of his Manitoba Hydro Statements for the periods of March to May 2017, 2018 and 2019 were filed as exhibits to Mr. Pollard’s affidavit and show that billing amounts are higher in 2018 and 2019 than they had been in 2017 for the same period. [ 33 ] Mr.

Pollard states that he signed the equipment rental agreements with Utilebill based upon his reliance on the representations made to him, and in particular, that he would receive a $500.00 rebate from Manitoba Hydro and long-term cost savings on his future energy bills. [ 34 ] He confirms that he did not read the fine print terms of either agreement, but rather trusted the representations made by the salesperson and the telephone representative as to the content of the Agreements.

Further, he deposed that having the salesperson and his assistants present in his home and waiting for him to sign left him feeling rushed and pressured.

[ 35 ] It was Mr. Pollard’s evidence that he would not have agreed to rent the filters or sign the contracts if he had been aware that he would not receive the rebate or energy cost savings. He did not seek out or require new water or air filters for his property. [ 36 ] John Nassar swore an affidavit on October 14, 2022 as President of Utilebill. [ 37 ] The content of Mr. Nassar’s affidavit is largely argumentative and very short on facts.

In his affidavit he denies all allegations of fraud or misrepresentation by Utilebill, or any representative of Utilebill, and puts the Defendant “…to the strictest proof thereof”. [ 38 ] Mr. Nassar did not purport in his affidavit to have ever spoken to, or met with, Mr. Pollard and he did not provide any hearsay evidence for which the source and his belief in the truth of the information is stated as required by Rule 39.01(4) of the Court of King’s Bench Rules , M.R. 553/88 . [ 39 ] Mr. Nassar’s affidavit does not disclose any specifics of who attended to Mr.

Pollard’s home to sell the filters, or any evidence with respect to what discussion occurred to result in the sale. He does not disclose any information about who the Utilebill (or Prairie Home Comfort) representative on the verification phone call was, or provide any direct, or even hearsay, evidence with respect to the portions of the phone recording that Mr. Pollard affirmed were missing from the recording. Mr. Nassar’s affidavit contains largely general denials of all allegations contained in Mr. Pollard’s affidavit. [ 40 ] With respect to Mr.

Pollard’s evidence that the phone call started with an introduction by the caller as a representative of Manitoba Hydro and a confirmation of the rebate program, Mr.

Nassar states that the recording does not omit the introduction of the parties as the representative started the call with “Can I get you to confirm your first and last name for me, please”, to which the Defendant replied by saying and spelling his name (affidavit of John Nassar, sworn October 14, 2022 at para.13). [ 41 ] The Plaintiff’s evidence also argues that the Defendant could have availed himself of the 10-day cooling off period prior to providing his banking information. [ 42 ] Mr.

Nassar alleges that the withdrawals made from the Defendant’s bank account were legitimate withdrawals of lease payments for a HEPA filter and water filter pursuant to the Agreements, and that the lack of sufficient funds in the Defendant’s account to cover the payments constitutes a breach of contract. [ 43 ] The affidavit material filed by the Plaintiff also does not address the issue of the purpose or efficacy of the equipment installed on the Defendant’s premises or Mr.

Pollard’s allegations that they were represented to result in cost savings. [ 44 ] While the Plaintiff denies all allegations made by the Defendant, the evidence presented by the Plaintiff on the

Summary Judgment Motion did not specifically respond to Mr. Pollard’s allegations that there were representations made to him that Prairie Home Comfort was affiliated with Manitoba Hydro, that the proposal was a cost savings program being offered in conjunction with Manitoba Hydro, that Mr. Pollard would receive a $500.00 rebate, that the monthly payments would be included on Mr. Pollard’s monthly Manitoba Hydro bill, and that the cost of leasing the equipment would be offset by future energy savings. [ 45 ] Mr.

Nassar, without citing a source for his information, states as a fact that “…the defendant had enough time to study the lease agreements relating to a water and air filter…” and that “…there was no representation to the Defendant that a representative from Manitoba Hydro would call the Defendant…” (Nassar affidavit at paras. 5 and 9). [ 46 ] He also swears that the Defendant was “…neither forced, coerced, unduly influenced to sign the Agreements…” (Nassar affidavit at para. 8). [ 47 ] Mr.

Nassar stated, and his counsel argued, that because there is no mention of Manitoba Hydro in the telephone recording, that constitutes proof that no representation of any affiliation or rebate program was ever made. He further argued that Mr. Pollard’s failure to ask for confirmation of any Manitoba Hydro affiliation or rebate renders his evidence incredible. [ 48 ] In seeming contradiction to the above statements, however, Mr.

Nasser also states in his affidavit at para. 9 that the telephone recording proves that “…the Defendant was advised by the agent of the Plaintiff that the Plaintiff is in no way affiliated to or in a partnership with Manitoba Hydro, which the Defendant verbally confirmed and agreed to”. His affidavit at paras. 12 and 13 also states that Mr. Pollard was assured in Exhibit A (referring to the telephone recording) that the Plaintiff was in no way affiliated with Manitoba Hydro. [ 49 ] The Plaintiff provided no evidence as to what representations or information were provided to Mr.

Pollard to induce him to enter into the contracts to lease their equipment. There was no explanation for what benefit was offered or represented to Mr. Pollard with respect to the filters in exchange for his monthly payments. The Issues [ 50 ] The issues to be determined are: (

a) should the issues before the Court be determined by

summary judgment? (

b) should

summary judgment dismissing the Plaintiff’s claim be granted? (

c) if the Agreements are not valid should they be declared void ab initio and is Mr. Pollard entitled to return of payments made thereunder? (

d) is Mr. Pollard entitled to damages? and (

e) costs.

Analysis

Summary Judgment [ 51 ] The procedural framework for a motion for

summary judgment is set out in the Manitoba Court of Queen’s Bench Rules , (as it was then), Man. Reg. 553/88 , as amended by Man. Reg. 130/2017, as follows: Granting

summary judgment 20.07(1) The judge must grant

summary judgment if he or she is satisfied that there is no genuine issue requiring a trial with respect to a claim or defence. Powers of judge 20.07(2) When making a determination under subrule (1), the judge must consider the evidence submitted by the parties and he or she may exercise any of the following powers in order to determine if there is a genuine issue requiring a trial: (

a) weighing the evidence; (

b) evaluating the credibility of a deponent; (

c) drawing any reasonable inference from the evidence; unless it is in the interests of justice for these powers to be exercised only at trial. [ 52 ] The Manitoba Court of Appeal considered these provisions in DOCFS and stated that, while at all times, the persuasive burden of proof on a balance of probabilities remains with the moving party, the evidentiary onus is as follows: (

a) first, the moving party must establish on the evidence and other material before the court, that at the motion for

summary judgment, there can be a fair and just determination of the case on its merits (at para. 108); (

b) if established, the responding party must establish on the evidence and other material, why a trial is required (at para. 109); and (

c) the responding party cannot rest on the mere allegations or denials in the pleadings, but must set out, in affidavit material or other evidence, specific facts showing there is a genuine issue for trial (at para. 101). [ 53 ] The Manitoba Court of Appeal also reiterated with approval the statement of the Supreme Court of Canada in Canada (Attorney General) v. Lameman , 2008 SCC 14 , that “[e]ach side must ‘put its best foot forward’ with respect to the existence or non-existence of material issues to be tried” ( DOCFS at para. 75 ). [ 54 ] This matter was commenced by Statement of Claim April 29, 2021.

It was pre-tried on three occasions prior to this hearing. During those Pre-Trial Conferences, which were heard by me as the assigned trial or

summary judgment judge, the issue of the appropriateness of proceeding by

summary judgment was canvassed and considered. Based upon those discussions and my assessment of the issues and anticipated evidence the matter was set down for a

Summary Judgment Hearing and filing deadlines were set for materials. Both parties filed affidavit materials and the Defendant filed a legal brief. [ 55 ] Having reviewed the affidavit evidence filed, the evidence presented at the hearing in the form of the telephone recording, and having considered the submissions of counsel for the parties, I have determined that the issues before the Court can appropriately be decided by way of

summary judgment. [ 56 ] The affidavit evidence filed on behalf of the Defendant was thorough and likely would not be enhanced or changed materially at trial. [ 57 ] The evidence of the Plaintiff was not thorough, detailed, or, in many respects, responsive to the evidence of the Defendant. However, there was no indication at the hearing that the evidence would be any better at trial. There was no evidence as to who the specific representatives for the Plaintiff who dealt directly with this transaction were, or why their evidence was not provided, or available, for the

Summary Judgment Hearing. There was no suggestion in the materials or submissions of counsel that further, or more specific, evidence would be available at a later date. [ 58 ] With respect to assessing the credibility and reliability of the evidence, this is not a situation where the Court was presented with

two competing versions of events and facts, in which case hearing viva voce evidence from the individuals involved may have assisted in assessing the credibility of those versions. [ 59 ] Rather, the evidence of the Defendant was generally denied, but no contradictory or other evidence, other than the phone recording, was presented by the Plaintiff. That recording was heard and considered on

summary judgment and would not by itself be more probative at trial. [ 60 ] The test at this stage is whether, in light of the evidence available to the Court at the

Summary Judgment Hearing, any issues arise which clearly require a trial for their determination.

This determination is based upon the expectation that both parties have put forward all of the material evidence available to them upon which the Court can either decide the matter, or determine that some, or all, of the issues require a trial involving viva voce , or other, evidence. [ 61 ] In this case, the Plaintiff effectively put forward almost no evidence relating to the issues raised in the pleadings and then argued that determination of the claims on the basis of the evidence before the Court would be premature. [ 62 ] The Plaintiff has attempted to rely upon bare denials and assertions in an affidavit that reads more like a pleading than evidence.

This is clearly not proper evidence on a

summary judgment application as set out in Court of King’s Bench Rule 20.02. [ 63 ] The Plaintiff has not met its onus on

summary judgment of putting its best foot forward with respect to evidence relating to the material issues before the Court. [ 64 ] In this case, considering the principles that govern the

summary judgment process including fairness, timeliness, affordability and proportionality, in light of the litigation as a whole, it is in my view most appropriate to have this matter determined on a final basis by way of

summary judgment. Validity of the Agreements [ 65 ] The Defendant argued that the Plaintiff’s claim should be dismissed and the Agreements declared void ab initio pursuant to both the The Business Practices Act , C.C.S.M. c. B120 , of Manitoba (the “ BPA ”), and the common law of fraudulent misrepresentation.

He also argued unconscionable transaction, which I will not address given my findings on the other two grounds. [ 66 ] As pointed out above, the affidavit material filed by the Plaintiff was largely hearsay for which no source was stated, improper argument, and was not responsive to the evidence of the Defendant. Further, Mr. Pollard was not cross-examined on his affidavit. As a result, the evidence of the Defendant is largely unchallenged and unrefuted. [ 67 ] The issue to determine is therefore whether, based upon the evidence of Mr.

Pollard, the Agreements between the parties should be declared void and the Plaintiff’s claim for breach of the contracts dismissed. [ 68 ] The Defendant alleges that he was induced to enter into the Agreements with the Plaintiff by fraudulent misrepresentations made by representatives of Utilebill. According to the evidence, Prairie Home Comfort, who the Defendant thought he was dealing with, is a division of Utilebill. The Plaintiff does not dispute that Utilebill was, at the time that the Agreements were entered into, carrying on business as Prairie Home Comfort. [ 69 ] Mr.

Pollard’s evidence was that he was told by a representative from Prairie Home Comfort that he was entering into Agreements with a company affiliated with Manitoba Hydro, and that he would receive a rebate and cost savings as a result of the contractual arrangement being proposed. I have no difficulty accepting Mr. Pollard’s evidence in this regard. [ 70 ] In addition to the fact that his evidence is effectively unchallenged, it is, in my view, consistent with a reasonable

interpretation of the totality of the evidence. [ 71 ] In addition to having no basis upon which to doubt the credibility of Mr. Pollard’s evidence, there is some additional evidence which I find to be consistent with, and therefore corroborative of, Mr. Pollard’s version of events. First, I note that rather than completing forms provided by Utilebill for debit of monthly fees from his account, Mr. Pollard provided banking information which referred to sufficient authority to “deposit” directly into his account.

This is consistent with his evidence that he understood that he was providing banking information to allow for deposit of a rebate into his account. [ 72 ] Also, contrary to the assertion by Mr. Nassar that the recording of the telephone conversation would have started with Mr. Pollard saying and spelling his name, common sense and experience would suggest that the telephone call would have started with some form of introduction as suggested by Mr. Pollard. Mr. Nassar’s refusal to acknowledge that there could have been any introductory discussion does not lend credibility to his position. [ 73 ] Further, Mr.

Nassar does not dispute that there are four different employees of Utilebill and/or Prairie Home Comfort whose evidence could potentially refute the evidence of Mr. Pollard, however, none of those individuals are identified, and no contradictory evidence is provided. The fact that evidence was not put forward from any of them, and no explanation was offered as to why not, leads me to infer that their evidence would not refute Mr. Pollard’s allegations. [ 74 ] And finally, I note information contained in a CBC story dated April 17, 2019, attached as Exhibit “W” to the affidavit of Mr.

Pollard, which indicates that Manitoba Hydro reported to CBC that they had at that time received approximately 200 complaints about Utilebill. While I have not attached any weight to media reports regarding other individual complaints on the basis that the fact that other complaints have been made is not probative of whether the allegations before the Court are true in this case, I do note that evidence that a

number of consumers have contacted Manitoba Hydro about Utilebill suggests that a number of consumers believe that there is a connection between the two entities. While I acknowledge that the content of the

article is double hearsay, and the source is generally considered reliable, I can only give it limited weight. None of the above outlined evidence is determinative of the issue, however, all of it taken together does corroborate Mr. Pollard’s evidence that he was told by representatives of Utilebill that they were affiliated with Manitoba Hydro. [ 75 ] The Defendant has established that representatives of Prairie Home Comfort, on behalf of Utilebill, attended to his home, unsolicited, and made representations to him which they knew to be false.

I further find that those representations were intended to deceive Mr. Pollard, and in so deceiving him induce him to enter into equipment leases at substantial cost. [ 76 ] In all of the circumstances, I find on a balance of probabilities that Mr. Pollard was induced through fraudulent misrepresentations into entering into the Agreements with Utilebill. I also find that there is no evidence before the Court that the equipment for which Mr.

Pollard was expected to pay monthly rental offered him any benefits in exchange for his expected payments. [ 77 ] The BPA defines and describes unfair business practices as follows:

Definitions 1 In this Act, … “unfair business practice” means an unfair business practice within the meaning of

section 2, 3 or 3.1. Deceiving or misleading 2(1) It is an unfair business practice for a supplier (

a) to do or say anything or to fail to do or say anything if, as a result, a consumer might reasonably be deceived or misled; or (

b) to make a false claim or representation. General impression 2(2) In determining whether anything is an unfair business practice within the meaning of subsection (1), the factors to be considered shall include the general impression given. Deemed unfair business practices 2(3) Without limiting the generality of subsection (1), any of the following representations, acts or omissions, when made or engaged in by a supplier in relation to goods or to a consumer transaction, is deemed for the purposes of this Act to be an unfair business practice within the meaning of that subsection: (

a) a representation that the goods have sponsorship, approval, performance characteristics, accessories, ingredients, components, quantities, uses or benefits that they do not have; (

b) a representation that the supplier has sponsorship, approval, status, affiliation or connection that the supplier does not have; … (

l) a representation that a price benefit or advantage exists with respect to the goods or with respect to the consumer transaction when it does not;

(

m) a representation that a solicitation of or any communication with a consumer is for a certain purpose or intent when it is not for that purpose or intent; … (

p) the use of exaggeration, innuendo or ambiguity as to a material fact, or the failure to disclose a material fact, with respect to the goods or with respect to the consumer transaction; … (

t) a false representation as to the purpose of a charge or proposed charge; … [ 78 ] The BPA prohibits unfair business practices in Manitoba, whether committed by a supplier or their employees (ss. 5, 6(1) and 6(2)). [ 79 ]

Section 23 of the BPA grants the Court broad powers to grant remedial relief as follows: Action by consumer 23(1) A consumer may commence a court action against a supplier for relief from an unfair business practice. Court order 23(2) Where the court finds in an action under subsection (1) that an unfair business practice has occurred, it may, subject to subsections (3) and (4), (

a) award damages for any loss suffered by the consumer; (

b) rescind the consumer transaction, if any; (

c) grant an injunction restraining the supplier from continuing the unfair business practice; (

d) order the supplier to repay all or part of any amount paid to the supplier by the consumer or relieve the consumer from the payment to the supplier of any amount or any further amount, as the case may be, in respect of the consumer transaction, if any; (

e) make an order of specific performance against the supplier; (

f) give such other directions and grant such other relief as the court deems proper. Factor to be considered

23(3) In determining whether to grant any relief under this

section and the nature and extent thereof, the court shall consider whether or not the consumer made a reasonable effort to minimize any damage resulting from the unfair business practice and to resolve the dispute with the supplier before commencing the court action.

Exemplary or punitive damages 23(4) A judgment under subsection (2) may include an award of exemplary or punitive damages against the supplier, except where the supplier took reasonable precautions and exercised due diligence to avoid the unfair business practice. [ 80 ] In my view, the deceptive practices used by Utilebill to induce the Defendant to enter into two contractual arrangements, to his detriment, are clear contraventions of ss. 2(3)(a),(b),(l),(m),(

p) and (

t) of the BPA . The conduct of Utilebill, Prairie Home Comfort, and their representatives and employees in this case, are the exact kind of practices that the BPA was enacted to protect against. They fall squarely within the definition of “unfair business practices” which this legislation is intended to address. [ 81 ] Therefore, pursuant to ss. 23(2)(

b) and (

d) I declare the Agreements entered into by Mr. Pollard void ab initio and order that the Defendant is entitled to repayment of the sum of $135.58 representing all payments made under the Agreements. [ 82 ] If I had not found this case to fall within the scope of the BPA I would have had no difficulty finding the Plaintiff liable at common law for fraudulent misrepresentation and the Defendant entitled to the same remedies. [ 83 ] Given the rescission of the contracts, the relief sought by the Plaintiff in their Statement of Claim is hereby dismissed in its entirety.

Is the Defendant/Plaintiff by Counterclaim Entitled to Damages? [ 84 ] In addition to rescission of the Agreements, the Defendant is seeking damages to compensate him for all costs incurred with respect to his involvement with Utilebill. He is also seeking punitive damages. [ 85 ] I find that the Defendant is entitled to damages pursuant to s. 23(2)(

a) of the BPA for legal costs relating to discharge of the Plaintiff’s lien in the amount of $1,769.07 and $204.38 in plumbing and heating fees for removal of the filters. [ 86 ] Punitive damages are also sought by the Defendant pursuant to both the BPA and as a result of the tortious conduct of the Plaintiff in this matter. [ 87 ] As earlier outlined, where the Court has found that a supplier has engaged in unfair business practices s. 23(4) of the BPA provides that a judgment may include an award of exemplary or punitive damages.

The common law of negligent misrepresentation similarly allows for such damages in appropriate cases. [ 88 ] A similar case proceeded to court in Ontario in Utilebill Credit Corp. v. Apex Home Services Inc. , 2021 ONSC 4633 . That case involved the in-home sale of equipment by Utilebill through an agent, Apex Home Services Inc. [ 89 ] In that case, on appeal to the Ontario Superior Court, the Judge found with respect to a similar verification call relied upon by Utilebill at trial, that the recording was not complete.

After listening to the recording, the Superior Court Justice stated that “…[t]here is no question that the recording does not begin at the start of the call…” (para. 27). The judge accepted the evidence of the consumer in that case that an earlier portion of the call, which was not on the recording, included her confirming a different agreement than what was contained in the written contract. [ 90 ] The appeal judge also stated that “…[l]ike the trial judge, I view it as completely unfair to suggest that the recording proves Ms.

Stevenson understood and agreed to the terms of the pre-printed form and simply had buyer’s remorse, as was suggested by Utilebill’s trial counsel.” (para. 31). [ 91 ] That same argument was made by Mr. Nassar in his affidavit material in this case. I find it equally unpersuasive. In my view, the use of a recording of a portion of a confirmatory telephone call was deliberate and was part of a pattern of conduct designed to mislead the consumer and create a false record of the transaction.

The only reasonable conclusion is that the telephone call was an attempt by Utilebill to obtain a record of the portions of the interaction with the consumer that are beneficial to their claim to a valid contract, while serving to distance itself from any allegations of a representation that they are affiliated with a reputable service provider. [ 92 ] In this case, the Defendant was induced to enter into two Agreements for which he was to make monthly payments totaling thousands of dollars for equipment that, the uncontroverted evidence suggests, provided no appreciable benefit to him. [ 93 ] I find that the actions of Utilebill in inducing the Defendant into contractual arrangements which were intentionally misrepresented to him, and then pursuing collection under those Agreements through unauthorized bank debits, a property lien, collection agencies and the courts, is conduct that is oppressive, dishonest and egregious, and as such punitive damages are appropriate. [ 94 ] The Plaintiff’s motivation appears to be purely financial with no regard to the hardship the consumer will suffer.

[ 95 ] I note that in Apex , although the facts were somewhat different, the conduct of Utilebill was considered sufficiently deceptive to warrant punitive damages of $10,000.00. [ 96 ] In this case, I find that exemplary damages of $10,000.00 are also appropriate as a condemnation of these kinds of unfair business practices and a deterrent to Utilebill and other businesses from engaging in such practices. [ 97 ] This award is made pursuant to s. 23(4) of the BPA , however, I would have had no hesitation awarding the same damages under the common law of fraudulent misrepresentation.

Costs [ 98 ] The Defendant in this case is seeking solicitor-client costs. Given the conduct of the Plaintiff in this matter, including putting the Defendant to the cost of a contested

Summary Judgment Hearing at which almost no evidence was presented to support the Plaintiff’s position, costs on a solicitor-client basis are warranted. [ 99 ] The Defendant should provide a proposed order reflecting the terms of this Judgment and a Bill of Costs on a solicitor-client basis to counsel for the Plaintiff. If the form of order or costs cannot be agreed upon written submissions may be filed for my consideration. Conclusion [ 100 ] The Defendant is entitled to judgment against Utilebill as follows: (

a) the Plaintiff’s claims are dismissed; (

b) the Agreements dated March 23, 2018 are void ab initio and Utilebill shall re-pay the Defendant the sum of $135.58; (

c) Utilebill shall pay special and punitive damages to the Defendant in the sum of $11,973.45; (

d) this judgment shall bear pre-judgment interest at the Court of Queen’s Bench rate from the date of the claim to the date of judgment; (

e) the judgment shall bear post-judgment interest at the Court of King’s Bench rate from the date of judgment; and (

f) costs to the Defendant on a solicitor-client basis. ____________________________ J.