Docket: CACV2459 Bell Mobility Inc. Prospective Appellant (Defendant) - v. -, 2013 SKCA 117

THE COURT OF APPEAL FOR SASKATCHEWAN Citation: 2013 SKCA 117 Date: 2013-11-04 Between: Docket: CACV2459 Bell Mobility Inc. Prospective Appellant (Defendant) - and - Colin Chatfield Prospective Respondent (Plaintiff) - and - Bell Aliant Regional Communications, Limited Partnership, Manitoba Telecom Services Inc., MTS Allstream Inc., AT&T Wireless Inc., Rogers Communications Inc., Rogers Wireless Alberta Inc., Rogers Wireless Partnership, Fido Solutions Inc., Saskatchewan Telecommunications (SaskTel), Saskatchewan Telecommunications Holding Corporation, TELE-MOBILE, TELUS Communications Inc., TELUS Corporation, TELUS Communications Company Defendants

Before: Richards C.J.S. (in Chambers) Counsel: Kathryn Podrebarac and Alan Melamud for the prospective appellant E.F. Anthony Merchant, Q.C. for the prospective respondent Application: From: 2013 SKQB 317 Heard: October 23, 2013 Disposition: Decision held in abeyance Written Reasons: November 4, 2013 By: The Honourable Chief Justice Richards Richards C.J.S. [ 1 ] This is an application for leave to appeal.

It arises out of a class action concerning the legal propriety of certain fees charged by various telephone companies. [ 2 ] Bell Mobility Inc., one of the defendant companies, seeks leave to appeal a decision of the case management judge. That decision dismissed Bell Mobility’s application to amend the class definition so as to exclude from the class all those individuals who paid the fees in question outside of applicable limitation periods.

Questions relating to discoverability lie at the heart of the decision of the case management judge and at the heart of the proposed appeal. [ 3 ] The proposed appeal is grounded in Mr. Chatfield’s pleadings as set out in the Second Amended Statement of Claim. Notably, the Second Amended Statement of Claim does not expressly plead issues of discoverability, misrepresentation or deceit. [ 4 ] However, Mr. Chatfield has applied to the case management judge for leave to amend the Second Amended Statement of Claim.

He seeks to plead that the defendant companies, including Bell Mobility, did not disclose the fees to the class members or misrepresented the nature of the fees so as to deceive class members and to prevent them from reasonably knowing that they were paying the fees but receiving nothing in return. Mr. Chatfield’s application has not yet been heard by the case management judge. Bell Mobility and the other defendants oppose it. [ 5 ] The concern that I have should be self-evident. The proposed appeal is based on the Second Amended Statement of Claim.

A significant delay and substantial waste of resources would result if I were to grant leave to appeal, and this Court were to allow Bell Mobility’s appeal, only to then have the race brought back to the starting line by an amendment to Mr. Chatfield’s pleadings which puts the issue of discoverability in play. None of this is to say, of course, that Bell Mobility’s proposed appeal would necessarily succeed or even that I have decided to grant leave.

My point is only that, even if Bell Mobility was successful, the parties could find that all had been for not if the proposed Third Amended Statement of Claim subsequently became the governing pleading. [ 6 ] In my view, the most efficient way for this Court and the case management judge to coordinate our efforts in these proceedings is for me to delay making a decision on Bell Mobility’s application for leave to appeal until after the case management judge has ruled on Mr. Chatfield’s application to amend the Second Amended Statement of Claim.

I am confident that neither the case management judge nor the parties want to continue on in a loop of decision-amendment-decision-more amendment if that can be avoided. [ 7 ] I assume that counsel will advise the Registrar when the decision of the case management judge concerning the Third Amended Statement of Claim is in hand. DATED at the City of Regina, in the Province of Saskatchewan, this 4th day of November, A.D. 2013. “Richards C.J.S.” Richards C.J.S.