“common law breach of contract claim” vs. “a breach of contract claim that s. 72 (3) of the Act precludes from being a statutory cause of action”

Question

How can I take the hints from

• this answer and
• Perell J. in Nelson v. Telus Communications Inc. (Part 2), 2021 ONSC 23 (CanLII), [49]–[50]?

Without hiring a lawyer, how can a layman determine ALL “common law breach of contract claim[s]” — not just the “breach of contract claim” in Anderson below — that isn’t “breach of contract claim that s. 72 (3) of the Act precludes from being a statutory cause of action” ?

[49] Instead of relying on the statutory claim, had Ms. Nelson foregone the statutory claim, she could have done what the Representative Plaintiff did in Anderson v. Bell[13] which was to advance a breach of contract claim and then she could resist Telus’ reliance on the no-refund provision in the contract as illegal precisely because it was contrary to the Telecommunications Act. In Anderson, consumers in the North West Territories were charged for a 911 service that was not actually available. The action was certified as a breach of contract claim and the Representative Plaintiff was successful at the common issue trial, and the judgment was affirmed on appeal.

[50] In any event, I conclude that Ms. Nelson does not have a claim under s. 72 (1) of the Telecommunications Act because her claim is in substance a breach of contract claim that s. 72 (3) of the Act precludes from being a statutory cause of action. Section 72 (3) does not preclude a common law breach of contract claim, but Ms. Nelson has not brought such a claim.

Answer 1

There are two possible legal theories in this situation.

One is the someone violated the Telecommunications Act and that the person harmed is entitled to the remedies for that violation of the Act that it sets forth. For example, the Telecommunications Act probably prohibits telecommunications companies from broadcasting signals on wavelengths that they don't have a license to use.

In this case, it sounds like the Telecommunications Act prohibits a telecommunications company from drafting a "no refunds" contract with a customer. But, an illegal contract term is only valid if the telecommunications company breached the contract in a way that entitles you to a refund.

The second legal theory is that a telecommunications company and a customer entered into a contract, and that the company breached the contract, and that the customer is entitled to damages equal to the lost economic value of the benefit of that contractual bargain. This legal theory for a lawsuit is established by case law decisions and not by any statute. So, it is called a "common law" legal theory.

Ms. Nelson brought a lawsuit based upon the first legal theory, but not on the second legal theory.

The Court held that Ms. Nelson's lawsuit based upon the first legal theory must be dismissed because the telecommunications company didn't do anything that the Telecommunications Act prohibits that she is entitled to sue over.

The Court acknowledges that the telecommunications company may have breached its contract with Ms. Nelson and that Ms. Nelson could have brought a lawsuit based upon that legal theory (although in reality, she didn't do that). But the Telecommunications Act specifically says that you can't bring lawsuits based upon the Telecommunications Act just because a telecommunications company breached a contract with you. So, Ms. Nelson's entire lawsuit is dismissed.

Without hiring a lawyer, how can a layman determine ALL “common law breach of contract claim[s]” — not just the “breach of contract claim” in Anderson below — that isn’t “breach of contract claim that s. 72 (3) of the Act precludes from being a statutory cause of action”?

It is likely that a layman is incapable of doing this. So, it pays to hire a lawyer. Nothing in the law guarantees that it is user friendly.