Why didn't Telecommunications Act 1993, s. 72(3), bar David Ramsay's claim against Bell Canada?

Question

CBC linked to the transcript for David Ramsay v BCE Inc. (Bell Canada Enterprises Inc.). Deputy Judge William C. De Lucia found "that the defendant is liable to the plaintiff, that the defendant has breached the terms of the contract by introducing and imposing price changes via its invoices and I find that the terms of condition do not alter the original contract which is in effect".

But why wasn’t David Ramsay v BCE Inc. bound by B & W Entertainment Inc v Telus Communications Inc (2004) – see below?

Why didn’t s. 72(3) except David Ramsay v BCE Inc.?

Why did s. 72(3) except these cases below?

Wilson v. Telus Communications Inc., 2019 FC 276 (CanLII), para 23.

[23] Subsection 72(3) of the Telecommunications Act provides an exception, where the action is for “breach of a contract to provide telecommunications services.” This provision was specifically dealt with by the Court in B & W Entertainment Inc v Telus Communications 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 of any 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 telecommunications services...

This is a clear expression by Parliament that disputes involving contracts to provide telecommunications services should be resolved by the CRTC and not by the courts.

Dell v. Bell Mobility Inc., 2023 BCCRT 330 (CanLII), at para 19.

19. Multiple CRT decisions have noted that the federal court has interpreted section 72(3) of the Telecommunications Act as saying that disputes involving telecommunications services contracts should be resolved by the CRTC and not the courts. These decisions also accordingly conclude that, although the CRT is not a court, the CRT does not have jurisdiction over claims about telecommunications services contracts. See, for example, Hafizi citing Wilson v. Telus Communications Inc., 2019 FC 276 at paragraph 17, Mekies v. Fido Solutions Inc., 2020 BCCRT 176, and Tang v. Rogers Communications Canada Inc., 2020 BCCRT 1408.

Answer 1

Technically, it’s not a breach of contract claim

It’s a restitution claim.

Both parties are fully in compliance with the terms of the contract - Bell provided the services, and David has paid the invoices. No one has breached anything.

However, David has paid more than the contract provided and is entitled to recover that overpayment. I don’t know what the actual pleadings were and what the judge was thinking about the exact legal basis, but small claims courts are generally not too hung up on technicalities. They don’t set precedent so no one is going to appeal a sub $1,000 judgement.

Also, I don’t know the details of the act but it’s likely that the courts are not excluded entirely, just that you have to go to the CRT first. In this case, the CRT declined to act, that almost certainly opens the door for judicial review.