LEXPERT MAGAZINE
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JULY 2019 11
Molson Canada 2005 was McCarthy Té-
trault LLP, with a team including Paul
Steep, Adam Ship, and Katherine Booth.
Counsel for the intervener Attorney
General of Ontario was Michael S. Dunn
and Ravi Amarnath.
DIRECTOR OF CRIMINAL
AND PENAL PROSECUTIONS V.
TELUS COMMUNICATIONS INC.
AND DIRECTOR OF CRIMINAL
AND PENAL PROSECUTIONS V.
BELL CANADA
DECISION DATE: APRIL 12, 2019
Two recent Court of Québec decisions
found newly enacted provisions of the
Québec Consumer Protection Act to be con-
stitutionally inapplicable and inoperative
for telecommunications services providers
facing charges of penal offences.
On June 30, 2010, An Act to amend the
Consumer Protection Act and other legisla-
tive provisions, S.Q. 2009, c. 51, added nu-
merous new provisions to Québec's Con-
sumer Protection Act ("CPA"). In the wake
of these provisions coming into force, Qué-
bec's Office de la protection du consomma-
teur instituted hundreds of penal infrac-
tions against Telus Communications Inc.
and Bell Canada, claiming that their terms
and conditions of service were contrary to
several sections of the CPA. Any person
who purportedly contravenes the CPA can
be prosecuted under its penal provisions.
Sections 11.2 and 11.3 of the CPA re-
spectively prohibit certain contractual
stipulations pertaining to the unilateral
modification or cancellation of a contract,
while s. 13 prohibits to impose charges,
penalties or damages upon the non-per-
formance of an obligation. Sections 214.1
to 214.11 dictate that a "contract involv-
ing sequential performance for a service
provided at a distance" must contain and
establish various limitations in the perfor-
mance of any such contract.
e defendants, relying on ss. 91 and 92 of
the Constitution Act, 1867 and Parliament's
exclusive jurisdiction over telecommunica-
tions, challenged the CPA provisions in
dispute at trial as being ultra vires of the
provincial legislature as intended to regulate
telecommunications service providers. In
the alternative, the defendants sought that
the CPA provisions in dispute be declared
inapplicable and inoperative through the
application of the doctrines of interjurisdic-
tional immunity and federal paramountcy.
Given the importance of the issues in
dispute and the specificities of these penal
prosecutions, the court found that it would
be inadvisable to interpret the provisions of
the CPA at issue without first ensuring that
they apply to the defendants from a consti-
tutional standpoint. Under sections 92(10)
(a) and 91(29) of the Constitution Act, 1867,
Parliament has exclusive jurisdiction over
telecommunications. e Telecommunica-
tions Act offers the main legislative frame-
work applicable to telecommunications
undertakings, in addition to the broad
regulatory and adjudicative jurisdictions
it extends to the CRTC in relation, inter
alia, to the conditions of the provision of
telecommunications services.
Conversely, the CPA seeks to restore
contractual equilibrium between mer-
chants and consumers by prohibiting
certain commercial practices considered
deceptive, and regulating certain aspects
of their contractual relations. Historically,
telecommunications contracts were specifi-
cally excluded from the ambit of the CPA,
as the Supreme Court of Canada ruled in
Alberta Government Telephones v. Canada
(C.R.T.C), [1989] 2 S.C.R. 225 and in Té-
léphone Guèvrement v. Québec (Régie des
télécommunications), [1994] 1 S.C.R. 878
that such contracts were outside a provin-
cial legislature's purview.
e court came to the conclusion that
the CPA provisions in dispute, while
broadly draed, were enacted for the in-
tent and purpose of regulating the tele-
communications industry, and dictate the
conditions for the commercialization of
telecommunications for Québec to enact
its own contractual standards and require-
ments for such services. As a result, the
court found that the National Assembly
was directly regulating the content of fed-
eral jurisdiction over telecommunications
with the CPA provisions in dispute.
Unlike a Superior Court, the Court of
Québec has only a subject-matter and no
inherent jurisdiction; it thus lacks jurisdic-
tion to declare that a legislative provision is
invalid by virtue of section 52 of the Consti-
tution Act, 1982.
In that context, the Court of Québec
considered it unnecessary to rule on the
validity of the CPA provisions in dispute,
having regard to their pith and substance
to determine if they were ultra vires of the
provincial legislature, and exercised judicial
restraint in that regard. However, the court
may rule on the constitutionality of a legis-
lative provision in the course of exercising
its jurisdiction over a penal matter.
Applying the interjurisdictional
immunity doctrine, the court found that
the CPA provisions are intruding on the
core of Parliament's jurisdiction over
telecommunications, which includes the
conditions for the commercialization of
telecommunications services. e Court
concluded that the CPA provisions were
constitutionally inapplicable in relation to
the offences. As for the federal paramount-
cy doctrine, the Court found that the CPA
provisions were frustrating the purpose of
the federal legislative scheme and the na-
tional telecommunications policy, notably
by regulating rates, the provision of services
and the conditions of commercialization of
telecommunications services.
As a result, the court concluded that
the CPA provisions were constitutionally
inoperative in relation to the offences, and
it acquitted the defendants of all charges
against them.
On May 10, 2019, the Director of Crim-
inal and Penal Prosecutions and the Attor-
ney General of Québec filed an appeal of
the judgments.
Telus Communications Inc. was repre-
sented by Yves Martineau and Marjorie
Bouchard of Stikeman Elliott LLP, and
Mathieu Quenneville and Samuel Bachand
of Prévost Fortin D'Aoust LLP (on con-
stitutional questions), with the assistance
of in-house counsel Delbie Desharnais.
Bell Canada was represented by Vin-
cent de l'Étoile of Langlois Lawyers LLP,
with the assistance of in-house counsel
Mélissa Beaudry.
e Director of Criminal and Penal Pros-
ecutions was represented by Simon Lajoie.
e Attorney General of Québec was
represented by Charles Gravel of Bernard
Roy (Justice Québec).