May 08, 2017
Giroux, Schrager, Parent
Appeal from a judgment of the Superior Court granting in part a class action claiming an amount of money, moral and punitive damages. Allowed in part.
The judgment a quo granted the class action arising from Videotron’s decision to unilaterally modify the conditions of its Extreme High Speed Internet plan (EHSI). Videotron was ordered to pay members of the class various amounts as contractual remedies, compensatory and punitive damages. On appeal, Videotron disputed all the conclusions of the judgment. For their part, the respondents brought an incidental appeal seeking an increase of some of the damages awarded.
The trial judge did not err in concluding that Videotron had violated sections 12 and 40 of the Consumer Protection Act (CQLR, c. P-40.1). The unilateral modification clause did not authorise Videotron to impose fees that had not been agreed to in the initial contract or tomodify the goods and services described therein. It cannot be set up against the members of the class because it entails the waiver of the rights conferred by sections 12 and 40 of the Act, which is prohibited under sections 261 and 262. In a contractual relationship, the breach of an obligation set out in the Consumer Protection Act triggers the application of an absolute presumption of injury to the consumer (Richard v. Time Inc. (S.C. Can., 2012-02-28), 2012 SCC 8, SOQUIJ AZ-50834275, 2012 EXP-836, J.E. 2012-469,  1 S.C.R. 265). If consumers wish to claim compensatory damages under ordinary law, they must prove them and establish the causal connection with the breach. In this case, the evidence does not ground a conclusion, either direct or presumed, of the existence of a likely causal connection between the modifications brought by Videotron to the EHSI plan and the decision by members of the B subclass to cancel their contracts (those who cancelled their contracts before term, but after the modifications came into force). With respect to these members, the judge erroneously applied the absolute presumption of injury. Damages for the loss of the multiservice discount and the benefit received from the plan could not be awarded. The judge was right to condemn Videotron to pay punitive damages to the members who subscribed to the EHSI plan starting on June 28, 2007, without having been informed of the decision to limit bandwidth access. The judge also did not err in refusing to put a time limit on membership in the class or awarding punitive damages to the members of the A, B, C, and D subclasses following the unilateral modification of the contract. There is reason to intervene, however, to award the additional indemnity on the reimbursement of taxes paid by members of the A subclass.
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