Date Issued: October 20, 2022

File: SC-2022-000819

Type: Small Claims

Civil Resolution Tribunal

Indexed as: Hafizi v. Telus Communications Inc., 2022 BCCRT 1146

Between:

AHMAD SHEKEB HAFIZI

Applicant

And:

TELUS COMMUNICATIONS INC.

Respondent

REASONS FOR DECISION
Tribunal Member:	Chad McCarthy

INTRODUCTION

1.      This dispute is about a mobile phone service agreement. The applicant, Ahmad Shekeb Hafizi, agreed to purchase 2 years of mobile phone services and 2 mobile phones from the respondent, Telus Communications Inc. (Telus). Mr. Hafizi says Telus provided substandard connectivity services, so the parties agreed he would return the phones for a refund and end the contract early. Mr. Hafizi says Telus instead cancelled the contract and demanded the full price of the phones immediately instead of through monthly payments.

2.      Mr. Hafizi claims $1,982.62 for the phone contract cancellation. He says his claim is to clear his personal credit and for compensation for mental and emotional damage. Telus says it provided adequate service, and Mr. Hafizi failed to make the agreed monthly payments and kept the phones. So, Telus says it was entitled to the amounts it charged Mr. Hafizi and owes no damages.

3.      Mr. Hafizi is self-represented in this dispute. Telus is represented by an authorized employee.

JURISDICTION AND PROCEDURE

4.      These are the formal reasons of the Civil Resolution Tribunal (CRT). The CRT has jurisdiction over small claims brought under section 118 of the Civil Resolution Tribunal Act (CRTA). Section 2 of the CRTA states that the CRT’s mandate is to provide dispute resolution services accessibly, quickly, economically, informally, and flexibly. In resolving disputes, the CRT must apply principles of law and fairness, and recognize any relationships between the dispute’s parties that will likely continue after the CRT process has ended.

5.      Section 39 of the CRTA says the CRT has discretion to decide the format of the hearing, including by writing, telephone, videoconferencing, email, or a combination of these. Here, I find that I am properly able to assess and weigh the documentary evidence and submissions before me. Further, bearing in mind the CRT’s mandate that includes proportionality and a speedy resolution of disputes, I find that an oral hearing is not necessary in the interests of justice.

6.      Section 42 of the CRTA says the CRT may accept as evidence information that it considers relevant, necessary, and appropriate, whether or not the information would be admissible in a court of law. The CRT may also ask questions of the parties and witnesses and inform itself in any other way it considers appropriate.

7.      Where permitted by section 118 of the CRTA, in resolving this dispute the CRT may order a party to do or stop doing something, pay money or make an order that includes any terms or conditions the CRT considers appropriate.

8.      Under CRTA section 10, the CRT must refuse to resolve a claim that it considers to be outside the CRT’s jurisdiction. A dispute that involves some issues that are outside the CRT’s jurisdiction may be amended to remove those issues. Further, under CRTA section 11(1)(e), the CRT may refuse to resolve a claim within its jurisdiction if satisfactory evidence establishes that it is beyond the CRT’s jurisdiction. Under CRTA section 11(1)(a)(i), the CRT may also refuse to resolve a claim or dispute within its jurisdiction if the claim or dispute would be more appropriate for another legally binding process or dispute resolution process.

9.      Mr. Hafizi says his claim is, in part, to “clear” his personal credit. Ordering someone to do or not do something is known as injunctive relief. This type of relief is outside the CRT’s small claims jurisdiction, except where permitted by CRTA section 118. I find that an order to “clear” Mr. Hafizi’s personal credit rating is not within the scope of section 118. So, to the extent that Mr. Hafizi’s claim is for an order to clear his credit rating, I decline to consider that remedy under CRTA section 10(1).

10.   With respect to Mr. Hafizi’s other claims, I found it necessary to determine whether the CRT had jurisdiction to decide them, and whether another legally binding or dispute resolution process was more appropriate. I found it was not necessary to seek further submissions from the parties on those issues. This is because even if the CRT had jurisdiction and was the most appropriate dispute resolution process, I would have dismissed those claims on their merits, as explained below.

ISSUES

11.   The issues in this dispute are:

a.    Whether I should refuse to resolve Mr. Hafizi’s claims.

b.    If not, whether Telus is liable for breaking the parties’ contract and causing mental and emotional distress, and if so, does it owe $1,982.62 in damages?

EVIDENCE AND ANALYSIS

12.   In a civil proceeding like this one, as the applicant Mr. Hafizi must prove his claim on a balance of probabilities, meaning “more likely than not.” I have read the parties’ submissions and evidence but refer only to the evidence and arguments I find relevant to provide context for my decision. Mr. Hafizi provided no reply submissions, despite having an opportunity to do so.

13.   In December 2020, Mr. Hafizi undisputedly agreed to purchase 2 years of mobile phone services and 2 mobile phones from Telus, by making monthly payments. Shortly after receiving the phones, Mr. Hafizi complained to Telus that the phones did not communicate properly, either as telephones or through the internet. I find customer service records and other evidence provided by Telus show that it received many complaints from Mr. Hafizi, and that it tested its infrastructure in the areas where he said service was poor. I find the evidence shows Telus reasonably determined that its wireless services were working properly in those areas, and proposed different solutions for Mr. Hafizi’s alleged communication problems.

14.   Telus says that Mr. Hafizi failed to make monthly payments as agreed in the contract, and as shown in submitted invoices. Telus also says Mr. Hafizi switched his mobile phone services for the 2 purchased phones to a different provider. Mr. Hafizi does not deny those statements, so I accept them as true. Telus says Mr. Hafizi cancelled the mobile phone service contract. Mr. Hafizi says Telus cancelled the contract, and agreed to accept the phones’ return and refund what he had paid. Mr. Hafizi says Telus did not contact him again, so he kept the phones.

15.   I find Mr. Hafizi’s claims are somewhat unclear, and are not fully explained in his submissions. Having said that, I find his $1,982.62 claim includes a request for Telus to refund unspecified amounts paid under the mobile phone services contract. I find his claim also includes a request for unspecified damages for mental and emotional distress.

16.   I find Mr. Hafizi’s claim and requested remedies involve the mobile phone service contract. The federal Telecommunications Act (TA) applies to telecommunications service providers such as Telus. TA section 72(1) says that a person may recover in court an amount equal to the loss or damage resulting from a person’s an act or omission that is contrary to the TA. However, TA section 72(3) says that 72(1) does not apply to an action for breach of a contract to provide telecommunications services or any action for damages in relation to a rate charged by a Canadian carrier.

17.   Although not binding on me, I find the reasoning in Mekies v. Fido Solutions Inc., 2020 BCCRT 176 and Tang v. Rogers Communications Canada Inc., 2020 BCCRT 1408 persuasive, and I adopt it here. In those decisions, the tribunal members noted that the federal court has interpreted TA section 72(3) as saying disputes involving telecommunications services contracts should be resolved by the Canadian Radio-television and Telecommunications Commission (CRTC) and not the courts: Wilson v. Telus Communications Inc., 2019 FC 276. An Ontario court made a similar finding in B & W Entertainment Inc. v. Telus Communications Inc., 2004 CanLII 35009 (ONSC).

18.   Although the CRT is not a court, I agree with Mekies and Tang that the non-binding reasoning in Wilson and B&W applies to the CRT. Specifically, I find that the CRT does not have jurisdiction over claims about telecommunications services contracts. I find that Mr. Hafizi’s request for a refund under the parties’ mobile phone service contract is a claim about a telecommunications services contract, so the CRT lacks jurisdiction over it. As a result, I refuse to resolve Mr. Hafizi’s claim for a refund under CRTA section 11(1)(e).

19.   Even if I am wrong and the CRT has jurisdiction over the refund request, I would still refuse to resolve it under section 11(1)(a)(i). This is because the CRTC provides a more appropriate legally binding process or dispute resolution process, namely the Commission for Complaints for Telecom-Television Services (CCTS), as follows.

20.   The CRTC requires telecommunications service providers within its mandate, such as Telus, to participate in the CCTS. The CCTS independently investigates and resolves complaints about compliance with contractual terms, billing disputes, service delivery, and credit management. The CCTS may require service providers to do or stop doing something, or to pay compensation up to $5,000, among other powers. Although both the CCTS and CRT may make binding orders, the CCTS specializes in telecommunications contracts and service delivery, which are governed by the federal TA. So, as in Mekies, I find the CCTS is a more appropriate forum to address complaints about telecommunications services. The parties did not say that they applied to the CCTS for dispute resolution, or that the CCTS refused such an application.

21.   Given my conclusions above, I make no findings about the merits of Mr. Hafizi’s claim, and whether the claimed damages of $1,982.62 are proven. This applies both to damages for the requested refund and damages for mental and emotional distress, both of which I find arise entirely from Telus’ alleged breach of the mobile services contract.

22.   Even if I concluded that the CRT had jurisdiction over Mr. Hafizi’s claim and his requested remedies, I would find it unproven on the evidence before me that Telus provided substandard services or owed a refund, or that Mr. Hafizi sustained damages from mental and emotional distress.

CRT Fees and Expenses

23.   Under section 49 of the CRTA, and the CRT rules, the CRT will generally order an unsuccessful party to reimburse a successful party for CRT fees and reasonable dispute-related expenses. Here, neither party made submissions on the jurisdictional issues that this dispute turned on, and neither party was successful. In the circumstances, I direct the CRT to refund Mr. Hafizi’s paid CRT fees. Telus paid no CRT fees, and neither party claimed CRT dispute-related expenses.

ORDER

24.   I refuse to resolve Mr. Hafizi’s request for credit rating repair under CRTA section 10(1). I refuse to resolve the remaining aspects of his claim under CRTA sections 11(1)(a)(i) and 11(1)(e).