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April 30, 2015
By Celia Sankar
The legal battle with Bell over its practice of seizing prepaid wireless customers' pay-per-use balances on so-called expiry dates continues.
This week, lawyers representing consumers filed arguments with the Court of Appeal of Ontario asking for the reversal of the decision of a judge who ruled that Bell's practices were legal.
The case is a class action lawsuit involving some one million Bell Mobility prepaid-wireless, pay-per-use customers in Ontario (of which I am the representative plaintiff).
Our lawyers argued that Justice Edward Belobaba, who decided on the matter in the lower court in February, got many important facts wrong, and did not interpret the law correctly.
As you would recall, this legal dispute arose because Bell advertises that customers can add funds to a prepaid wireless account in order to make calls, send texts, download games, apps, etc on a pay-per-use basis. However, Bell assigns a date to the balance of these accounts by which customers must add more funds or lose the money when Bell seizes it by claiming the funds "expired".
The judge in the lower court had determined that even though Bell sets an "expiry date" for consumer account balances and communicates these dates to customers (via its website and via customers' cellphones) customers do not take this to be the expiry date.
Class counsel pointed out that the judge had been presented with evidence in which consumers stated we understood "expiry date" to mean exactly the date that Bell told us (on our cellphone and at the Bell website) that our balance would expire.
The lawyers representing us are also arguing that Bell's practice of applying expiry dates on prepaid wireless, pay-per-use balances is illegal under Ontario legislation that protects consumers from losing the funds on their gift cards.
Ontario's laws state that if you prepay in order to later select from a variety of goods or services and you are issued a gift card (which can be in the form of a voucher or electronic credits), the merchant cannot tell you that you must make purchases before a certain date or lose your funds.
Justice Belobaba said that prepaid wireless, pay-per-use customers could not be protected under this law because they prepay for only one service, namely "access to Bell's network".
Our lawyers said the judge got his facts wrong.
They pointed out that Bell never offered customers a single service defined as "access to Bell's network". In fact, they argued, the judge had evidence in the form of Bell's contracts which demonstrated that Bell stated customers could purchase the following in whatever combination or quantity desired: voice airtime, data usage, 911 services, voicemail, call display, long distance, roaming, text, picture, video or other messaging, content, downloads, applications, streaming, browser usage, and internet access.
In other words, Bell's prepaid wireless, pay-per-use customers prepay in order to later select from a variety of goods or service, and, therefore, the electronic credits in customers' accounts qualify for protection under the gift card regulation.
Finally, our lawyers also asked the Appeal Court to reverse the learned judge's finding that prepaid wireless, pay-per-use "top-ups" (the means of adding funds to one's account) could not qualify for protection under the gift card regulation because prepaid wireless top-ups are not gifts.
Class counsel pointed out, firstly, that the judge had no evidence that customers do not acquire top-ups for others as gifts; and secondly, they submitted that is quite conceivable that consumers do acquire top-ups as gifts, such as a parent using a credit card to top up a son's or daughter's cell phone balance.
More significantly, our lawyers argued that by stating a gift card had to be a gift in order to be protected by the consumer protection laws, Justice Belobaba interpreted the regulation in a way that would render it useless.
The judge's decision results in the ridiculous situation that if you bought a hardware or restaurant gift card for a friend, the supplier is banned from placing an expiry on it, but if you bought the same gift card for yourself, the supplier could legally put an expiry date on it.
In order to correct this and several other errors, our lawyers argued, the lower court's decision must be overturned. (See the full arguments here.)
The hearing of the appeal is likely to be scheduled for the fall. That means the decision can come either by the end of the year or early in 2016.