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As clear as mud
December 04, 2015
By Celia Sankar
Appeal of Bell Mobility Class Action: Part I
“The case was about if, how, and when Bell was entitled to confiscate money from its prepaid wireless customers, Louis Sokolov said.
In a Toronto appeal court, two Mondays ago, Sokolov, lead counsel representing over a million of us (prepaid customers of Bell’s three wireless brands: Bell Mobility, Virgin Mobile Canada, and Solo Mobile), argued that a lower court judge made several errors when he decided that Bell had done no wrong in seizing our funds in the manner that it did.
Sokolov told Ontario Chief Justice George Strathy, Justice Harry S. LaForme, and Justice Grant Huscroft that Bell’s confiscation practices were “fundamentally unfair, and illegal” and affected the most cost-sensitive customers.
The lower court judge, Justice Edward Belobaba, made an error when he failed to look at all the wording of the contract under which Bell claimed it was entitled to seize customers’ funds, Sokolov said.
(While we may think of prepaid wireless services as not having a contract because we don’t sign a piece of paper as people who agree to a two-year contract do, the court views Bell’s terms of service, ie “the fine print” for its prepaid wireless services, as a contract between Bell and its prepaid wireless customers.)
Our lawyer told the court that the judge ignored parts of the actual prepaid cards as well as the receipts for the prepaid wireless top-ups where Bell said that if customers wanted to see the balance expiry date, we would have to check our account online or on our phone, or call Bell’s customer service in 48 hours.
These expiry dates assigned by Bell are “the most meaningful expiry dates in this court case and it made no sense for the judge to have ignored them, Sokolov said.
Instead of giving proper weight to that line in the contract, the judge wrongly accepted Bell’s claim that the words “expiry date meant something else entirely, our lawyer said.
Let me interject here and say that, for me, what Bell argues that “expiry date means is totally confusing. I have to confess that even as the lead plaintiff representing all of Bell’s prepaid wireless customers, and even after having read hundreds of pages of the court documents, I can hardly wrap my brain around Bell’s argument. But I'll try my best to explain it.
Bell had told the lower court judge that on its brochures, website, prepaid cards, and receipts, it tells customers that there is an “active period during which we can use wireless services, and that the active period varies in length according to the value of the top-up (eg a $15 top-up allows for a 30-day active period).
The lower court judge accepted Bell’s argument about the significance of this when he wrote: “...using the 30-day archetype, I find that...subscribers understood that the top-up agreement and any unused funds would expire at the end of the active period (i.e. at the end of Day 30) and would be forfeited and seized the next day (i.e. Day 31).
Did you get that? The judge said we understood that the “expiry date was not the date on which funds would expire.
Instead, we accepted that
1) our funds would expire the day before the expiry date that Bell assigned to us 48 hours after we topped up; and that
2) our funds would be seized on the expiry date that Bell assigned to us 48 hours after we topped up.
So is it all clear now what we understood the expiry date to mean?
The lower court judge also said that I, Celia Sankar, told the CRTC (the Canadian Radio-television and Telecommunications Commission) that I also had this understanding when I sent a written complaint (see pages 17 and 18) against Bell to the telecommunications watchdog.
At the appeal court, two Mondays ago, our lawyer said that Justice Belobaba had before him – and ignored – evidence in which customers said they believed the expiry date to be the date that Bell told us we should look out for in 48 hours after activating a top-up.
Additionally, Sokolov told the appeal court that, contrary to the lower court judge’s characterization of my statement to the CRTC, what I had written in fact demonstrated that my complaint to the watchdog was that Bell had created confusion by operating with what I described as two different expiry dates.
Our lawyer noted that in a previous (unrelated) decision, the court established a principle that when one party wants to rely on a contract to confiscate the other party’s money, “that contract must be not capable of any other meaning”.
“This is how you write these contracts, Sokolov said. You have to be clear about when you will confiscate customers’ money.
In the case of prepaid wireless services offered by Bell Mobility, Virgin Mobile Canada, and Solo Mobile, the contracts “don’t come anywhere near that clarity,” our lawyer said.
Part II coming soon