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Our voices have been heard
December 11, 2015
By Celia Sankar
Appeal of Bell Mobility Class Action: Part II
Last week, I confessed that I couldn't understand Bell's argument – which the lower court had accepted – as to what we (prepaid wireless, pay-per-use customers) understood to be the “expiry date” in this class action lawsuit against Bell Mobility.
It was only after having written it down in that article, and re-reading it, and going over it in my mind all week that I understood the source of my confusion.
You see, I know that at the time that we paid for our prepaid wireless top-up and entered into the contract with Bell, we were told on the prepaid cards, and the receipts, and by the salespeople that the “expiry date” was a date that Bell would display on our phone, or at its website, or that we could call in and ask for within 48 hours of activating a top-up.
Because I know this definition of the term “expiry date” exists, I assumed that the judge recognized its existence and chose, in his decision, to give priority over it to the other statement that Bell gave customers at the time the contracts were entered into (that the top-up was valid for only a designated “active period”, eg 30 days for a $15 top-up).
Now, I realize that the judge's decision in fact treats the first definition of expiry date (ie a date Bell will assign and display within 48 hours of activation of a top-up) as if it didn't exist or had no significance.
What the lower court said we understood
So bearing that in mind, here's what I hope is a clearer explanation of what the judge said when he wrote about what we understood about the expiry date:
1) Having been given [only] Bell's statement that the active period for a $15 top-up would be 30 days, we understood that on day 30, our funds would expire.
2) As the contract entitled (or purported to entitle) Bell to confiscate the funds after the expiry date, contractually speaking, Bell did no wrong in seizing the account balance on day 31 (ie one day after the expiry date described above, in point 1).
3) It is true that after customers entered into the contract, Bell displayed a date on our phones and at its website, and sent text messages saying the “expiry date” was day 31. But because Bell did this after we had already agreed to a contract which said the funds would expire on day 30, we could not turn around and sue Bell for breach of contract when the company treated day 30 as the expiry date and confiscated our funds on day 31.
4) We might have cause to sue Bell for misrepresentation because the company told us our balance would expire on day 31 and we relied on that information and lost our funds because Bell treated day 30 as the expiry date instead.
5) A lawsuit for misrepresentation would not qualify as a class action (ie a collective lawsuit) because it would require the court to ask each of us (and there are more than one million prepaid wireless customers) who among us read Bell's message about day 31 being the expiry date and waited until day 31 to top-up, thus losing our funds when Bell treated day 30 as the expiry date.
It's important to be clear on what the judge said we understood at the time that we entered into the contract for prepaid wireless services in order to appreciate why our lawyers told the Ontario Court of Appeal that the judge, Justice Edward Belobaba, got things wrong,
Appeal court probes Bell's claims
We'll come to our lawyer's argument shortly. First, though, I'd like share a bit of what Bell said when our case came up in the Ontario Court of Appeal last month, and how the court took Bell's arguments.
Bell's lawyer, Steve Tenai, argued, of course, that the lower court judge made no error.
To paraphrase, Tenai said that the judge was correct in ruling that Bell was obligated to provide only what consumers understood that they would be getting at the time they entered into the contract (as outlined in the points above).
There were two moments during Tenai's presentation to the appeal court that filled me with relief that our complaint had been heard by those in authority.
The first came when Bell's lawyer told the Appeal panel (comprised of Ontario Chief Justice George Strathy, Justice Harry LaForme, and Justice Grant Huscroft) that when consumers pay for top-ups, Bell's receipts say “in plain, simple language” how long sums were valid, and that a $15 top-up was valid for 30 days, for example.
Chief Justice Strathy interjected that those same receipts also say that within 48 hours of topping up, customers would see an update providing the expiry date.
This, to me, was hugely significant, since, as mentioned above, the lower court judge's decision did not acknowledge that that statement appeared on the prepaid cards and the receipts in addition to the statement about the 30-day active period.
The second moment came later, when Tenai continued to argue that “it's right there in your face how long [the top-up] is valid...[customers] accept that they will get 30 days.”
Justice LaFlame asked Bell's lawyer whether when Bell says that the expiry date would be provided within the next 48 hours that meant that there could a different expiry date.
That, to me, was an extremely astute question.
Remember, Bell's argument, which the lower court judge had accepted, was that the 30-day validity period for a $15 top up was set in stone at the time that we entered into the contract.
However, LaFlamme's question gave me the hope that at least one member of the appeal panel recognized that Bell's statement – at the time we entered into the contract – that customers must check their account to see the expiry date within 48 hours expressed the possibility that Bell would provide an expiry date that was different from the 30th day which was stipulated according to the “active period”.
To me, the implication of LaFlamme's question is that having opened up this possibility at the time that we entered into the contract, Bell was obligated to honour the expiry date that it assigned and displayed to consumers within 48 hours of the activation of a top-up, even if that assigned date did not correspond to the 30-day validity period.
(By the way, according to my notes, Bell's lawyer's response to the appeal court judge's question involved explaining, firstly, that if customers mistook the messages that appeared within 48 hours to be the expiry date and lost their funds, Bell's practice was to restore the balance for one time only, because the dates in those messages were not the expiry date; and, secondly, that Bell's messages were merely reminders to customers of the day on which their funds would be confiscated, which fell after the expiry date.)
To put it simply, the observation and question from the appeal court panel suggested, to me, at least, that the judges recognized that at the time we entered into the contract, Bell was operating with two different expiry dates.
Why the lower court was wrong
The appeal courts' observation and question point to the reason our lead lawyer, Louis Sokolov, argued that the lower court judge's decision was wrong.
Sokolov said that Belobaba's decision ignores the existence of Bell's statement to customers that the company would display the expiry date within 48 hours of the activation of a top-up.
This statement appeared in the same places (the prepaid cards and receipts) that Bell told customers that the $15 top-up would last for only 30 days.
Sokolov said, in essence, that the judge was not entitled to treat the statement that favours Bell (the one about the 30-day active period) as if it was the only one that existed or had significance, and to treat the statement that favours us, the consumers (the one in which Bell defined the expiry date as whatever date it would assign and display on our phones and at its website) as if it did not exist or did not have any significance.
As mentioned last week, our lawyer told the appeal court that a company wishing to rely on a contract to confiscate the other party's money must be absolutely clear as to when the funds would be confiscated. Bell's contracts for prepaid wireless services did not meet that standard, Sokolov said.
In conclusion, I'll say that the day in court left me personally satisfied as the lead plaintiff representing Bell's prepaid wireless, pay-per-use customers that our voices had been heard.
But, here's the thing. I have learned that in the legal system nothing can be taken for granted. When judges make their decisions, they do not look at just the facts of the case before them in isolation. There are any number of rules and conventions arising from numerous previously decided cases that can have an impact on how a judge will treat the facts of a particular case.
So, while I was heartened by what transpired in court, we need to wait to hear exactly what the judges will decide concerning our complaint that Bell broke its contractual promises to us and took our funds earlier that it told us it would.
Our lawyers also argued that it was illegal for Bell to put expiry dates on prepaid wireless top-ups in the first place because Ontario's gift card legislation prohibits expiry dates on this payment method. The court's reception of this argument brought its own surprises.
Details on that, as well as on what we can expect next in this case, win or lose, will be in the third and final part of this round-up of the appeal hearing.