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Justice for all?
December 18, 2015
By Celia Sankar
Appeal of Bell Mobility Class Action: Part III
In this class action lawsuit in which prepaid wireless, pay-per-use customers are suing Bell Mobility over the loss of our funds on so-called "expiry dates", our lawyers have argued that Bell's confiscation of our balance was illegal according to Ontario's gift card regulation.
Perhaps all of us have come across those little rectangles of (usually) hard plastic called gift cards that have a dollar value. The term "gift card" refers to a payment method that exploded in popularity some years ago. The gift card payment method involves consumers giving merchants money and the merchants converting the funds into electronic credits or vouchers which can be used just like cash to purchase a variety of goods and services.
In the past, consumers lost millions of dollars when retail merchants placed expiry dates on these cash equivalents. The retailers pocketed the funds and consumers got nothing in return, simply because they didn't make purchases according to the merchants' timetable.
Heeding consumers' cries about the unfairness of losing their money in this manner, the Ontario legislature introduced the "gift card" regulation banning expiry dates on gift cards.
Jean-Marc Leclerc, one of our lawyers, told the Ontario Court of Appeal at last month's hearing of our case that the lower court judge made an error when he said that this law didn't apply to Bell's top-ups for wireless services (which involve consumers giving Bell money and Bell converting the funds into electronic credits which can be used just like cash to purchase a variety of goods and services via Bell's wireless network.)
Leclerc said, basically, that the "gift card" legislation was created to protect all consumers from losing money when this payment method – commonly know as a "gift card" – is used.
The mistake the lower court judge made, Leclerc said, was that he determined that only consumers who received a gift card as a gift from a third party were protected by the legislation.
Ontario Chief Justice George Strathy (who is on a panel of three hearing the case) asked, "What's to say that the judge was not entitled to interpret this as the common meaning of the word 'gift'?"
The legislation, itself, does not say anything about consumers having to show an intention to give a gift card as a gift to a third party in order for the funds to qualify for protection, Leclerc said.
In his turn, Bell's lawyer, Steve Tenai, said that because the regulation is called the "gift card regulation" it was clear that it was meant to apply only to "gifts".
He argued that the lower court judge, Justice Edward Belobaba, was right when he specified that top-ups bought directly from Bell (online or on the phone using a credit or debit card) could not be protected by the gift card legislation. This is because such top-ups are unlike top-up cards found in the stores that one person can purchase and give to somebody else, Tenai said.
A top-up that's paid for with a credit or debit card online or by phone "can't be a gift" Tenai told the court, because "you can't transfer it to anybody".
I'll interject here and say that one hopes that the appeal court judges in their wisdom will consider the following scenario that quite possibly will play out in many homes over the course of the next week as families gather for Christmas: A grandfather chides his grandson, who's back home from university in another province, for not calling home often enough. Hearing the grandson protest that calls are too expensive for his student budget, the grandfather says, "Log into your account. I'll use my credit card and put $15 on your phone, so you'll have no excuse not to call me."
Now, according to Bell's and the lower court judge's reasoning, because Grandpa uses his credit card to acquire the top-up, and because neither Grandpa nor his grandson can transfer this $15 top-up to a third person, this $15 top-up is not entitled to protection under the gift card regulation.
But according to Bell's and the lower court judge's reasoning, because the grandson receives the $15 top-up as a gift from Grandpa, then this $15 top-up is entitled to protection under the gift card regulation.
Did the legislators intend that every gift card be scrutinized like this in order to determine whether it would qualify for protection?
Did they intend the above absurd scenario in which a gift card could be said to be protected and at the same time not protected by the regulation?
Or did the legislators intend to respond to consumers' outcries by protecting consumer funds from confiscation when consumers use a payment method which just happened to be commonly referred to as "gift cards"?
That is what the learned members of the appeal panel (Chief Justice Strathy, Justice Harry LaForme, and Justice Grant Huscroft) will have to decide.
So what's next?
We await the decision, which can come at any moment, or may take months again. Rest assured, though, that you'll receive word from me once I learn the outcome.
Whichever side wins, the other side has the right to ask the Supreme Court of Canada to reverse the Ontario Appeal Court decision. The Supreme Court can decline to hear the appeal and that would be the end of this aspect of the matter.
If Bell wins, here and above, there would certainly be no refund for consumers.
But there won't be any costs to us, either. That's because the Class Proceedings Fund (a programme of the Law Foundation of Ontario) is backing us and is covering our costs.
However, if we win before the Ontario Appeal Court or the Supreme Court (if this case ever gets there), that is not likely to be the end of things.
When he stood in court last month, Bell's lawyer signalled the company's intention to make this a long fight.
So even if we win on the issues I've relayed in this three-part report, Bell indicated that it will return to the Ontario Superior Court to plough ahead with two other issues, one of which is its contention that Ontario's consumer protection regulations cannot apply to it since telephone companies are regulated by the federal government.
On the surface, this battle is over what was supposed to be cheap cellphone service. But, to me, what's really at stake are fundamental issues about justice, and about the kind of Canada we live in.
Is Ontario a province, and Canada a nation in which a large, powerful company can freely operate with an ambiguous contract that targets the most vulnerable members of society and causes them to lose millions of dollars?
Or is this a land where ordinary citizens can depend on the justice system to uphold principles of fairness and the ideal of justice for all?
Bell has indicated its intention to make this a long, drawn-out legal battle. As the lead plaintiff, I say, God willing, I'm in for the long-haul. I look forward to taking this to its final conclusion alongside you.
Happy holidays and all the best until next time.