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Class action appeal to be heard tomorrow
November 22, 2015
By Celia Sankar
The appeal of our class action lawsuit against Bell Mobility over the seizure of funds in our prepaid wireless accounts comes up in court tomorrow.
The three-member panel that will decide the matter includes Ontario Chief Justice George Strathy, Justice Harry S. LaForme, and Justice Grant Huscroft.
The panel will hear arguments by our legal team from the law firms of Sotos LLP and Goldblatt Partners LLP that the lower court judge made several errors when he decided that Bell was entitled to seize our funds in the manner that it did.
This case focuses on the cash that consumers deposit into prepaid accounts with Bell in order to purchase wireless services from Bell Mobility, Virgin Mobile Canada and Solo Mobile.
It was prompted by Bell's action of displaying messages on consumers' phones and online accounts that consumers must top-up (ie add more funds to the accounts) by a so-called expiry date in order to preserve the account balances, and then seizing the balances before the end of the designated expiry date.
As the lead plaintiff, I represent more than one million Bell Mobility prepaid wireless customers, who are seeking $200 million in damages.
Led by Louis Sokolov, our lawyers argue that one of the crucial facts the lower court got wrong concerns the expiry dates themselves. The judge determined that even though Bell sets the previously-mentioned “expiry dates” for customer account balances and communicates those dates to customers (via its website and via customers' cellphones) customers do not take those dates to be the expiry dates.
In a document submitted earlier this year to the appeal court, our lawyers pointed out that the judge had been presented with evidence in which consumers stated that we understood “expiry date” to mean precisely those dates that Bell communicated to us (on our cellphone and at the company website).
Our lawyers are also arguing that Bell's practice of applying expiry dates to 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.
The lower court judge said that prepaid wireless, pay-per-use customers could not be protected under this law because the payment is for only one service, namely "access to Bell's network".
This is a second, crucial fact our lawyers say the lower court got wrong. They point out that Bell never offered customers a single service defined as "access to Bell's network". In fact, they argue that the judge had evidence in the form of Bell's contracts which demonstrated that Bell stated prepaid, pay-per-use customers had full discretion to choose from among a variety of services, such as local voice calls; long distance calls; text, picture, video or other messaging; downloads; browser usage; applications; and streaming, among others.
One other ground on which our lawyers have asked the Court of Appeal to reverse the lower court's decision is the erroneous determination that prepaid wireless, pay-per-use "top-ups" could not qualify for protection under the gift card regulation because prepaid wireless top-ups are bought by consumers for themselves and therefore are not "gifts".
Class counsel pointed out that the judge had no evidence that customers do not acquire top-ups for others as gifts. Furthermore, our lawyers argued that by stating a gift card had to be a gift in order to be protected by the consumer protection laws, the judge interpreted the regulation in a way that would render it useless.
The 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 date on it, but if you bought the same gift card for yourself, the supplier could legally put an expiry date on it.
Bell, of course, will tell the judges that they were entitled to seize our funds in the manner they did, and I will be in court, tomorrow, to catch and report on their arguments.
However, as I have to go on the road right after the hearing and will have only intermittent Internet access for the rest of the week, it will likely be next week that I'll be able to post a report. I promise to file an update as soon as I can, so watch this space.