Subscribe to receive news and updates
By providing your name and email, you are agreeing to be contacted concerning this consumer education and mobilisation campaign. Your information with not be shared with any third party and you will not be contacted by any third party, unless you so authorise.
Bell says those expiry dates on your account were just "reminder notices", not expiry dates
February 06, 2015
By Celia Sankar
As promised, here is the second, and final, wrap-up of the class action lawsuit against Bell Mobility, which was heard on January 28 before the Ontario Superior Court.
As you will recall, the lawyers representing us as prepaid wireless customers of Virgin Mobile, Bell Mobility and Solo Mobile (which are all Bell brands) argue that Bell was wrong to seize our unused balances for two reasons.
The first was that expiry dates on prepaid, pay-per-use wireless account balances fall under the definition of gift card agreements; and since Ontario has outlawed expiry dates on gift cards, Bell's expiry dates on our prepaid wireless, pay-per-use balances were illegal.
Our lawyers argued, secondly, that Bell was wrong to take our funds when it did because the company's contract with us did not permit it to do so until after the so-called expiry date.
Now, often the phone companies promote prepaid wireless services by saying there are no contracts. And it's true that unlike post-paid customers, prepaid wireless customers do not sign an individual contract with the mobile service provide.
However, in the eyes of the court, Bell's terms of service (the fine print) form a binding agreement, ie a contract, between you and Bell.
The terms of service state what Bell can and cannot do, and what you can and cannot do, as well.
Putting aside the issue of whether expiry dates are illegal, and looking just at the language of the “contract”, our lawyers argued that Bell's terms stated that Bell could not seize the funds in our prepaid accounts until after the “expiry date”, for Virgin Mobile Canada customers, or after “a specified period” in the case of Bell Mobility and Solo Mobile customers.
Our lawyers told the court that Bell's system generated the expiry date when we “topped-up” (ie added funds to our account); for much of the time covered by the lawsuit, for, say, a top-up worth $15, the expiry date was 31 days later.
However, Bell's lawyer told the court that these expiry dates generated by Bell's system and communicated to consumers should be ignored entirely.
Why? Bell pointed, instead, to fine print on top-up cards, top-up receipts, brochures and its websites that stated that if you got that $15 top-up, the expiry date would fall 30 days later.
Bell told the court it was only the expiry dates outlined in the fine print that mattered because they existed before we topped-up.
And those expiry dates generated by Bell's computer and shown by Bell to you and me on our accounts? They're just “reminder notices”, Bell's lawyer told the court, arguing that Bell could not be bound by them.
Unfortunately for Bell, our lawyers pointed out that those same top-up cards, brochures and websites that Bell claimed fixed the expiry date at 30 days also told us that our our accounts would show what the expiry dates would be after we topped-up. In other words, the fine print itself made the expiry dates that are generated by the system part of the contract, and cannot be ignored.
Further, our lawyers pointed out that Bell was in charge of producing all the material – brochures, top-up cards, top-up receipts, websites, etc. So if one set of materials said one thing (expiry after 30 days) and another set contradicted it (saying expiry was after 31 days), then Bell and Bell alone has to accept the consequences of any resulting confusion.
The principle established by the court in similar scenarios, our lawyers noted, is that when a company creates ambiguity about its terms, then the consumer gets the benefit of the better deal.
In this case, our lawyers argued, it meant that Bell could not seize our balances until after the 31st day after we topped-up.
In summary, our claim is that having breached the contract (ie violated its own terms of service) by seizing our funds too early, Bell must give us our money back.
As mentioned in my first wrap-up post, the judge who heard the case, Justice Edward Belobaba, indicated he will give his decision before the end of February. I'll update you as soon as I get word.