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Seeking to clear up the confusion
June 23 , 2017
By Celia Sankar
2nd Application to SCC for leave to appeal
Last week, our lawyers applied for leave to ask Canada's top court to step in to clear up the confusion created by the Ontario Court of Appeal as to what forms a consumer contract when it decided against us in our class action against Bell Mobility.
According to the application for leave to appeal filed by our lawyers in the Supreme Court of Canada, the Ontario court set a precedent which leaves consumers with uncertainty as to what forms the terms of their agreement with a company.
Say you make an agreement with a company for goods or services based on the company's standard Terms of Service (TOS). Can you have faith in the TOS as the final and complete document that states the company's obligations to you and yours to the company?
Or would a company be able to put out extra bits of information (stating terms less advantageous to you than what's in the TOS) and post them on their website, or print them on receipts or in brochures, or email them to you and claim that this extra information forms binding terms?
Would such extra information outside of the TOS be binding on the company and you if they are created before the agreement is made? What about extra information presented immediately after, or seven, or thirty days after?
The application filed by our lawyers suggests that the Ontario court's decision against us this past April leaves consumers unable to answer such fundamental questions.
This is because when the Ontario court ruled that Bell had the right to seize consumers' credit balances in prepaid wireless services accounts, it treated different bits of information not in Bell's TOS differently.
The application points out:
...the Court of Appeal elevated some evidence to contract terms, such as “information on the phone card” and information on “the receipt given to the customer,” which the Court of Appeal acknowledged were not contemporaneous with the Terms of Service. By contrast, the Court of Appeal held, other information that also was not contemporaneous with the Terms of Service should be discarded under the contractual analysis: “the expiry date that Bell assigned to the customer’s account, after the top-up was made,” text messages that Bell sent to all of its customers, brochures available in Bell’s stores or Bell’s website information. The Court of Appeal provided no guidance to explain why certain types of post-contractual information could be considered in the breach of contract analysis, but others did not.
Some one million prepaid wireless consumers (whom I represent as the lead plaintiff in the class action lawsuit) are directly affected by the Ontario Court of Appeal's ruling in the Bell Mobility case.
But the decision has implications for every consumer in Ontario who ends up in a dispute with a company over the terms of service.
The application states:
The effect of the Court of Appeal’s confusing analysis and selective reliance on certain post-contractual alleged Terms of Service will result in confusion over a question as basic as “what is the Court entitled to consider in its analysis of standard form contracts?”
The full application may be viewed here.
Bell will have an opportunity to present its counter arguments to the Supreme Court. Then our lawyers will get a chance to reply.
After that, we will have to wait to learn if the Supreme Court will agree to hear our case.
All the best,