Sankar v. Bell Mobility Inc. and Bell Canada Enterprises
Consumer Class Action
What the class action is about
The law firms of Goldblatt Partners LLP and Sotos LLP are co-counsel in a proposed class action lawsuit launched against Bell Mobility Inc. (“Bell”) and its parent company, Bell Canada Enterprises. The $100 million lawsuit claims that the expiry dates on Bell’s pre-paid wireless services are illegal.
The lawsuit alleges that Bell systemically breaches its contracts with its pre-paid wireless customers by seizing credit balances and that Bell engages in “unfair business practices”, contrary to Ontario’s Consumer Protection Act. In particular, the lawsuit alleges that pre-paid wireless services payments are “gift cards”, as defined by the Act, and cannot have an expiry date, and that Bell’s communications to its customers about expiry dates are misleading. The allegations in the lawsuit have not yet been proven in court.
The proposed representative plaintiff, Celia Sankar, is Bell pre-paid wireless customer who had her credit balance seized on two occasions, in September 2011 and February 2012.
If the case is certified as a class action, Ms. Sankar will represent all persons in Ontario who purchased or otherwise acquired pre-paid wireless services under the brands Bell Mobility, Virgin Mobile Canada and Solo Mobile since May 4, 2010.
“Because the prepaid wireless service is the least expensive way to have a phone, and does not require a credit card or a bank account, it is often the only option for youth, new immigrants, workers on minimum wage, the unemployed, people on disability, and seniors on fixed incomes,” Sankar said. “These are the people who can least afford to have their funds forfeited or to have their mobile services cut off.”
October 19, 2017: Supreme Court denies permission to appeal
The Supreme Court of Canada has denied the plaintiff’s application for leave to appeal. As is its usual practice, the Court did not give reasons for this decision. This means that the Superior Court judgment, deciding the case in favour of Bell Mobility, will stand.
August 28, 2017: Plaintiff seeks leave to appeal to the Supreme Court
The plaintiff has filed an application for leave to appeal the Ontario Court of Appeal’s most recent decision to the Supreme Court of Canada. A decision is pending.
April 12, 2017: Ontario Court of Appeal dismisses the case again
The Ontario Court of Appeal has affirmed its original decision to dismiss the appeal. After reviewing the Supreme Court’s decision in Ledcor Construction Ltd. v. Northbridge Indemnity Insurance Co., the Court of Appeal concluded that there was no basis to reach a different conclusion than had been reached in its October 20, 2016 decision.
You can read the Court’s decision here.
The plaintiff and her counsel are considering whether to again seek leave to appeal to the Supreme Court of Canada.
October 20, 2016: Supreme Court sends case back to Court of Appeal
The Supreme Court of Canada has sent the case back to the Ontario Court of Appeal “for disposition in accordance with Ledcor Construction Ltd. v. Northbridge Indemnity Insurance Co.”
Ledcor is a decision of the Supreme Court of Canada dealing with the interpretation of standard form contracts, such as the one at issue in this case. The Ledcor decision was just released in September 2016, and was therefore not available to the Ontario Superior Court when it considered Bell’s summary judgment motion, or the Ontario Court of Appeal when it determined the appeal. The Supreme Court of Canada has essentially asked the Court of Appeal to reconsider whether the contract in this case was properly interpreted in light of the principles set out in Ledcor.
A new appeal date before the Ontario Court of Appeal has been scheduled for Friday January 20, 2017.
April 4, 2016: Ontario Court of Appeal dismisses the plaintiff’s appeal
The Ontario Court of Appeal has dismissed our appeal of the Superior Court’s decision, which granted the Bell Mobility’s motion for summary judgment and dismissing the lawsuit. A copy of the decision can be found here. The plaintiff is seeking leave to appeal to the Supreme Court of Canada.
February 12, 2015: Superior Court dismisses the case
The Ontario Superior Court of Justice has decided that Bell did not breach the terms of the “top-up” agreements and that the expiry and forfeiture of unused credit balances was not contrary to the Gift Card Regulation.
The plaintiff is appealing the decision.
August 25, 2014: Notice of Certification
The Court has now issued a Notice of Certification of Class Proceeding. Please read the notice if you are a member of the class, which is defined as follows:
All persons in Ontario who were prepaid, pay-per-use wireless telephone customers of Bell Mobility, Virgin Mobile Canada and Solo Mobile and had balances remaining in their accounts which expired between May 4, 2010 and December 16, 2013.
The Notice contains an “opt-out” section, that tells you how to opt out of the class action. The deadline for opting out is November 17, 2014. If your written request to opt out is not received by 5:00 pm on that date, you will remain a member of the Class.
September 4, 2013: Class action certified
On September 4, 2013, Justice Belobaba of the Superior Court of Justice certified the class action and appointed Celia Sankar as the representative plaintiff.