Ontario Civil


Communications Law

Telephones
Motion judge correctly held that prepaid wireless phone card expired at end of last day of active period

Bell Mobility’s top-ups allow customers to add credit to prepaid wireless phone card accounts to extend active period in which to access Bell’s wireless network. Bell’s practice was to claim unused funds the day after end of active period. Appellant’s certified class action alleged Bell collected those funds improperly because contract provided Bell had to wait until second day after end of active period and, in alternative, that Ontario gift card regulations forbid imposition of expiry dates on prepaid phone cards. Motion judge granted summary judgment, answering common issues in Bell’s favour, and dismissed class action. He held gift card regulation did not apply and ruled Bell did not breach its contract. He held Bell intended, and subscribers understood, that agreement would expire at end of relevant active period and unused funds would be claimed by Bell after that time unless account topped up before expiry. He noted that information on prepaid cards and PIN receipts used to activate top ups was consistent with language of subscriber agreements, with brand brochures and pamphlets and with information on Bell’s websites. Appellant appealed, arguing motion judge failed to consider prepaid wireless contract as whole and in finding gift card regulation inapplicable. Appeal dismissed. Motion judge correctly held that card expired at end of last day of active period. Bell intended, and subscribers understood, that agreement would expire at end of relevant active period and unused funds would be claimed by Bell after that time unless account was “topped up” before expiry. Motion judge entitled to rely on other documents, in addition to initial agreements, that formed part of contractual relationship between parties. Modern contracts often made partly on paper and partly on internet. Not unusual to find contract terms in several “documents.” Where parties enter into interrelated agreements, court required to look to all those agreements to determine construction. Motion judge’s interpretation of contract, based on Bell’s terms and conditions of service and other documents available at time of contracting, was correct. Gift card regulations prohibit expiry date on future performance of gift card agreement but do not prohibit agreement being time-limited. Customers were buying defined period of wireless service. Purchaser could decide when to activate service in order to begin that period. Bell required to perform agreement once consumer decided to activate. Fact that service purchased was for defined period was not breach of regulation.

Sankar v. Bell Mobility Inc. (Apr. 4, 2016, Ont. C.A., G.R. Strathy C.J.O., H.S. LaForme J.A., and Grant Huscroft J.A., CA C60176) Decision at 249 A.C.W.S. (3d) 564 was affirmed. 264 A.C.W.S. (3d) 562.

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