Court of Appeal Decision of the Week

You Can’t Always Get What You Want” (Rolling Stones), But You Can Bring a Class Action to Get It (NWT C.A.)

Case: Bell Mobility Inc. v. Anderson, 2015 NWTCA 3

Key Words: Class Actions, Telecommunications, Certification

Summary: “The plaintiffs’ basic complaint is that the defendant Bell charged for non-existent services, namely 911 calling. There is no 911 service in the three Territories (except in Whitehorse). Monthly bills in the Territories bore a separate 911 fee of 75¢ (trial Reasons, supra, paras 23-24).” (para. 1)

In the (NWT) C.A.:

  • the Justice writing for the 3-judge panel (Côté, Sharkey, Wakeling)

(Côté writing) indicated:

 “One must approach this appeal through the contracts between the defendant Bell and its customers. That is because Bell relies heavily on the contracts for two purposes. First, Bell argues that it has an express contractual right to collect 911 fees from customers in areas where no 911 service of any kind is available. That is the central topic now litigated. Because of this suit, Bell dropped that fee for contracts made after November 2009…Second, Bell also argues that the contracts are a juristic reason for Bell’s enrichment from those fees, so that there cannot be unjust enrichment. A valid and enforceable contract which grants or permits something of course is a juristic reason. So the contract’s interpretation and enforceability is vital to the unjust enrichment issue.” (para. 2)

  • the C.A. acknowledged the recent S.C.C. decision (Sattva Capital Corporation v. Creston Moly Corporation, 2014 SCC 53.) on contract interpretation, then writes:

“…Bell repeatedly assert[s] that its contracts with customers plainly state that a monthly fee must be paid each month for some kind of 911 service. But in my view, the contracts do not bear out Bell’s assertion, and instead many passages say much the opposite.

…Bell’s written and oral argument to us says very little about the actual wording of the contracts, which are written. The same is true of Bell’s written brief given to the trial judge at the end of the trial.” (paras. 4 & 5)

  • after the customary “In my respectful view” introductory transition, the C.A. writes:

“…connecting someone to nothing is still nothing. A right to charge a door-to-door delivery fee for milk cannot be triggered by delivering empty bottles. An airline which produces on time an airplane with no vacant seats cannot charge a traveller for a ticket on that flight, absent very clear wording in the contract.” (para. 22)

  • as to 911 service:

“…Bell points to evidence that the public in the three Territories knew that there was no kind of 911 service there and never had been (except for the City of Whitehorse). Had these written contracts been specially drawn up for use in the three Territories, there might be some significance to that evidence. But (as noted above) they were not so drafted; they were Canada-wide contractual forms. Most parts of Canada have and have had 911 operator service for at least two generations.” (para. 24)

  • the C.A. went on the make this point as to printed form contracts [which I’m sure brings back for all of us fond memories of first year Contracts]:

“Printed form contracts of adhesion are legitimate contracts, and make many types of commerce possible or economical. But it is very common that such printed forms refer to topics which do not exist and cannot exist, for that locale or customer. A standard form proffered by a large Vancouver company to a Regina customer may speak about carriage of goods by sea, and ocean bills of lading. A reasonable bystander knowing that there is no ocean between Vancouver and Regina may conclude that the form is for use all across Canada and under many circumstances, and so that clause does not apply to landlocked customers. Similarly, a reasonable observer in Montreal would conclude that references in a national company’s standard form to a certain legal mechanism found only in the common-law provinces, with no equivalent in Quebec legislation, simply does not apply to Montreal customers. A covenant in a national form to pay provincial sales tax would be interpreted as not applying in Alberta or the Territories. It would not be interpreted as calling on Albertans to pay British Columbia sales taxes for goods from Ontario sold in Alberta.” (para 26)

  • the C.A. semi-concluded (‘semi’, because it’s para. 64 of a 129 para. judgment—so maybe that should be ‘demi-concluded’?) with this fun quote:

“…less appealing is Bell’s suggestion that when someone in the Territories dials 911, he or she sometimes gets the metaphysical benefit of being connected to someone else’s recorded message … saying that there is no service, and to call local emergency services’ phone numbers. The messages do not even give those phone numbers …. Bell is not obliged to do more. But to seek to charge for that by calling it 911 service, seems to me very unreasonable. It is like delivering to a starving person a photograph of a turkey dinner, and then charging him or her for a turkey dinner (or delivery of one)…”(para. 64)

  • small picayune point—C.A. uses the American(?) spelling of “favorable” in para. 115—these days never sure what is the quotidien proper spelling—my grade 5 English teacher Ms. MacArthur would be unimpressed—nay, she’d be a-turning in her grave.

S.C.C. update:

  • application for leave to appeal, (electronic version filed on Mon., March 9, 2015)
  • SCC #36336

Counsel for the Appellant: Robert Deane, Brad Dixon (Borden Ladner Gervais LLP, Vancouver)

Counsel for the Respondent: Keith Landy, Samuel Marr (Landy Marr Kats LLP, North York, Ontario)

Counsel at first instance: David Fogel (Landy Marr Kats LLP, North York, Ontario)

Discuss on CanLii Connects

Thank you: Norma Priday, Toronto Transit Commission, norma.priday@ttc.ca (for bringing this case to my attention)

 

Posted: Friday, March 06, 2015