Sankar v. Bell Mobility Inc., (2016) 348 O.A.C. 58 (CA)

JudgeStrathy, C.J.O., LaForme and Huscroft, JJ.A.
CourtCourt of Appeal (Ontario)
Case DateNovember 23, 2015
JurisdictionOntario
Citations(2016), 348 O.A.C. 58 (CA);2016 ONCA 242

Sankar v. Bell Mobility Inc. (2016), 348 O.A.C. 58 (CA)

MLB headnote and full text

Temp. Cite: [2016] O.A.C. TBEd. AP.010

Celia Sankar (plaintiff/appellant) v. Bell Mobility Inc. (defendant/respondent)

(C60176; 2016 ONCA 242)

Indexed As: Sankar v. Bell Mobility Inc.

Ontario Court of Appeal

Strathy, C.J.O., LaForme and Huscroft, JJ.A.

April 4, 2016.

Summary:

Sankar failed to "top up" her Bell Mobility Inc.'s prepaid wireless phone card account. Bell claimed unused funds the day after the end of the active period. Sankar's certified class action alleged that Bell collected those funds improperly. She claimed the contract provided that Bell had to wait until the second day after the end of the active period. Alternatively, she alleged that Ontario legislation forbade the imposition of expiry dates on prepaid phone cards. Bell moved for summary judgment answering the common issues in Bell's favour.

The Ontario Superior Court, in a decision cited as 2015 ONSC 632, ruled that Bell did not breach its contract and that the Gift Card Regulation under the Consumer Protection Act did not apply to prepaid phone cards. He granted summary judgment and dismissed the class action. Sankar appealed.

The Ontario Court of Appeal dismissed the appeal.

Consumer Law - Topic 5

General - Application of consumer protection legislation - A motion judge ruled that the Gift Card Regulation under the Consumer Protection Act did not apply to Bell's prepaid phone cards - He therefore granted summary judgment in Bell's favour and dismissed the class action - The Ontario Court of Appeal dismissed the appeal - "I rest my conclusion on the interpretation of the Gift Card Regulation ... . The regulation prohibits an expiry date on the ' future performance of the agreement '. It provides that a future performance agreement with an expiry date is to be effective 'as if it had no expiry date'. Its purpose is to prevent the expiry of the agreement before the seller of the card has delivered the goods or performed the services promised under the agreement. It does not prohibit an agreement being time-limited ... . The fact that the service purchased was for a defined period, calculated on the dollar value of credits the consumer added to the account, was not a breach of the regulation. To hold otherwise would mean that Bell was required to keep the wireless service and number available to the customer indefinitely, a patently unreasonable outcome." - See paragraphs 46 to 50.

Contracts - Topic 6

General principles - General - What constitutes the contract - [See Contracts - Topic 25 ].

Contracts - Topic 25

General principles - Merger - Series of documents re single transaction - The appellant failed to "top up" her Bell Mobility Inc.'s prepaid wireless phone card account - Bell's practice was to claim unused funds the day after the end of the active period - The appellant's certified class action alleged that Bell collected those funds improperly - Bell moved for summary judgment - The motion judge ruled that Bell did not breach its contract - The Ontario Court of Appeal dismissed the appeal - "The motion judge found that, at the time of contracting, Bell intended, and subscribers understood, that the agreement would expire at the end of the relevant active period. They understood that any unused funds would be claimed by Bell after that time, unless the account was 'topped up' before expiry. The information on the prepaid cards and the PIN receipts was consistent with the language of the subscriber agreements, with brand brochures and pamphlets available at retailers and with the information on Bell's websites. ... [I]n addition to the initial agreements, the motion judge was entitled to rely on other documents that formed part of the contractual relationship ... . These, taken together with the agreements made when they subscribed to the service, formed the contract between every customer and Bell. ... It is not uncommon in modern contracts, including contracts made partly on 'paper' and partly on the internet, for the contract terms to be found in several 'documents'. And it is well-settled that where parties enter into interrelated agreements, the court is required to look to all those agreements to determine their construction." - See paragraphs 16 to 25.

Practice - Topic 8808

Appeals - General principles - Duty of appellate court respecting conclusions or interpretation of trial judge - Contractual interpretation - The appellant failed to "top up" her Bell Mobility Inc.'s prepaid wireless phone card account - Bell's practice was to claim unused funds the day after the end of the active period - The appellant's certified class action alleged that Bell collected those funds improperly - She claimed the contract provided that Bell had to wait until the second day after the end of the active period - A motion judge granted summary judgment in Bell's favour - The Ontario Court of Appeal held that "a correctness standard applies to the interpretation of the Bell contracts, which included standard terms of service and standard form phone cards and PIN receipts. The factual matrix applicable to the dealings between individual customers and Bell plays no role in the interpretation of the contracts. Indeed, if that did play any role, the interpretation of the contract would not be a suitable common issue, because the answer could vary depending on the underlying facts. " - In the result, the Court held that the motion judge's interpretation of the contract was correct - "It was based on Bell's Terms and Conditions of Service and other documents available at the time of contracting and the ordinary, grammatical and common sense meaning of the contract language." - See paragraphs 26 to 29.

Telecommunications - Topic 1091

Wireless telecommunications services - General - [See Consumer Law - Topic 5 and Contracts - Topic 25 ].

Counsel:

Louis Sokolov, Jean-Marc Leclerc and Christine Davies, for the appellant;

Steve Tenai and Guy White, for the respondent.

This appeal was heard on November 23, 2015, before Strathy, C.J.O., LaForme and Huscroft, JJ.A., of the Ontario Court of Appeal. In reasons written by Strathy, C.J.O., the Court delivered the following judgment, released on April 4, 2016.

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17 practice notes
  • Ledcor Construction Ltd. v. Northbridge Indemnity Insurance Co. et al., [2016] N.R. TBEd. SE.009
    • Canada
    • Supreme Court (Canada)
    • 15 Septiembre 2016
    ..., at paras. 12-14; True Construction Ltd. v. Kamloops (City) , 2016 BCCA 173 , at para. 34 (CanLII); and Sankar v. Bell Mobility Inc. , 2016 ONCA 242, at para. 26 (CanLII). [23] In other cases, however, courts of appeal have applied Sattva and have deferred to trial courts' interpreta......
  • Ledcor Construction Ltd. v. Northbridge Indemnity Insurance Co., 2016 SCC 37
    • Canada
    • Supreme Court (Canada)
    • 15 Septiembre 2016
    ...Ltd., 2015 ONCA 919 , 128 O.R. (3d) 188 ; True Construction Ltd. v. Kamloops (City), 2016 BCCA 173 ; Sankar v. Bell Mobility Inc., 2016 ONCA 242; Kassburg v. Sun Life Assurance Co. of Canada, 2014 ONCA 922 , 124 O.R. (3d) 171 ; Anderson v . Bell Mobility Inc., 2015 NWTCA 3 , 593 A.R......
  • Ledcor Construction Ltd. v. Northbridge Indemnity Insurance Co. et al., [2016] A.R. TBEd. SE.129
    • Canada
    • Canada (Federal) Supreme Court (Canada)
    • 30 Marzo 2016
    ..., at paras. 12-14; True Construction Ltd. v. Kamloops (City) , 2016 BCCA 173 , at para. 34 (CanLII); and Sankar v. Bell Mobility Inc. , 2016 ONCA 242, at para. 26 (CanLII). [23] In other cases, however, courts of appeal have applied Sattva and have deferred to trial courts' interpretations......
  • Ledcor Construction Ltd. v. Northbridge Indemnity Insurance Co. et al., (2016) 487 N.R. 1 (SCC)
    • Canada
    • Canada (Federal) Supreme Court (Canada)
    • 30 Marzo 2016
    ...188, at paras. 12-14; True Construction Ltd. v. Kamloops (City) , 2016 BCCA 173, at para. 34 (CanLII); and Sankar v. Bell Mobility Inc. , 2016 ONCA 242, at para. 26 (CanLII). [23] In other cases, however, courts of appeal have applied Sattva and have deferred to trial courts' interpretation......
  • Request a trial to view additional results
10 cases
  • Ledcor Construction Ltd. v. Northbridge Indemnity Insurance Co., 2016 SCC 37
    • Canada
    • Supreme Court (Canada)
    • 15 Septiembre 2016
    ...Ltd., 2015 ONCA 919 , 128 O.R. (3d) 188 ; True Construction Ltd. v. Kamloops (City), 2016 BCCA 173 ; Sankar v. Bell Mobility Inc., 2016 ONCA 242; Kassburg v. Sun Life Assurance Co. of Canada, 2014 ONCA 922 , 124 O.R. (3d) 171 ; Anderson v . Bell Mobility Inc., 2015 NWTCA 3 , 593 A.R......
  • Ledcor Construction Ltd. v. Northbridge Indemnity Insurance Co. et al., [2016] N.R. TBEd. SE.009
    • Canada
    • Supreme Court (Canada)
    • 15 Septiembre 2016
    ..., at paras. 12-14; True Construction Ltd. v. Kamloops (City) , 2016 BCCA 173 , at para. 34 (CanLII); and Sankar v. Bell Mobility Inc. , 2016 ONCA 242, at para. 26 (CanLII). [23] In other cases, however, courts of appeal have applied Sattva and have deferred to trial courts' interpreta......
  • Ledcor Construction Ltd. v. Northbridge Indemnity Insurance Co. et al., [2016] A.R. TBEd. SE.129
    • Canada
    • Canada (Federal) Supreme Court (Canada)
    • 30 Marzo 2016
    ..., at paras. 12-14; True Construction Ltd. v. Kamloops (City) , 2016 BCCA 173 , at para. 34 (CanLII); and Sankar v. Bell Mobility Inc. , 2016 ONCA 242, at para. 26 (CanLII). [23] In other cases, however, courts of appeal have applied Sattva and have deferred to trial courts' interpretations......
  • Ledcor Construction Ltd. v. Northbridge Indemnity Insurance Co. et al., (2016) 487 N.R. 1 (SCC)
    • Canada
    • Canada (Federal) Supreme Court (Canada)
    • 30 Marzo 2016
    ...188, at paras. 12-14; True Construction Ltd. v. Kamloops (City) , 2016 BCCA 173, at para. 34 (CanLII); and Sankar v. Bell Mobility Inc. , 2016 ONCA 242, at para. 26 (CanLII). [23] In other cases, however, courts of appeal have applied Sattva and have deferred to trial courts' interpretation......
  • Request a trial to view additional results
7 firm's commentaries
  • Canadian Internet Law Update – 2016
    • Canada
    • Mondaq Canada
    • 4 Mayo 2017
    ...of paid content for non-commercial uses. The court dismissed the action. Contract Interpretation Principles Sankar v. Bell Mobility Inc., 2016 ONCA 242, involved a certified class action proceeding challenging Bell Mobility's practice of keeping the unused balance of a prepaid wireless phon......
  • COURT OF APPEAL SUMMARIES (August 24 – 28, 2020)
    • Canada
    • LexBlog Canada
    • 1 Septiembre 2020
    ...Settlement Agreement, Civil Procedure, Stay Pending Appeal, Directions, Fontaine v. Canada (Attorney General), 2014 ONSC 4585, aff’d 2016 ONCA 242, RJR-MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311, Zafar v. Saiyid, 2017 ONCA 919, Longley v. Canada (Attorney General), 200......
  • 'Today Just Got Better'… Unless You Had A Prepaid Cellphone Card From Bell Mobility
    • Canada
    • Mondaq Canada
    • 5 Mayo 2016
    ...Mobility's slogan may ring hollow for some Canadians in light of the Ontario Court of Appeal's decision in Sankar v. Bell Mobility Inc., 2016 ONCA 242, which will likely end the $200-million class action involving as many as one million Canadians. In reasons issued April 4, 2016, the Court ......
  • Gift card litigation: Recent developments
    • Canada
    • JD Supra Canada
    • 20 Junio 2016
    ...forfeits any unused minutes unless the subscriber extends the plan by purchasing more credits. In Sankar v. Bell Mobility Inc., 2016 ONCA 242, the proposed class action plaintiff sought to certify a class action proceeding to challenge the expiry of the plan credits, among other things. The......
  • Request a trial to view additional results

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