Bell Mobility is making plans to appeal a recent court ruling that found the company liable for charging its northern customers for 911 services that didn’t exist.
Last week Justice Ron Veale ruled that the company was going to have to pay back the nearly 30,000 customers in the Northwest Territories, Nunavut and the Yukon who had been paying a fee for 911 services that couldn’t be accessed in the North.
The lawsuit, launched in 2007 by father and son James and Samuel Anderson of Yellowknife, was certified as a class action in 2011.
Every Bell Mobility customer in the three territories - with the exception of those in Whitehorse, which has 911 service - was automatically included in the class, a move that lawyers for Bell Mobility fought vigorously against.
It’s the first class action lawsuit to make it through a territorial court.
Jason Laszlo, a representative from Bell Media relations, responded to requests for an interview with an emailed statement.
“We’re pleased the court ruled in our favour on the main issues certified for trial, and found that Bell Mobility is not required to provide live 911 operators. That is the responsibility of local governments. But we will certainly appeal its decision on a matter that hadn’t even been certified for trial - i.e. whether customers in those areas are exempt from paying the fees charged to all customers nationally.”
That’s not how Veale puts things.
He found that Bell Mobility, which had for years been charging its northern customers 75 cents a month for 911 services, was in breach of contract and unjustly enriching itself.
“The Bell Mobility Service Agreement does not require Bell Mobility to specifically provide the service nor does it permit Bell Mobility to charge a fee without providing the service,” wrote Veale in his decision.
A string of internal emails between Bell Mobility employees submitted to the court showed that the company was worried that the 911 charges were likely to lead to a lawsuit.
“We are getting complaints now, and if someone decides to launch a class action lawsuit we would have no reasonable grounds to defend the charge,” read one of the emails from 2007.
Nevertheless, once the lawsuit was filed, Bell Mobility “used every defence available to them in law to dispute this,” said Ken Landy, the Toronto-based lawyer who represented the Andersons and the other Bell Mobility customers.
Bell Mobility argued that though it was charging a 911 service fee, its contracts didn’t state that it would provide the service.
“A close reading of the Bell Mobility Service Agreement does indeed reveal that Bell Mobility has not expressly agreed to provide any service whatsoever. Rather, it has very cleverly drafted the service agreement to give the impression that it will provide a 911 emergency service under the heading ‘What we’ll provide to you,’” wrote Veale.
But to apply such a literal definition was unreasonable, he concluded.
“The literal interpretation results in the absurdity that a Bell Mobility subscriber has signed a contract to pay a monthly invoice for a 911 emergency service fee that Bell Mobility has not agreed to provide,” wrote Veal.
Bell Mobility started charging for 911 services on some of its plans in 2001.
It began offering service in the Yukon and the Northwest Territories three years later, and extended service to Nunavut a few years after that.
When James Anderson took out a contract with Bell Mobility in 2005, he complained about the 911 charge, but, because they were the only major cellphone provider in Yellowknife - having bought out NorthwesTel Mobility Inc. that same year - he didn’t have much of a choice.
“You either paid the monthly fee or you didn’t get a phone,” said Anderson in a previous interview. “Yes, I knew there was a charge. I didn’t agree with the charge, but if you didn’t pay it you couldn’t take out a cell plan with Bell.”
When someone in the North outside Whitehorse calls 911, the call gets routed to a recorded message:
“There are no 911 services in this area. Please hang up and dial the emergency number for your area. Or hang up and dial zero to reach an operator.”
But there are no operators on Bell Mobility’s network, in the North or anywhere else in the country.
Bell Mobility stopped charging 911 service fees for new contracts in 2009, two years after the lawsuit was launched.
Although Bell denied that there is any connection between that change to the service agreement and the lawsuit, Veale didn’t buy it.
“I find that it is reasonable to infer that the filing of the class action precipitated the decision to stop charging the 911 fee,” he wrote.
Although Veale found the company liable for the money it collected for the 911 charges, he stopped short of awarding punitive damages.
Exactly how much Bell is going to be on the hook for hasn’t yet been worked out.
Bell claims to not have very good records, which isn’t surprising, said Landy.
“Cellphone users change plans, change companies, move around, addresses change. There is some difficulty they may have in trying to pin it down, but that doesn’t excuse the fact that they need to repay money that they shouldn’t have charged based upon the judge’s findings,” he said.
Bell has a month to appeal the ruling and has given every indication that it will, said Landy, who finds this a little surprising.
“There are times from a corporate responsibility point of view that they would step up and say, ‘Based on the court’s finding we shouldn’t have done this. We want to make it right.’ But so far they have not done that.”
Contact Josh Kerr at
joshk@yukon-news.com