It’s difficult to imagine a more egregious case of corporate arrogance than Bell Mobility’s move to charge subscribers a monthly fee for a non-existent service and attempting to justify it in class action litigation. That’s the story of the ongoing litigation commenced in 2007 by two Yellowknife residents who objected to a charge of 75 cents a month for a 911 service that didn’t exist.
According to the judge who granted certification of the class action, dialling 911 in Yellowknife on a Bell Mobility cellphone resulted in calls being rerouted to a 10-digit number and a subsequent message stating, “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 dialling zero would result in a recorded message stating, “In case of emergency, hang up and dial *911.”
It’s obvious why subscribers might be frustrated enough to seek a remedy. But with each subscriber out of pocket a mere $9 per year, only a class action could provide a remedy. The lawsuit included thousands of customers in the Northwest
Territories, Nunavut, and Yukon (save for Whitehorse, where 911 services were in place).
Anderson v. Bell Mobility Inc., the first class action trial in the Northwest Territories, resulted in a victory for the plaintiffs. Bell Mobility contested the class action on the basis of what it claimed was a clear and express contractual right to collect 911 fees from customers in areas where no 911 services existed.
Bell Mobility relied on various statements in its standard form documents such as: “I understand that depending on the rate plan I select, I am also liable to pay . . . a monthly 911 service access fee outlined by Bell Mobility.”
Neither the trial nor the appellate court had difficulty rejecting Bell Mobility’s claim that it could rely on such imprecise language to permit it to charge a fee for providing no 911 service. Nothing in the documents explicitly stated Bell Mobility could charge something for nothing.
In arguing customers actually received something for their fee, Bell Mobility
unsuccessfully argued subscribers were able to access 911 services when they travelled to parts of Canada where such services existed.
Nothing in this litigation is surprising save that it continues into its eighth year. Time to seek leave to appeal to the Supreme Court of Canada hasn’t expired nor has the court dealt with quantification of damages.
The only damage issue dealt with to date is the trial judge’s rejection of a claim for punitive damages. In rejecting such an award, the trial judge stated: “It may be considered somewhat high-handed of Bell Mobility to continue charging 911 fees in the face of concerns and the inconsistent application of policy, but it does not rise to the level of reprehensible conduct required for punitive damages.”
Even a finding that Bell Mobility “refused to stop billing a fee until a class action was commenced despite its full knowledge of the lack of service for which it was charging a fee” was insufficient to justify punitive damages.
I’d argue punitive damages were in order. Surely, charging a fee for no service and then aggressively defending the practice through many years of litigation falls well beyond ordinary standards of decent corporate behaviour. According to principles enunciated by the Supreme Court of Canada in
Whiten v. Pilot Insurance Co., the purpose of punitive damages is “to deter the defendant and others from similar misconduct in the future (deterrence), and to mark the community’s collective condemnation (denunciation) of what has happened.”
Forcing Bell Mobility only to disgorge money it wrongly billed doesn’t provide sufficient deterrence or denunciation. Only a significant award of punitive damages would signify society’s condemnation of this blatant abuse of power and arrogance.
Alan Shanoff was counsel to Sun Media Corp. for 16 years. He currently is a freelance writer for Sun Media and teaches media law at Humber College. His e-mail address is [email protected].
