In the Northwest Territories, Yukon and Nunavut, cellular
service agreements between Bell Mobility and its customers provided
that all monthly service charges included a 911 emergency service
fee. However, except in the city of Whitehorse, when a Bell
Mobility customer dialed 911, he or she would be re-routed to a
recorded message stating that there are no 911 services available
and to please hang up and dial zero. Dialing zero connected
the customer to another recorded message, directing the customer to
hang up and dial 911. Customers were never able to reach a
In Anderson v Bell Mobility Inc., 2013 NWTSC 25,
Justice Veale considered whether Bell Mobility was liable to the
class of plaintiffs (Bell Mobility's customers in the Northwest
Territories, Yukon, and Nunavut) for charging this monthly service
fee when, in fact, there was no such service available. This
four day class action trial dealt with seven certified common
issues surrounding Bell Mobility's obligations under the
service agreements and any potential liability to the class members
on the bases of breach of contract, unjust enrichment or waiver of
tort, or for punitive or exemplary damages.
Common issues 1 to 5 addressed Bell Mobility's contractual
obligations to the class members. Justice Veale considered
whether the service agreements expressly or impliedly required Bell
Mobility to provide 911 live operator service to class members. He
found that the phrase "911 emergency service" in the
agreements meant live operator service, which Bell Mobility
conceded in an Agreed Statement of Facts had not been
provided. Justice Veale held that, pursuant to the service
agreements, Bell Mobility was not required to provide this live
operator service, but that it could not charge the fee in the
absence of the service. Therefore, he held that Bell Mobility
had breached the agreements with the class members. He also
found that there had been a lack of consideration by Bell Mobility,
and concluded that Bell Mobility had been unjustly enriched by
charging the fee when there had been no service provided.
Common issue 6 addressed whether Bell Mobility could be held
liable to the class members on the basis of waiver of tort.
Although this had been certified as a common issue in the class
action, Justice Veale stated that the fundamental premise of waiver
of tort is that the defendant must have committed a tort. As
this class action was based solely upon the service agreements
between Bell Mobility and the class members, and no tort was
alleged, waiver of tort was not applicable.
Finally, Justice Veale considered whether Bell Mobility could be
liable to the class members for punitive or exemplary damages.
He held that, while Bell Mobility's conduct seemed to be
leaning toward the high-handed end of the spectrum, it was not a
marked departure from the "ordinary standards of decent
behaviour", and did not rise to the level of
"reprehensible conduct" required for an award of punitive
"Or you can trade it all for what's behind door number two..." Be honest – whenever you see this set up on a game show you secretly want the contestant to give up the sure thing and take a peek behind door number two.
The Law Society of Upper Canada, which governs the practice of law in Ontario, has rewritten one of its rules of professional conduct to create greater clarity for lawyers on how assertively they may represent clients...
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).