On April 4, 2016, the Ontario Court of Appeal granted summary
judgment in Sankar v Bell MobilityInc.,
dismissing a certified class action against Bell Mobility Inc.
("Bell") regarding prepaid wireless credits. The proposed
class action was commenced against Bell for alleged breaches of
The Court of Appeal's decision provides valuable insight
into the courts' willingness to make dispositive findings on a
summary judgment motion in the context of a class proceeding.
The Certified Class Proceeding
The key issue before the Court was whether the prepaid credits
sold by Bell through its various brands expired on the last day of
their active period, or on the following day. Bell's practice
during the relevant time was to claim unused funds the day after
the end of the active period where the account had not been
"topped-up" by the customer in order to extend the
activation period. If the card did not expire until the day
after the end of the active period, then Bell's practice
of treating the unused funds as forfeited as at the last day of the
activation period would have been in breach of contract.
The Court of Appeal's "Contextual" Approach to
At first instance, the court concluded – in the context of
a summary judgment motion – that the credits at issue expired
at the end of the last day of activation, such that Bell's
business practices did not constitute a breach of contract. On
appeal, the Court of Appeal agreed. Notably, in coming to this
conclusion, the Court of Appeal took into consideration a number of
interrelated documents on the basis that they collectively formed
the "contract" between the parties. In this regard, the
Court considered the initial agreement between the parties, the
expiry dates and terms of service set out in the prepaid cards, and
the PIN (personal identification number) receipts received when
customers topped up their account.
The relevant portions of the terms of service for the Bell
Mobility Brand and the Solo Mobile Brand read: "Value
deposited into your prepaid account is available as prepaid credits
for your Service and such credits are non-refundable,
non-transferable, and will expire after a specified time
period." The Virgin Mobile terms of service stated:
"Any top balance on your account after the expiry date is
forfeited and non-refundable." In addition, the PIN
receipt customers received on payment for the card or top-up read:
"$15 valid for 30 days" (Bell Mobility);
"$20 Good for 45 days" (Solo Mobility); and
"Funds expire, $15-30 days after activation"
The Court of Appeal held that the motions judge was entitled to
rely on documents other than the initial agreement, as these
documents collectively formed the contractual relationship between
the parties. The Court stated: "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
The Court further held that these interrelated agreements
contained contractual terms and therefore went beyond the
background factual matrix. In particular, the Court noted that
there "is a difference between considering the factual matrix
and considering the documents that make up the contract
itself." However, the Court observed that the factual
circumstances surrounding each customer's specific dealings
with Bell were not relevant to the contractual interpretation at
issue. The Court further stated that if the factual matrix did bear
on the interpretation of the contract at issue, then the matter
would not be suitable for a common issue in a class proceeding.
The Court denied the Plaintiff's attempt to read into the
contract texts messages and various other types of communications
that Bell sent to the Plaintiffs after the prepaid wireless cards
were purchased but prior to the expiry of the cards. The Court held
that since these communications were made after the time of
contractual formation, they did not form "part of the factual
matrix surrounding the formation of the contract. At their highest,
they were post-contractual representations." The Court held
that issues of misrepresentation or promissory estoppel could not
be resolved through a class proceeding, as they required individual
The Court of Appeal's ruling confirms the courts'
willingness to embark on a detailed factual and legal analysis in
the context of a summary judgment motion brought in the class
context, even to the point of assessing multiple document sources
for the purposes of determining the nature and scope of the
underlying contract. As such, the case provides support for
defendants who wish to dispose of a putative class action at an
early stage of proceedings on the basis that the underlying claims
lack legal or factual merit.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
To print this article, all you need is to be registered on Mondaq.com.
Click to Login as an existing user or Register so you can print this article.
It's not often that our little blog intersects with such titanic struggles as the U.S. presidential race – and by using the term "titanic" I certainly don't mean to suggest that anything disastrous is in the future.
J.J. v. C.C., is an interesting case in which the court held that an automotive garage owes a duty to minor children to secure the vehicles on the premises by locking the cars and safely storing the car keys...
In Irwin v. Alberta Veterinary Medical Association, 2015 ABCA 396, the Alberta Court of Appeal found that the "ABVMA" failed to afford procedural fairness to a veterinarian undergoing an incapacity assessment.
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).