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 911 operator.
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 damages.
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