TORONTO, Nov. 27, 2014 /CNW/ - In a decision released this week by The Honourable Madam Justice Conway of the Ontario Superior Court of Justice, two class proceedings were certified against Bell and TELUS concerning the practice of "rounding up" calls to the farthest minute.
The rounding up practice affected millions of Canadians and meant that, for example, a call lasting one minute and one second would be billed as a two-minute call. Customers who purchased a fixed number of minutes for a set fee (e.g. 100 local minutes for $25) would deplete their talk time minutes much faster than represented, after which they would incur additional per-minute charges at a higher rate. While Bell and TELUS had previously billed customers on a per-second basis, in mid-2002 they changed their practices so that customers were billed on a per-minute basis, with calls being rounded up to the farthest minute. This change was not disclosed by Bell or TELUS until the end of the Class Periods.
"This is an important decision for everyday consumers. They have a right not to be misled when entering a standard form contract. There is hope with this decision that mobile phone transactions will become more transparent. Justice Conway's reasons reaffirmed one the foremost policy goals of the Class Proceedings Act, by providing access to justice to millions of cell phone users who were unwittingly charged excessive and unjustified fees in breach of the express terms of their contracts", said Joel Rochon, partner at Rochon Genova LLP. "That punitive and aggregate damages have been certified sends a strong message to the major actors in the cell phone industry that this sort of conduct will not be tolerated."
The representative plaintiff Avraham Wellman, a TELUS subscriber since 2006, said, "One of our main objectives was to ensure that cell phone companies are much more honest and open about their billing practices."
In certifying the actions, Justice Conway found that there was commonality to the issues, because all class members' plans provided for a set number of minutes for a fixed price, with charges for additional minutes. In addition, each customer signed a written agreement and was subject to standard terms and conditions that applied uniformly to all customers, and the written documents referred to the number of minutes purchased but did not disclose the "rounding up" practice which applied to all class members.
Justice Conway also found that the plaintiffs had pleaded a breach of an express term of the Bell and TELUS contracts, which promised a specific number of "minutes" that were not provided. She held that the contracts could be interpreted on a common basis because there was a common standard contract and the external context of that agreement was typical across members of the class.
On the issue of preferable procedure for addressing the claims of class members, Justice Conway stated that:
Viewed through the lens of judicial economy, behaviour modification and access to justice, there is no doubt that a class is the preferable procedure for this action. These are large classes of customers, each of whom has a relatively small potential claim. A class action would achieve judicial economy. Without a class action, the class members will not obtain access to justice. The action seeks to challenge a systemic practice and achieve behaviour modification.
The class actions were certified on behalf of Canadian residents who subscribed to Bell services and were billed by the minute between August 18, 2006 and October 1, 2009; and Ontario residents who subscribed to TELUS services and were billed by the minute between August 18, 2006 and July 1, 2010. Certification does not assess the merits of the cases, and the allegations raised in the proceedings have not yet been proven in court.
The class members are represented by Joel Rochon and Suzanne Chiodo from Rochon Genova LLP, and Eli Karp from Merchant Law Group LLP.
SOURCE: ROCHON GENOVA LLP
For further information: Suzanne Chiodo at (416) 363-1867 or by email at [email protected]; web site: www.rochongenova.com