In Sankar v. Bell Mobility Inc., the Ontario Court of Appeal (Court) granted summary judgment dismissing a certified class action against Bell Mobility Inc. (Bell) related to prepaid wireless services credits. The Court found the plain meaning of the interrelated documents that formed each customer’s prepaid phone contract with Bell was that unused prepaid funds expired at the end of the credits’ active period. Any claims based on post-contractual statements Bell made to customers were essentially claims for misrepresentation or promissory estoppel, neither of which could be determined as a common issue. In addition, while the Court explicitly did not decide whether Ontario has legislative jurisdiction over prepaid phone cards, it held that, in any event, the prepaid contracts at issue would not have violated Ontario’s regulations on gift cards because a customer’s right to activate prepaid credits did not expire.
PREPAID WIRELESS SERVICES CREDITS EXPIRE ON THE ACTIVE PERIOD’S LAST DAY
Bell, through each of its brands, sold a variety of prepaid wireless services credits with active periods ranging from 30 days to a year. The relevant part of the Bell Mobility and Solo Mobile terms of service stated: “Value deposited into your prepaid account … will expire after a specified time period.” The equivalent part of the Virgin Mobile terms of service stated: “Any Top Up balance on your account after the expiry date is forfeited and non-refundable.” In addition to the terms of service, the prepaid cards some customers received and receipts given to some customers contained statements such as “$15 valid for 30 days” or “Funds expire, $15 – 30 days after activation.”
The key issue was whether the prepaid credits expired at the end of the last day of their active periods, or the day after. The Court agreed with Bell that the credits expired on the last day of their active periods. In reaching this conclusion, it looked not only at each customer’s initial agreement, but also at other documents that formed part of the contractual relationship between the parties, including the terms on the phone cards and certain receipts some customers received. The Court held that modern contracts are often found in several documents, including both paper and internet documents. These interrelated documents must be read together to interpret the parties’ contract.
These interrelated documents did not form part of the factual matrix around each contract, but rather contained the contractual terms themselves that were common to all class members. The Court further found the factual matrix applicable to each individual customer’s dealings with Bell played no role in the interpretation of the contracts at issue. The Court stated that if the factual matrix played a role, then contractual interpretation would not be a suitable common issue because individual facts could vary the Court’s interpretation.
The Court rejected the plaintiff’s attempt to rely on text messages and other communications Bell made to its customers after the prepaid credits were purchased and prior to the expiry of the credits’ active periods. These communications were made after the contracts were formed and so were not part of the contracts’ factual matrixes. Instead, they were post-contractual communications. This issue could not be resolved commonly because it involved claims for misrepresentation or promissory estoppel, both of which require individual determination.
ONTARIO GIFT CARD REGULATIONS NOT VIOLATED
The Court stated it was not deciding whether Ontario has legislative jurisdiction over prepaid phone cards or whether such cards are subject to Ontario’s regulations on gift cards (the regulations). Nonetheless, it found that if the regulations applied to the prepaid phone contracts, the regulations did not invalidate the time limit on Bell’s prepaid wireless services credits. The regulations, made under the Consumer Protection Act, state in part that “[n]o supplier shall enter into a gift card agreement that has an expiry date on the future performance of the agreement.”
Bell’s prepaid wireless credits did not violate the regulations for two reasons. First, the regulations prohibit only an expiry date on the future performance of gift card agreements; they do not generally prohibit agreements with a limited duration. Here, the prepaid credits could be activated whenever the customer chose and so there was no expiry date in violation of the regulations. Once the credits were activated, they became legally permissible time-limited contracts. Second, once the prepaid credits were activated, Bell had fully performed its obligations under these agreements by providing customers with access to its wireless services for the agreed time-limited period. Thus, there was no longer any future performance that could expire.
CONTRACTS FORMED FROM GROUP OF DOCUMENTS
Companies should be aware that courts will look to multiple sources that constitute a contract, even if some of those sources are found in different places and in different types of media. Careful consideration should be given to the content of each document in a contract and how they interrelate. This ruling also affirms that class action contract claims can still be decided on summary judgment despite courts’ ability to consider the factual matrix surrounding individual contracts where appropriate.