



COURT OF APPEAL FOR ONTARIO

CITATION: Sankar v. Bell Mobility Inc., 2017 ONCA 295

DATE: 20170412

DOCKET: C60176

Strathy C.J.O., LaForme and Huscroft JJ.A.

BETWEEN

Celia Sankar

Plaintiff (Appellant)

and

Bell Mobility Inc.

Defendant (Respondent)

Proceeding under the
Class Proceedings Act,
    1992

Paul J. Pape and Shantona Chaudhury, for the appellant

Steve T. Tenai and Guy White, for the respondent

Heard: January 20, 2017

On remand from the order of the Supreme Court of Canada, dated
    October 20, 2016.

By the Court:


[1]



A.

Background

[1]

On April 4, 2016, this court dismissed the
    appellants appeal from a summary judgment motion dismissing her class action. Our
    reasons are reported at 2016 ONCA 242, 348 O.A.C. 58.

[2]

On June 2, 2016, the appellant brought an
    application for leave to appeal to the Supreme Court of Canada.

[3]

On September 15, 2016, the Supreme Court
    released its decision in
Ledcor Construction Ltd. v. Northbridge Indemnity
    Insurance Co.
, 2016 SCC 37, [2016] 2 S.C.R. 23.

[4]

On October 20, 2016, the Supreme Court neither
    granted nor denied leave to appeal, but directed that the case forming the
    basis of the application for leave to appeal be remanded to this court,
    pursuant to s. 43(1.1) of the
Supreme Court Act
, R.S.C. 1985, c. S-26
    for disposition in accordance with
Ledcor
.
[1]


[5]

Section 43(1.1) provides that the Supreme Court
    may, in its discretion, remand the whole or any part of the case to the court
    appealed from or the court of original jurisdiction and order any further
    proceedings that would be just in the circumstances.

[6]

Having received correspondence from counsel
    concerning the remand order, we requested written submissions on two issues:
    (a) the meaning and effect of the remand order; and (b) the appropriate
    disposition in light of
Ledcor
. We advised counsel that we would be
    prepared to entertain oral submissions, if requested. A hearing was held at
    counsels request, at the conclusion of which we reserved judgment.

[7]

These reasons will explain why we affirm our
    previous decision.

B.

The meaning and effect of the remand order

[8]

Counsel for the appellant argues that the
    remanded matter should be heard as a fresh appeal, but that the court could
    inform itself from its earlier reasons: referring to
British Columbia
    (Ministry of Forests) v. Teal Cedar Products Ltd.
, 2015 BCCA 263, 70
    B.C.L.R. (5th) 318, leave to appeal to S.C.C. granted, [2015] S.C.C.A. No. 363,
    appeal heard and reserved November 1, 2016, at para. 2;
Canada (Procureur général)
    c. Syndicat canadien de la fonction publique, section locale 675
, 2016
    QCCA 163, D.T.E. 2016T-121,
leave
to appeal to S.C.C.
    refused, [2016] S.C.C.A. No. 117, at para. 3; and
R. v. Polches
, 2008
    NBCA 1, 325 N.B.R. (2d) 262, leave to appeal to S.C.C. refused, 349 N.B.R. (2d)
    399 (note), at para. 18.

[9]

Disposition of the case in accordance with
Ledcor

    does not mean revisiting questions that
Ledcor
does not touch upon:
    see
Polches
, at para. 20. What it does mean is that, as a matter of
    fairness to the parties and judicial economy, we should reconsider our original
    decision in light of the authoritative pronouncement of the Supreme Court on
    issues that may have affected our disposition of the appeal. As this court has
    stated in
Deslaurier Custom Cabinets Inc. v. 1728106 Ontario Inc.
, 2017
    ONCA 293, at para. 14, [i]f the application of
Ledcor
mandates a
    different disposition, this court should alter its earlier decision in light of
    the teachings of
Ledcor
. If it does not, this court should affirm its
    earlier decision.

[10]

We turn to that question.

C.

The appropriate disposition in light of
Ledcor

(1)

The teachings of
Ledcor

[11]

Ledcor
s core instruction
    is that in cases involving the interpretation of standard form contracts, the
    standard of review is correctness because the factual matrix or surrounding
    circumstances generally have little impact on their interpretation: see
Ledcor
,
    at para. 32.

[12]

In
Ledcor
, at para. 22, the Supreme
    Court referred to this courts decisions in
MacDonald v. Chicago Title
    Insurance Company of Canada
, 2015 ONCA 842, 127 O.R. (3d) 663, leave to
    appeal to S.C.C. refused, [2016] S.C.C.A. No. 39 and in the instant case as
    examples of the application of a correctness standard of review to the
    interpretation of a standard form contract.

[13]

A second instruction of
Ledcor
is that
    the circumstances of the negotiation of standard form contracts will generally
    play no role in their interpretation, because by their very nature there is usually
    no negotiation of such contracts (at para. 28). Some elements of the
    surrounding circumstances of standard form contracts, such as the purpose of
    the contract, the nature of the relationship it creates, and the market or industry
    in which it operates, have a role in the interpretative process. However, this
    is only because they are the same for everyone who enters into the particular
    standard form contract, are not negotiated on a case-by-case basis and are not
    inherently fact-specific (at paras. 30, 31).

(2)

The Submissions of the Parties

[14]

The appellant acknowledges that this court
    applied the correctness standard of review expressed in
Ledcor
.

[15]

She submits, however, that
Ledcor
went
    beyond this courts decision in
Chicago Title
by emphasizing that the
    surrounding circumstances of a standard form contract play no role in its
    interpretation unless they are the same for everyone.

[16]

The appellant asserts that the motion judge incorrectly
    used the surrounding circumstances or factual matrix in interpreting Bells
    Terms of Service. He erred in considering parts of the factual matrix that were
    not common to all Bell subscribers and failed to consider provisions of Bells
    Terms of Service that were common to all subscribers and failed to give them
    proper legal effect. She submits that this court made the same errors.

[17]

The appellant says that the motion judge, and
    this court, failed to give proper legal effect to the notice provisions of
    Bells standard form contract, which she says made Bells notices to its
    customers, delivered after the contract was made, part of [Bells] contractual
    bargain. Thus, says the appellant, Bells notices sent to its customers, after
    they had topped up their accounts, advising them of the expiry date of their
    contracts, were contractual terms common to all customers and should have been
    considered by the motion judge.

[18]

The appellant also says that the motion judge
    erred in finding that the notices were simply subsequent communications and
    that this court erred in finding they were post-contractual representations.

[19]

The respondent acknowledges that the motion judge,
    who did not have the benefit of either
Chicago Title
or
Ledcor
,
    may have mischaracterized portions of Bells contractual terms as parts of the surrounding
    circumstances. However, it says, this court properly identified and relied on
    contractual terms which were ancillary to and contemplated by Bells Terms of
    Service and came into existence every time a customer bought a new top-up.

(3)

Discussion

[20]

In view of the appellants concession and the
    Supreme Courts acknowledgment that this court applied a correctness standard
    of review in this case, the real issue arising from
Ledcor
is whether
    we improperly used the surrounding circumstances to interpret Bells Terms of
    Service applicable to wireless customers. The appellant says we did and that we
    erred in failing to consider the expiry date Bell assigned to each
    subscribers contract, as reflected on the subscribers account and the
    reminder messages sent to the subscriber.

[21]

As a starting point, we observe that we noted at
    para. 26 of our reasons, after adopting a correctness standard of review, that
    in this case:

[T]he factual matrix applicable to the
    dealings between individual customers and Bell plays no role in the
    interpretation of the contract.
Indeed, if that did
    play any role, the interpretation of the contract would not be a suitable
    common issue, [in the class proceeding] because the answer could vary depending
    on the underlying facts. [Emphasis added.]

[22]

This was a class action and the motion judge was
    required to answer common issues that would apply to all class members. The issue
    was not Ms. Sankars claim against Bell for breach of contract. It was the
    determination of a common issue of whether Bell breached the contracts of all
    class members. The common issues were expressed as follows:

A(1)(a) Do the terms of the contracts between
    the defendant and class members require the defendant to wait until after the
    expiry of the prepaid credits before the prepaid credits can be seized?

A(1)(b) Did the defendant breach the terms of
    the contract by seizing prepaid credits before it was entitled to?

[23]

In order for the court to determine the common
    issues, the contract had to be the same for all class members and the answer had
    to be the same for all class members. A common issue cannot be answered by considering
    facts that vary from class member to class member.

[24]

That did not, however, preclude a finding that
    the contracts between the defendant and class members were found in
    documents, in addition to the Terms of Service, that were common to all class
    members, and that contained additional contractual terms. We noted this at paras.
    22-23 and 25 of our reasons:

In my view, in addition to the initial
    agreements, the motion judge was entitled to rely on other documents that
    formed part of the contractual relationship between the parties - the PIN
    receipts and phone cards referred to earlier. These, taken together with the
    agreements made when they subscribed to the service, formed the contract
    between every customer and Bell.
It was appropriate to answer the common
    issue based on these documents and indeed the answer would have been incomplete
    had they not been considered.

There is a difference between considering
    the factual matrix and considering the documents that make up the contract
    itself.
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 several "documents". And it is well-settled that where
    parties enter into interrelated agreements, the court is required to look to
    all those agreements to determine their construction.



In this case, the agreements were not contemporaneous, but they
    were interrelated. The initial agreement contemplated that customers would top
    up their accounts through Bell's websites, through the purchase of phone cards
    and through the purchase of PIN receipts. These were not simply part of the
    factual matrix - they contained contractual terms themselves. The motion judge
    properly had regard to these documents in order to determine the contract
    terms.
Because these terms were common to all class
    members (albeit in slightly different language depending on the manner of
    top-up), it was appropriate to address the issue as a common issue.
[Emphasis added.]

[25]

To summarize our reasons, Bells Terms of
    Service contemplated that customers like Ms. Sankar, who bought pre-paid
    services, would replenish the funds in their accounts by topping up from time
    to time. If the funds were not topped up, the balance would expire after a
    specified time period or after an expiry date, and any funds remaining in
    the account would be forfeited.

[26]

Bells Terms of Service did not define the
    specified time period or the expiry date. Nor did they set out the cost of
    top-ups, the amount of time that could be purchased or the particulars of the
    expiry date applicable to any given top-up.

[27]

These terms were left to be identified when a
    customer actually
purchased
a top-up. For example,
    one common way of topping up was by purchasing a phone card, or what the
    appellant described as a gift card. The customer who had been using prepaid
    services (and was, therefore, operating under Bells Terms of Service) would go
    into a store, choose a phone card, give it to the cashier and pay the
    appropriate amount of money depending on the number of days of service
    purchased. In return, the customer would receive a paper receipt containing a personal
    identification number, or PIN. The PIN receipt could then be used to top up
    in one of a number of ways, including on the customers phone or through Bells
    website.

[28]

As explained in our reasons, at paras. 14 and
    15, the information on the phone card and the receipt given to the customer,
    contained the details of the contract made by the customer at the time of top-up
     the purchase of a specified amount of phone time on Bells system at a
    specific price and with a specific expiry date.

[29]

The appellant does not complain about the
    accuracy of the expiry date identified when customers purchased their top-ups.
    Her complaint relates to the date communicated to customers by text message at
    some point before their top-ups were to expire.

[30]

The purchase of a prepaid card for valuable
    consideration was an individual contractual transaction that took place under
    the umbrella of the contractual relationship contained in the Terms of Service.
    This transaction was specifically contemplated by the Terms of Service and it
    was consistent with them. The appellant makes no assertion to the contrary.
    While customers could top up their accounts by other means, the methods, and
    the information conveyed at the time of purchase, were similar to what took
    place in a phone card transaction.

[31]

To use the language of
Ledcor
, no
    matter what method the customer used to top up her account, the method of calculating
    the expiry date and the manner in which it was communicated to the customer was
    "the same for everyone. The expiry date so calculated and communicated
    was consistent with the Terms of Service.

[32]

It was impossible for the motion judge to answer
    the breach of contract common issue without examining the terms of the top-up
    transaction. He could not find the answer solely in the Terms of Service and
    neither party suggests otherwise.

[33]

The appellants assertion is that instead of
    considering the documentation and communication that took place at the time of
    top-up, the motion judge should have considered the text messages sent to
    customers before the funds were about to expire. However, the text messages had
    no contractual effect. They were sent long after the top-up was made. If
    individual subscribers were confused by the language of the messages, as the
    appellant claims to have been, they may have a cause of action for
    misrepresentation, but it is unlikely that such a claim could be pursued in a
    class action.

[34]

The same is true of the appellants complaint
    about the expiry date that Bell assigned to the customers account, after the
    top-up was made. The customer may or may not have looked at his or her account
    page where this date was posted, may or may not have been confused and may or
    may not have relied on the date to delay making a further top up. If so, the
    customer might have an action for misrepresentation, but not for breach of
    contract.

[35]

In our view, the motion judge did not err in
    answering the breach of contract common issues as he did.

[36]

We acknowledge that we, and the motion judge,
    may have erred in suggesting that the brochures available in stores, and Bells
    website information, could be considered in determining the terms of the
    contract. Even assuming that such information might be admissible in an
    individual case, it could not possibly be common to all class members. That
    said, it is important to note that the information displayed in these locations
    was consistent with the information contained on the so-called gift cards and
    the PIN receipts and other methods of top-up. In other words, it only confirmed
    the contractual terms that were identified at the time of the top-up.

[37]

The motion judge found that the appellants complaint,
    like the complaints of many other class members, was based on Bells reminder
    messages. These messages were sent to customers shortly before the expiry of
    their active period to remind class members who had not already done so to
    top up before expiry. He said, at para. 4 of his reasons:

Many of the class members complaints were prompted in part by
    the defendant's reminder messages noting the expiration date. If these
    expiration dates were one day longer than what was stated
in the original top-up agreement
, and class members
    reasonably relied on this additional day to their detriment, the appropriate
    remedy would be either a breach of contract claim arguing promissory estoppel
    or an action in
misrepresentation 
    both of which would require proof of individual reliance and therefore not
    amenable to a class proceeding. This of course explains why neither remedy was
    alleged by the plaintiff or pursued herein. This class proceeding was certified
    as a straight-forward contractual and statutory interpretation case. I find
    that Bell prevails in both regards. [Emphasis added.]

[38]

He continued, at para. 28:

If any class member misunderstood the
    follow-up expiration date messages as meaning that unused funds would expire
    on Day 31 and would be seized on Day 32, and she relied on said messages to her
    detriment (by not topping up in time and forfeiting the unused balance) and the
    defendant did not grant a courtesy extension, then her remedy, as already
    noted, was two-fold: either a claim in breach of contract arguing promissory
    estoppel or a claim in
misrepresentation.
    But both of these remedies would require proof of individual reliance and
    neither would be amenable to a class proceeding. That is why, as I have already
    noted, neither promissory estoppel nor
misrepresentation
    was alleged by the plaintiff or pursued herein.

[39]

Referring to this observation, at para. 28, this
    court observed:

These communications [the expiration date
    messages] were not part of the factual matrix surrounding the formation of the
    contract. At their highest, they were post-contractual representations.

[40]

To the extent this suggested that the messages
    might have been considered as if they
were
part of
    the factual matrix, it was a mis-statement.

[41]

In any case, we continued, at para. 32:

As the motion judge noted, the appellants
    real complaint, and the real complaint in this class action, is that Bells
    subsequent communications to its customers  made after they had purchased
    their top-ups and as the top-up was about to expire  were misleading. That is
    because they may have created the impression that subscribers had an additional
    day after the end of the active period to "top up" before their funds
    expired. I agree with the motion judge that this was essentially a claim for
    misrepresentation or promissory estoppel, neither of which was before him,
    because neither was held to be amenable to resolution as a common issue in the
    class proceeding.

[42]

In our view, the communications to which the
    appellant refers, be they in the form of reminder messages or expiry dates
    shown on the customers account pages, were of no contractual effect and could
    not have been referred to, either in interpreting the contract or in answering
    the common issues.

D.

Conclusion

[43]

For these reasons, having reconsidered our
    decision in light of
Ledcor
, we affirm our decision.

[44]

The parties may make written submissions as to
    costs. The respondent shall file its submissions within 15 days of the release
    of these reasons and the appellant shall have 10 days within which to reply.
    The submissions shall be limited to three pages, exclusive of costs outlines.

Released: G.R.S.  April 12, 2017

George R. Strathy C.J.O.

H.S. LaForme J.A.

Grant Huscroft J.A.





[1]

The remand order stated:

Pursuant to s.
    43(1.1) of the
Supreme Court Act
, the case forming the basis of the
    application for leave to appeal from the judgment of the Court of Appeal for
    Ontario (Toronto), Number C60176, 2016 ONCA 242, dated April 4, 2016,
    is remanded to the Court of Appeal for Ontario for disposition in accordance
    with
Ledcor Construction Ltd. v. Northbridge Indemnity Insurance Co.
,
    2016 SCC 37.


