News

Peter De Wolf has been a loyal Bell ExpressVu customer for years but when he was hit with a $19 administrative charge for failing to pay his monthly bill on time, he balked.

First, he took the company to small claims court near his home in Braeside, Ont., near Ottawa. Then he launched a class action lawsuit in Toronto on behalf of Bell ExpressVu's 1.7-million customers nationwide alleging the administrative fee amounted to an illegal interest rate.

Now, after nearly three years of legal wrangling, Mr. De Wolf has scored a key victory. In a decision made public this week, an Ontario Superior Court judge certified the lawsuit as a class action and criticized Bell ExpressVu for raising “straw man” arguments to block the suit.

“We're very, very glad that after two and a half years, basically, to see it finally moving ahead,” said Mr. De Wolf, 54, who works as a journalist for a group of weekly newspapers in Arnprior, Ont. “It's a huge step forward.”

Mark Langton, a Bell Canada spokesman, said the company views the case “as completely without merit.” He added that Bell ExpressVu will be pushing for the case to be dismissed at an upcoming hearing.

The saga began in the summer of 2004 when Mr. De Wolf received his regular monthly bill, around $50, from Bell ExpressVu for his satellite television service. He was about to go away on holiday for a month and put the bill aside. Shortly after his return, Mr. De Wolf received another bill that included a 2 per cent interest charge on the outstanding amount plus a $19 administration fee.

“I called them and said, ‘I'm not paying the $19 fee,' ” he recalled Thursday. He refused to pay for the next four months, piling up about $100 worth of administrative charges and interest. When Bell ExpressVu threatened to cut off his service, Mr. De Wolf paid and then filed a lawsuit in small claims court seeking $7,700 in damages.

He said Bell's lawyers didn't appear to take him seriously and offered to settle the case for $1. “They thought they might be able to double that and offer $2,” he added.

Mr. De Wolf withdrew the lawsuit and took the case to a Toronto law firm that specializes in class actions. The proposed class action was launched in September, 2005, naming all Bell ExpressVu customers as potential defendants.

In the suit, Mr. De Wolf alleged the monthly administrative fee coupled with interest charges was illegal. He alleged the two together meant that Bell ExpressVu was charging more than 60 per cent in annual interest, which violated the Criminal Code. According to court filings, about 33,000 ExpressVu customers are charged the administrative fee each month. The fee has since been raised to $25 and it is comparable to late fees charged by other companies.

Bell ExpressVu argued the fee was not an interest charge but was based on the cost the company incurred collecting overdue bills. The company also argued the class action shouldn't proceed because each customer has a different account and incurs different fees. In general, allegations in class actions must apply to all potential defendants in order to proceed to trial.

Mr. Justice Paul Perell rejected the company's arguments and certified the case. The judge said he regarded Bell ExpressVu's argument “as demonstrating the informal logical fallacy that students of logic know as ‘ignoratio elenchi,' which is the error of misstating an opponent's argument and then refuting the misstated argument and not the argument genuinely in dispute. This is sometimes known as a ‘straw man' argument.”

Judge Perell said Mr. De Wolf had demonstrated that there were enough common issues for all ExpressVu customers.

Mr. De Wolf said he was pleased with the ruling and he is looking forward to the next round in the legal battle, which comes in April with a hearing on legal motions. For now, though, he remains a loyal Bell ExpressVu customer. And his monthly account is fully paid.