CITATION: Opara v. Bell Canada, 2015 ONSC 2169

COURT FILE NO.: CV-09-379307

DATE: 20150414

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

VICTOR OPARA

Plaintiff

– and –

BELL CANADA

Defendant

Unrepresented and acting in person

Hane Chung and Lisa Alleyne for the Defendant

HEARD: March 25, 26, 27 and April 1, 2015

REASONS FOR JUDGMENT

Diamond j.:

[1] In this proceeding, the plaintiff Victor Opara claims, inter alia, $60,000.00 in general damages and $50,000.00 in special damages for breach of contract and misrepresentation against the Defendant Bell Canada (“Bell”) arising from what the plaintiff maintains was a failure on Bell’s part to maintain a six month seasonal suspension (as that term is defined hereinafter) of the plaintiff’s phone number.

[2] Bell denies any liability asserting that as the plaintiff’s account was in arrears, and takes the position that it was justified in terminating the seasonal suspension and ultimately disconnecting the plaintiff’s telephone services.

Factual Background

[3] The plaintiff is a lawyer currently practicing in the city of Toronto, Ontario. After being called to the Ontario bar in 2005, he proceeded to take an additional year and obtain his LL.M. degree in the State of New York. By 2006, the plaintiff returned to Toronto with a view to setting up his law practice and developing a client base.

[4] By the late fall of 2006, the plaintiff had rented a small office located at 600 Bay Street, Suite 301 in downtown Toronto. As part and parcel of setting up his new practice, the plaintiff contacted Bell with a view to subscribing to Bell’s telephone services and securing a phone number for his law practice.

[5] There is no dispute on the record before this Court that the plaintiff subscribed to Bell’s residential telephone services, and obtained the (416) 593-8425 telephone number which he planned to use for his law practice. I note that the last four numbers of that phone number - 8425 - spell out ‘VICK’ which was something the plaintiff requested from Bell for self-promotional purposes.

[6] Where the parties differ on this preliminary issue is whether the plaintiff in fact advised Bell that he would be using this residential phone number for his law practice (i.e. for business purposes). The plaintiff testified that during his initial phone call with a Bell sales agent, he advised the sales agent of his said intentions. Bell denies ever receiving such a request. Fortunately, very little turns upon this divergence in the evidence.

[7] The plaintiff testified that at no point during this initial phone call with the sales agent was he made aware of the existence of Bell’s Terms of Service, or any terms of service governing the contractual relationship between Bell and its customer(s). The plaintiff took the position in closing submissions that the terms of the “contract” between the parties amounted to no more than what was discussed during his initial phone call with the sales agent. While I will have more to say about this issue hereinafter, as a lawyer who subsequently sought to avail himself of other services offered by Bell – not discussed in the initial phone call but described in greater detail below - I find it odd, and bordering on disingenuous, for the plaintiff to take such a position.

[8] In any event, the residential phone line was installed and set up by November 28, 2006. Exclusive of the initial installation costs and any potential additional monthly charges (long distance fees, etc.), the plaintiff agreed to pay a sum of $43.58, inclusive of GST and PST, on a monthly basis for the use of the phone number.

[9] The plaintiff initially set up a payment plan for his phone line by way of monthly, pre-authorized charges to his credit card account. He testified, albeit for different reasons addressed hereinafter, that during the 2006-2008 period, he was using multiple credit cards. A review of the documents produced by Bell disclose that the credit card provided by the plaintiff to Bell for the monthly, pre-authorized payments was Visa #4510 1423 0008 8742.

[10] Over the next few months, the plaintiff’s law practice was, to use his words, “not busy”. As a result, he sought and obtained the position of duty counsel in the Brampton courthouse. In taking on that role, he was spending much more of his time out of his office.

[11] The plaintiff did not see the need to continue to incur the monthly expenses associated with his phone number given that, inter alia, in his assessment, his time was being put to good use in being duty counsel in Brampton. The plaintiff thus contacted Bell to ask about an additional service Bell offered known as a “seasonal suspension”. Essentially, in exchange for a one-time fee of $50, a Bell customer could suspend the operation of his/her phone number, with a view to maintaining that phone number and resuming his/her account after the six-month period. During that time, Bell would provide an outgoing message to any incoming callers providing those callers with a “forwarded” contact number at which the customer could be reached.

[12] It is not disputed that during the relevant period, it was Bell’s practice to only provide the seasonal suspension option to those customers whose accounts were in good standing, i.e. not in arrears. I will have more to say about this practice later in these reasons.

[13] At the plaintiff’s request, the six month seasonal suspension of the plaintiff’s phone number was to commence on or about January 28, 2007. Bell arranged for an outgoing message to forward all calls to the plaintiff’s number to his cell phone number (647) 893-8425 (once again, ‘VICK’). The $50.00 service fee for arranging the seasonal suspension was billed on January 28, 2007 and paid by way of the plaintiff’s credit card.

[14] In or around mid-May 2007 (i.e. during the currency of the six-month seasonal suspension), with a view to creating more exposure for his legal practice the plaintiff entered into a contract with Canpages for the provision of a printed advertisement for “Opara Law” in the 2008 Yellow Pages phone book. The purchase price for the year-long advertisement was $17,362.92, with payment of that sum being arranged by the plaintiff, once again, through monthly pre-authorized credit card withdrawals. Those monthly installments were to commence in August 2007, which coincided with the end of the six-month seasonal suspension of the plaintiff’s phone number.

[15] Up to that point, the plaintiff had taken no issue with any of the services provided by Bell. No further monthly charges were invoiced by Bell to the plaintiff between January-July 2007 to run with the six-month seasonal suspension.

[16] At the end of the six-month seasonal suspension in July 2007, Bell’s monthly invoicing resumed and pursuant to his August 2007 statement, the sum of $42.78 was due and owing. At that time, the plaintiff’s pre-authorized credit card payment plan was still in effect.

[17] For some reason, when the plaintiff reviewed his September 2007 credit card statement(s), he noticed that Bell had withdrawn the sum of $68.18, which to the plaintiff’s mind represented an unauthorized overpayment of $25.40. While this apparent overcharge was arguably minor in nature, the plaintiff’s reaction was anything but measured. The plaintiff testified that on or about September 24, 2007, he called Bell, spoke to a customer service representative, and was advised that (a) for some reason Bell was having difficulty in processing the plaintiff’s pre-authorized credit card payments, and (b) the overcharge was due to alleged “penalty fees” for the delay in processing the credit card payments.

[18] The plaintiff did not stop there. On October 15, 2007, the plaintiff prepared and delivered a letter to Bell, written on his firm letterhead, accusing Bell to have “willfully, intentionally, negligently or otherwise” overcharged his Visa account. He further characterized Bell’s conduct as amounting to “interference with his finances and property for which he had civil actions against Bell in tort”, and threatened to commence a lawsuit. In exchange for not commencing such a lawsuit, the plaintiff made the following demands upon Bell:

(a) an immediate reversal of the overcharges;

(b) compensation in the amount of $5,000.00 for the hours he spent on the matter, plus damages for “embarrassment, pain and mental anguish”, and

(c) a written apology.

[19] The plaintiff cancelled his pre-authorized credit card payments. To describe the plaintiff’s response as an overreaction is an understatement. While I am prepared to accept that an overcharge of $25.40 may have impacted upon the plaintiff’s financial situation given his efforts to develop a legal practice, any such impact was minor and simply could objectively substantiate the steps taken by the plaintiff.

[20] Fortunately for the plaintiff, Bell did not treat its apparent error as minor as I have described above, and acted upon the plaintiff’s correspondence. On October 18, 2007, a Bell agent contacted the plaintiff to offer an apology. On November 14, 2007, in response to the plaintiff’s demand for $5,000.00 in compensation, Bell offered the plaintiff a credit equivalent to two months; free phone services, an offer which the plaintiff readily accepted.

[21] Bell produced a “Vendor/Ticket Owner” slip dated November 14, 2007 which acknowledged the receipt of the plaintiff’s October 15, 2007 correspondence, his subsequent telephone conversation with Bell’s customer service representative, and the offer and acceptance of the two months’ credit.

[22] As a result, the plaintiff’s November 20, 2007 account statement contained a credit in the amount of $69.90. Unfortunately, as the plaintiff had cancelled his pre-authorized credit card payments, it appears that notwithstanding the said credit, there was still an outstanding balance.

[23] I pause to note that according to the Opara Law bank statements produced by the plaintiff, by September 2007 the payments which he sent to Canpages for the monthly Yellow Pages invoices were all returned N.S.F. In fact, no further payments were made by the plaintiff to Canpages after November 1, 2007 which is well before the events leading to the termination of the plaintiff’s Bell account and phone number set out below. Simply put, based upon the very limited documentation produced by the plaintiff in this proceeding (and the fact that the plaintiff was required to use “multiple credit cards”), Opara Law did not appear to meeting its financial obligations during the 2006-2008 period.

[24] In early 2008, the plaintiff found employment with the firm of Heydary Hamilton PC. He was to commence employment at his new firm in or around mid to late January 2008, although he testified that he spent the first 1-2 months in “training” and learning under the tutelage of other lawyers at the firm.

[25] Given that he would be relocating to a new firm, the plaintiff contacted Bell to request another six-month seasonal suspension of his phone number. While the plaintiff would be part of a new firm, with new contact information (416-972-9001, extension 236), the plaintiff understandably wished to capture and maintain any goodwill or potential client base developed through his original phone number.

[26] It is at this point in the chronology where the evidence submitted on behalf of both parties lacks clarity or particulars, and appears confusing at best. Bell has produced a complete history of its invoicing for the plaintiff’s account since installation in late November 2006. The plaintiff only produced copies of his Bell invoices or statements commencing only in February 2008, and some of those invoices or statements are incomplete. According to the plaintiff, this was due to a relocation of his practice and two floods of his offices, which adversely impacted his ability to retrieve and produce documentation.

[27] The format of those monthly statements produced by Bell for the plaintiff’s account changed between September/October 2007. According to the testimony of Bell’s representative Tamara Wattley-Wisdom (who is a member of Bell’s executive team but had no personal knowledge of the events giving rise to this legal proceeding), Bell changed from the previous “Legacy Billing” statements to the “One Bill” statements around this time.

[28] As stated above, the plaintiff produced sporadic pages from various monthly statements commencing in February 2008. I note that these documents match their corresponding pages in the One Bill invoices produced by Bell.

[29] According to the One Bill statements, the plaintiff’s call requesting another six-month seasonal suspension occurred on or about January 14, 2008. The suspension was to last until mid-July 2008.

[30] As previously stated, it was Bell’s practice not to permit any seasonal suspensions unless the customer’s account was in good standing. A review of the invoices produced by Bell discloses that even with the two month credit applied to the plaintiff’s account, as at December 20, 2007, the sum of $86.37 was due and owing, and as at January 20, 2008 (less than a week after the plaintiff requested the seasonal suspension), the sum of $131.15 was due and owing. This latter sum excluded the $50.00 seasonal suspension fee, which for billing purposes was not posted until the plaintiff’s February 20, 2008 statement and remained unpaid.

[31] According to Ms. Wattley-Wisdom, although she had no personal knowledge of the phone call made by the plaintiff requesting the second six-month seasonal suspension, her “best guess” as to why the seasonal suspension was permitted in the face of an outstanding balance on the plaintiff’s account was likely due to Bell’s recent conversion from an old billing format (Legacy) into the new format (One Bill), and it appearing that the zero balance owing on the Legacy platform was the only balance consulted (i.e. not the actual balance which had been transferred to the One Bill platform). Ms. Wattley-Wisdom referred to these issues as resulting “systematic errors”.

[32] For his part, the plaintiff was adamant during his testimony that his account was fully paid as at January 14, 2008. Unfortunately, other than further correspondence he delivered to Bell in mid-July 2008, the plaintiff did not produce any other documentary evidence to substantiate his position that as of January 14, 2008 his account was not in arrears.

[33] The pages from the various monthly statements which the plaintiff was able to produce (which only start in February 2008) confirm an outstanding balance, and the plaintiff did not produce any copies of his credit card statement(s) evidencing any payments to prove the balance was in fact paid.

[34] The plaintiff’s letter dated July 15, 2008was drafted on Heydary Hamilton PC letterhead and delivered to Bell. In this letter, the plaintiff summarized – in some detail – a series of events between January-June 2008 which ultimately led to what the plaintiff claims was the unlawful termination of his phone number and Bell account.

[35] In his testimony, the plaintiff described all of the events as summarized in his July 25, 2008 letter. To begin, he stated that his request for the second seasonal suspension took place during a January 10, 2008 phone call with a Bell sales representative (and not on January 14, 2008). I do not believe that much turns upon the four intervening days. However, the plaintiff further testified that during that same phone call (whenever it occurred), he was asked by Bell’s sales agent to pay the corresponding $50.00 fee, which he says he paid immediately with his credit card, although not specifying which credit card was used. The plaintiff further testified that he asked Bell to ensure the outgoing message forwarded any calls to his cell phone number, just as he had done one year earlier during the original seasonal suspension.

[36] Bell produced copies of what it claimed to be any and all Customer Service Management Memos made on the plaintiff’s account file from September 2007 - July 2010. Unlike the November 14, 2007 Vendor/Ticket Owner, these notes are contained in a running, chronological list, and are either automatically created by the Bell system or entered by a Bell agent. As explained by Ms. Wattley-Wisdom, in the event any phone calls made to Bell agents are recorded, they are only recorded for quality and coaching/training purposes. In the event a recorded phone call is then used for that purpose (i.e. to further train an agent), it is thereafter deleted within approximately one month.

[37] Ms. Wattley-Wisdom further stated that while Bell asks its agents to input notes into the Customer Services Management Memos system, each agent seems to retain some discretion to do so as not all issues or questions raised by Bell customers would objectively warrant a note to be taken.

[38] As a result, there is a somewhat large discrepancy between the plaintiff’s evidence surrounding the phone calls he made to Bell in 2008, and Bell’s records evidencing notes of any such phone calls. As an example, while Bell acknowledges the plaintiff’s request for a second seasonal suspension (having invoiced the plaintiff the $50.00 fee), there is no note made into the Customer Service Management Memos system other than a January 11, 2008 bald entry stating “change billing address”.

[39] In any event, shortly after the plaintiff spoke to the Bell agent in January 2008 to request the second seasonal suspension, he testified that within a few weeks, after leaving his church on a Sunday morning he was approached by a fellow church member who told the plaintiff that upon calling his phone number, there was an automatic message indicating that the number was “out of service”. This church member did not testify at the trial of this action, and the plaintiff did not even provide Bell (in his July 15, 2008 letter) or this Court (during (his testimony) with the name of this individual. Accordingly, such evidence must be afforded little to no weight.

[40] However, the plaintiff did testify that upon speaking with his church member that Sunday, the plaintiff himself called his phone number and heard the same “out of service” outgoing message. He then contacted a Bell agent shortly thereafter, who confirmed that the latest Bell invoice was “sent in error” and that the seasonal suspension was in place. There is no record of any such conversation in the Customer Service Management Memos.

[41] When the plaintiff subsequently called his own phone number, he heard the correct outgoing message forwarding calls to his cell phone number. In cross-examination, the plaintiff was asked why he would have requested Bell to forward calls to his cell phone number when he was then employed at Heydary Hamilton PC. He then responded that he subsequently called a Bell agent again to make that exact request and have the outgoing message changed to forward all calls to his new direct line at Heydary Hamilton PC. While this evidence only came out during the plaintiff’s cross-examination, it is contained in his July 15, 2008 letter. Once again, there is no record of any such subsequent conversation in the Customer Service Management Memos.

[42] For some reason, even though Bell invoiced the plaintiff for the $50.00 seasonal suspension fee, Bell continued to charge the plaintiff for monthly phone services in the face of that suspension. Ms. Wattley-Wisdom could not explain why these monthly services were being charged in the face of a seasonal suspension, and acknowledged the continued existence of what appeared to be “systematic errors”.

[43] The plaintiff testified that even though his billing address did not change, he never received his January 2008 statement. He nevertheless maintained that his account was fully paid at that time. He stated that when he received his February 20, 2008 statement, he was shocked to see the sum of $181.22 owing (which included the $50.00 seasonal suspension fee). The plaintiff stated that he once again phoned a Bell agent, who confirmed to him that his account was under a seasonal suspension, and a “backdoor investigation unit” would look further into the matter. Once again, there is no record of this phone conversation in the Customer Service Management Memos produced by Bell.

[44] More “systematic errors” occurred in the handling of the plaintiff’s account. In March 2008, Bell sent two separate documents to the plaintiff conveying two separate messages. In or around early March 2008, Bell sent a Disconnection Notice to him advising that his account was “seriously past due”, and in the absence of payment of the overdue amount of $73.51 on or before March 17, 2008, his telephone services would be disconnected.

[45] On March 20, 2008, Bell issued the plaintiff’s monthly statement showing an outstanding balance of $217.25, including a previous balance owing of $181.22. The plaintiff was understandably quite confused, especially given his contention that his account was fully paid before the seasonal suspension commenced. When asked in cross-examination to try and explain this discrepancy, Ms. Wattley-Wisdom could not offer any such explanation.

[46] In the face of Bell demanding two different amounts from the plaintiff in the same month, he called a Bell agent on April 2, 2008. For once, there is a note in Bell’s Customer Service Management Memos inputted by an agent on April 2, 2008 which stated “customer had a billing issue…transferred to Customer Service Department”. While this note does confirm that a telephone conversation occurred, it is unclear whether the plaintiff called Bell or Bell called the plaintiff. No other information was inputted on that date.

[47] The plaintiff testified that he spoke to an agent named “Terry” and received a confirmation number 504-2634. Ms. Wattley-Wisdom testified that while she had no personal knowledge of the phone call(s) between the plaintiff and Bell on April 2, 2008, the confirmation number was consistent with the practice in place at the time. The plaintiff testified that during that phone call, he questioned why he was receiving invoices at all given the operation of the seasonal suspension, which the sales agent confirmed.

[48] It was around this time when the plaintiff stated he began to receive “incessant and persistent” phone calls from Bell’s collection department seeking payment of the outstanding account. Bell continued to deliver monthly statements to the plaintiff which the plaintiff admitted he never paid given his stated position.

[49] It was not until the June 20, 2008 bill when a credit of $113.31 was applied by Bell to the plaintiff’s account, rendering the amount due to be $182.31. However, by that time, the plaintiff’s phone number and telephone service had already been disconnected pursuant to a Termination Notice delivered to the plaintiff on or about May 23, 2008 requiring payment of $292.47 (an amount which Ms. Wattley-Wisdom admitted was inflated) within 10 working days.

[50] According to Ms. Wattley-Wisdom, the seasonal suspension and outgoing message on the plaintiff’s phone number would have been in effect until the plaintiff’s telephone line was suspended on or about April 16, 2008. The plaintiff offered no evidence to the contrary on this issue.

[51] Bell relies on various provisions in its Terms of Service to support the steps it took prior to the disconnection of the plaintiff’s telephone services. In particular, Bell relied upon excerpts from Article 22 of its Terms of Service whereby it must provide any customer with “reasonable advance notice” of the reason for the proposed suspension or termination, and make “repeated efforts to advise” a customer that termination is imminent. According to Bell’s Customer Service Management Memos, up to four calls to the plaintiff were made on March 24, April 7 and April 11, 2008. However, each note entered by the Bell agent references a call made to the plaintiff’s “residence” without any response. The only “residence” on file for the plaintiff was the very phone number that was under a seasonal suspension. Ms. Wattley-Wisdom could not explain this apparent discrepancy, although she indicated in cross-examination that the plaintiff could have been contacted on a different number.

[52] As previously stated, the only document relied upon in support of the plaintiff’s account of the 2008 events is his July 15, 2008 letter sent to Bell. Curiously, Bell has no record of receiving that letter despite the plaintiff producing fax confirmation reports evidencing successful delivery. Although the letter was delivered after the plaintiff’s telephone services were disconnected, Bell did issue a subsequent statement on July 20, 2008 seeking payment of what it claimed to be outstanding.

[53] When confronted in cross-examination with his failure to produce any other documentation to substantiate his claims, the plaintiff testified that he did not know at that time (i.e. 2008) that he would have been required to maintain these records for the purpose of a legal proceeding as he was still a “young lawyer”. While ignorance of the law is of course no excuse, by January 2008 the plaintiff had been practicing for nearly two years. Further, the plaintiff obviously had copies of whatever relevant documents were in his possession at the time of drafting his July 15, 2008 correspondence, as those documents assisted him with the preparation of that letter.

[54] The plaintiff testified that he never resumed payment of the invoices due to Canpages for his Opara Law Yellow Pages advertisement due to the fact that his phone number no longer existed, and “what would be the point”. Such a position makes little sense. The seasonal suspension was only cancelled in April 2008, and as stated above the plaintiff ceased any payment towards his Canpages invoices by November 2007, more than two months before he even requested the second seasonal suspension.

[55] As a result, the plaintiff was sued by Canpages for the outstanding balance being $15,289.04. Canpages issued a statement of claim on September 25, 2008. That action was resolved by way of the plaintiff paying the all-inclusive sum of $4,000.00 to Canpages on or about March 23, 2010.

[56] Finally, I note that at the opening of trial, the plaintiff sought leave to introduce what he claimed were his “typewritten notes” of the 2007-2008 events. For reasons explained in my handwritten endorsement dated March 25, 2015, leave was refused as the plaintiff was in breach of, inter alia, Rule 31.07 (having refused to produce those notes at his examination for discovery) and the subsequent Order dated December 31, 2014 of Madam Justice Matheson.

Issues

[57] In the plaintiff’s Statement of Claim, he seeks general damages in the amount of $60,000.00 for breach of contract and misrepresentation. The plaintiff also seeks special damages in the amount $50,000.00, and “pecuniary damages related to his possible future loss of business profits, goodwill and reputation.”

[58] Before any consideration of the plaintiff’s alleged damages, I shall first analyze his claims for breach of contract and misrepresentation.

a) Breach of contract

[59] The terms of the “contract” which the plaintiff alleges Bell has breached are not pleaded with any particulars in his Statement of Claim. From a generous review of his pleading, it appears the plaintiff maintains the position that the “contract” relates to Bell’s agreement to provide the second seasonal suspension in exchange for the $50.00 fee.

[60] In closing submissions, the plaintiff stated that Bell’s Terms of Service do not apply to the contractual relationship between the parties, as he was never made aware of the existence or application of those Terms of Service during the initial (i.e. the fall of 2007) phone with Bell’s sales agent establishing his phone number and account. To quote the plaintiff, he takes the position that the terms of his contract with Bell “are whatever was discussed with the sales agent on the phone” in the fall of 2007.

[61] The only evidence of the contents of that initial phone conversation relate to the plaintiff’s request and establishment of his phone number, and the monthly service fee he agreed to pay for the use of that phone number. For the plaintiff to maintain that those “terms” comprise the entire agreement between the parties makes little to no sense. This is due to the fact that the Terms of Service amount to a regulatory contract between Bell and its customers. As held by Justice Strathy (as he then was) in Penney v. Bell Canada 2010 ONSC 2801 (S.C.J.), the terms of this regulatory contract have been set by the Canadian Radio-Television and Telecommunications Commission (“CRTC”) to “take into consideration the interests of consumers, of service providers like Bell, and of competitors in the telecommunications industry”.

[62] A regulatory contract such as Bell’s Terms of Service is not a private contract. None of Bell’s Terms of Service can be negotiated, and they cannot be altered without CRTC approval. To quote Justice Strathy in the Penney decision:

“These Terms of Service, which have been approved by the CRTC, set out terms of the contract between Bell and its customers. They can be thought of as a regulatory contract because the terms cannot be altered, by either Bell or its customer, without the approval of the CRTC. Similarly, the rates charged by Bell to its customers must be approved by the CRTC. Bell is not permitted to modify or even waive those rates without CRTC approval.”

[63] On each and every One Bill invoice sent to the plaintiff, including copies of the various excerpts from those One Bill invoices produced by the plaintiff at trial, there is a notation under the heading “Terms and Conditions” directing customers to “refer to www.bell.ca/serviceterms”. Bell’s Terms of Service can be located and reviewed at that website address.

[64] On the September 20, 2007 One Bill invoice - one of the invoices reviewed by the plaintiff when he composed his initial October 15, 2007 correspondence - the following notation appears:

The application Bell filed for local telephone service forbearance in your area has been approved by the CRTC. As a Bell customer, your services and equipment won’t change and we can provide you with more great offers. The Unregulated Terms of Service (UTOS), mailed to you in June, will now apply to your newly unregulated services and are available on bell.ca/terms.

[65] I therefore find that Bell’s Terms of Service do apply and govern the contractual relationship between the parties. Even if the Plaintiff’s argument was possible of being accepted, Bell argues that this Court should enforce the principle that there is implied acceptance where continued use of services is accompanied by notice of Terms of Services within invoices and/or statements. In support of its position, Bell relies upon the decision of the Supreme Court of Canada in Saint John Tug Board Co. Ltd. v. Irving Refining Ltd., [1965] S.C.R. 614, and specifically the following excerpt (my emphasis in bold):

Neither the absence of an express agreement nor the fact that the respondent did not consider itself liable to pay for the “stand-by” services after July 31 can, however, be treated as determining the issue raised by this appeal. The question is not whether the appellant is entitled to recover from the respondent under the terms of an express or recorded agreement, but rather whether an agreement is to be implied for the respondent’s acquiescence in the Tug’s services being supplied for its benefit during the period for which the claim is now made.

In my view the respondent must be taken to have known the Ocean’s Rokswift was being kept “standing by” for its use until the end of February 1962, and to have known also that the appellant expected to be paid for this special service at the per diem rate specified in the monthly invoices which were furnished to it, but the matter drifted from day to day without any move being made on the respondent’s behalf to either dispense with the service or complain about the charge. I do not think it was unreasonable to draw the conclusion from this course of conduct that the respondent was accepting the continuing special services on the terms proposed in the March letters and the appellant is accordingly entitled to recover the sums charged in the invoices up to and including the month of February 1962 (subject to the adjustment as to handling charges) as being money due pursuant to a contract which was concluded by the respondent’s acquiescence.

[66] The plaintiff received notice of Bell’s Terms of Service each and every month in the invoices. Included in those Terms of Service was the seasonal suspension service, an option of which the plaintiff availed himself when necessary for reasons described herein. It therefore cannot lie in the plaintiff’s mouth to disavow himself of the existence and application of Bell’s Terms of Service when it now suits him.

[67] Obviously, the most basic and fundamental term of the contract between the parties was the plaintiff’s agreement to pay Bell’s monthly service fee(s) in exchange for the use of the phone number. I do find Bell’s recordkeeping to be questionable and replete with self-described “systematic errors”, and in particular (a) the lack of notations of the various phone conversations and (b) the implementation of the second seasonal suspension in the face of an account in arrears. However, the bottom line is that once the plaintiff cancelled his pre-authorized credit card payments in October 2007, there is no further evidence of the plaintiff remitting payment toward any further amounts due under his Bell account. Even with the two months’ credit applied to the account, and the various “systematic errors” and post-seasonal suspension billing, as at January 14, 2008 the sum of $136.91 (inclusive of the $50.00 seasonal suspension fee) was due and owing by the plaintiff to Bell pursuant to the One Bell invoices.

[68] The plaintiff has the onus of proving that as of January 14, 2008, his account was not in arrears and he paid the $50.00 seasonal suspension fee. Apart from his testimony, he has not produced any documentary evidence to support that position. It is trite to state that he who asserts must prove. The legal onus, and the evidentiary onus, both lie squarely upon the plaintiff in this case.

[69] At the relevant time (late 2007 to early 2008), the plaintiff testified that he was using multiple credit cards. He stopped paying the amounts due and owing to Canpages in November 2007. Portions of bank statements for Opara Law during the August-November 2007 period show, on occasion, negative balances, cheques being returned NSF, and certainly no payments to Bell.

[70] I therefore find on a balance of probabilities that as of January 14, 2008, the plaintiff’s account was in arrears and he did not pay the $50.00 seasonal suspension fee. Based upon that finding alone, and even though the subsequent amounts Bell sought to be paid after January 14, 2008 were inflated and incorrect, Bell was justified pursuant to its Terms of Service to disconnect and terminate the use of the plaintiff’s phone number. It was thus the plaintiff who breached the primary term of the contract between the parties, namely the obligation to pay.

[71] The plaintiff’s claim for breach of contract is therefore dismissed.

b) Misrepresentation

[72] In his closing submissions, the plaintiff did not really pursue this argument, although it is specifically raised in his Statement of Claim.

[73] To begin, the plaintiff took the position in his Statement of Claim that due to the “special relationship” between the parties, Bell owed him a duty of care. The plaintiff alleged that Bell breached this duty of care by way of a negligent misrepresentation, being the statements made to the plaintiff by the Bell agents in February - April 2008 confirming the second seasonal suspension was in place.

[74] The relationship between the plaintiff and Bell is purely contractual. I find no presence of any additional elements which would warrant the imposition of a duty of care placed upon Bell. There is certainly no “special relationship or proximity” between the plaintiff and Bell to substantiate any duty of care.

[75] For this reason alone, the plaintiff’s claim for misrepresentation is dismissed. However, having found that the plaintiff never paid the outstanding arrears or the seasonal suspension fee, even if a duty of care did exist, the plaintiff could never have relied upon any alleged statement made by a Bell agent during February-April 2008 to his detriment.

[76] I note that although never pursued at trial, the plaintiff’s Statement of Claim also alleges that in addition to a “special relationship” between the plaintiff and Bell, Bell was also in an alleged fiduciary relationship of trust and confidence with the plaintiff, as he relied upon Bell’s “skill and judgment”.

[77] I do not find that Bell possessed the scope for the exercise of any discretion or power over the plaintiff, but more importantly there is no evidence whatsoever that Bell agreed to relinquish its own self-interest and act in the sole interests of the plaintiff, a necessary element of any fiduciary relationship.

Damages

[78] While I have dismissed the plaintiff’s claims, had I found Bell liable in breach of contract or misrepresentation, the plaintiff failed to adduce any cogent evidence upon which this Court could have granted a remedy of damages. No accountant or other witness was called to give evidence on the alleged financial impact of Bell’s actions and/or omissions upon the plaintiff’s law practice. No financial statements or income tax returns for the plaintiff or Opara Law (if separately filed) were tendered as exhibits at trial. The only financial documentation produced by the plaintiff consisted of the Opara Law bank statements which show a negative balance off and on during those months.

[79] I did not receive any direct, admissible evidence from third parties or potential clients who would have retained the plaintiff’s services had the plaintiff’s telephone number not been disconnected. Normally, a Court could encounter difficulties in calculating a damages award when it is being asked to “draw inferences upon inferences”. In the within case, there are no inferences to be drawn at all as there was no evidence tendered in that regard.

[80] The plaintiff sought compensation from Bell for the payments he made to Canpages for the Yellow Pages advertisement, which he claims provided him no value due to the phone number being disconnected. There are two problems with the plaintiff’s position:

(a) The seasonal suspension directing any callers to phone his new number at Heydary Hamilton PC was in place until April 16, 2008, thereby providing nearly four months of “value” for less than four-months’ payments made by the plaintiff, and

(b) the plaintiff ceased making payments to Canpages for the Opara Law Yellow Pages advertisement in November 2007, well before he says he encountered any difficulties with Bell commencing in or around February 2008.

[81] Finally, the plaintiff claimed that his entire 2008 experience with Bell “traumatized him” but attendances at his church helped him overcome those effects. I do not find that evidence to be credible. No medical evidence, be it through testimony or documentation, was introduced at the trial of this action, and in any event no claim for mental distress was advanced in the plaintiff’s Statement of Claim.

[82] The plaintiff’s claim is therefore dismissed.

Costs

[83] If the parties cannot agree upon the costs of this proceeding, I would invite them to provide costs submissions in writing, limited to 4 pages including their respective costs outlines, in accordance with the following schedule:

(a) Bell’s costs submissions to be served and filed within 10 business days of the release of these Reasons;

(b) the plaintiff’s responding costs submissions to be served and filed within 14 days of the receipt of Bell’s costs submissions.

Diamond J.

Released: April 14, 2015

CITATION: Opara v. Bell Canada, 2015 ONSC 2169

COURT FILE NO.: CV-09-379307

DATE: 20150414

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

VICTOR OPARA

Plaintiff

– and –

BELL CANADA

Defendant

REASONS FOR JUDGMENT

Diamond J.

Released: April 14, 2015