Class action lawyers seek to have Bell affidavit stricken in prison phones case

In a would-be class-action lawsuit against BCE Inc. and the province of Ontario over what the plaintiffs say are "unconscionable" telephone rates charged to the families of prisoners in Ontario prisons while Bell held the contract, lawyers representing the plaintiffs are seeking to have a portions of Bell's affidavit stricken from the record. In a Tuesday hearing in the Ontario Superior Court – initially meant as a certification hearing for the to date uncertified class of prisoners, former prisoners, and their family members – lawyers representing them argued that a affidavits from Bell's general counsel in the case "are collectively an expert's report that's been inappropriately presented as the fact evidence of a lay witness." In arguing that portions of, or in one case the entirety of, three affidavits from Bell general counsel Pierre-Luc Hébert should be stricken, Sotos Class Actions attorney Tassia Poynter argued that Hébert presented what amounted to an opinion in service of Bell's overall argument – that the CRTC, rather than Ontario Superior Court, is the proper venue for a dispute over the prison phone rates. "Hébert's affidavits really boil down to Bell's biased narrative of what it thinks the law should be on the key issues of this litigation," Poynter said. "It creates an unusual and undesirable scenario in which a major telecommunications company is telling the court how its regulator works, and which policies apply to it, and which do not." In his June 30 affidavit, Hébert argued that although the CRTC has made regulatory policy in 2015 increasing the requirement for notification for users of "non-cash" payphone systems, it remains unclear if the policy applies to collect calls, like the ones used in the Ontario prison system. The "CRTC has the jurisdiction to extend the CRTC direction to payphones in Facilities, or to impose different terms and conditions, including in respect of rate notification, to inmate payphone services. As of the date of this affidavit, it has not done so," Hébert wrote in the June affidavit. Poynter argued that the assertion that it is unclear if the policy applies to collect calls is a legal argument, rather than a statement of fact, and should therefore be inadmissible. The class action lawsuit was first filed in February of 2020, and seeks statutory and general damages of $152 million, for “monies had and received under invalid and unconscionable agreements,” as well as punitive damages of $10 million. The suit – updated in Aug. 2020 – names two plaintiffs with a connection to the Ontario prison system. One of whom, Ransome Capay, lives on Lac Seul First Nation in western Ontario, and incurred between $700 and $1,000 in monthly phone bills taking collect calls from his son, who was held in pre-trial detention at the Thunder Bay Correctional Centre and Kenora Jail, hundreds of kilometers away. Another, Vanessa Fareau, was incarcerated for two months in pre-trial detention at the Ottawa-Carleton Detention Centre after being denied bail while pregnant. “Ms. Fareau struggled to make arrangements to pay her own phone bills so that she could remain connected to her children. Ms. Fareau’s phone bills were often in the range of $200-$300, or more,” the suit alleges. Tuesday, Bell defended its affidavit, saying that much of Hébert's affidavit involves statement of pure fact, despite lawyers for the plaintiffs characterizing it as opinion. Lawyers for Bell also argued that lawyers for the plaintiffs have cross-examined the affidavit, which is not consistent with their effort to have it stricken from the record. The case will proceed once Superior Court Justice Paul Perell makes a ruling on the affidavit. — Reporting by Michael Lee-Murphy at mleemurphy@thewirereport.ca and editing by Jenna Cocullo at jcocullo@thewirereport.ca .

Class action lawyers seek to have Bell affidavit stricken in prison phones case

News | December 7, 2021

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Class action lawyers seek to have Bell affidavit stricken in prison phones case

News | December 7, 2021

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