|
Prisons - Ontario. Fareau v. Bell Canada
In Fareau v. Bell Canada (Ont CA, 2023) the Court of Appeal considered an appeal where a provincial telephone system contract for prisoners was challenged for a number of reasons, central amongst them being it's monopolistic nature and it's financial exploitation of prisoners and their families.
These quotes set out the basic contract/arrangement being challenged:[8] The appellants brought a certification motion, and Bell and Ontario brought cross-motions seeking a stay or dismissal of the action on the basis that the claims were within the jurisdiction of the Canadian Radio-television and Telecommunications Commission (“CRTC”).
...
(e) CRTC decision to forbear re: long-distance rates
[30] In Telecom Decision CRTC 1997-19, the CRTC partially forbore from regulating rates for long-distance calls under s. 25, and only reserved the right to assess whether rates in “non-equal access areas” were “just and reasonable” or “unjustly discriminate[d] or g[a]ve an undue or unreasonable preference”: see s. 27(1) and (2) of the Act.
[31] The appellants claim that “non-equal access areas” refers to a geographic area not serviced by equal access switches. The respondents submit that the term refers to areas where callers, such as the prisoners this case, do not have access to the competing long-distance network of their choice. I will return to this issue below.
(f) CRTC decision regarding inmate services
[32] The CRTC determined that a separate regulatory regime would govern all inmate telephone services across the country. Under Item 292 (Inmate Service) of Bell’s General Tariff[1] (“GT 292”), correctional institutions may place restrictions on inmates’ use of phones. GT 292 also makes reference to rates as follows:(c) Inmate service calls are rated in the same manner as calls originating from other public telephones except that payment options may be limited based on the requirements of the institution, technological limitations and Company collection policies. 3. RELEVANT EVIDENCE
(a) Telephones in Ontario correctional facilities
[33] As the motion judge identified, prisoners in Ontario correctional facilities make approximately 15,000 collect telephone calls per day. All calls are made through the Offender Telephone Management System (“OTMS”).
(b) Request for Proposals and Contract between Ontario and Bell
[34] In 2012, Ontario issued a Request for Proposals (“RFP”) to solicit telecommunication providers to bid for the provision of OTMS services at Ontario’s correctional facilities.
[35] The RFP stipulated that the objectives of the OTMS were to have telephone services provided to inmates in a controlled and regulated environment in order to, among other things:. protect victims of crime, witnesses and other members of the public from harassment and intimidation by inmates while in correctional facilities;
. restrict the ability of inmates to conduct criminal activity while in the care and custody of the province; and
. provide inmates with reasonable access to telephone services for the purpose of maintaining connections with family, legal counsel and with community organizations and agencies. [36] In light of those objectives, the RFP required a successful bidder to have the capability to place certain restrictions on the use of telephones in correctional facilities. Those restrictions included limits on (a) the lengths of calls made, (b) call destinations, and (c) the use of calling cards or toll numbers to prevent inmates from circumventing calling restrictions.
[37] Bell submitted a bid. In its bid, Bell represented, consistent with GT 292, that its telephone services would be provided at an identical call rate and connection fees as those it charged in the local community.
[38] Ultimately, Bell won the contract to provide telephone services for all of Ontario’s correctional facilities from June 1, 2013 to July 29, 2021, which is the class period.
[39] During that period, inmates in Ontario’s correctional institutions were only permitted to make outgoing collect calls through the OTMS service provided by Bell. To place a call, the inmate dialled using a payphone. The call was vetted by a control centre and the call could be blocked for security reasons. If the call went through, the recipient of the call was asked by means of a programmed recording whether they wished to accept the call but was not advised of the rates to be charged. Each call was limited to 20 minutes.
[40] For local calls, Bell charged a flat rate of $1, regardless of duration up to 20 minutes. Long-distance calls were charged at approximately $1.00 per minute or more plus a $2.50 connection fee. Bell’s evidence was that any call made from 8 a.m. to 6 p.m. to a distance greater than 81 miles would be billed at $1.33 per minute plus the connection fee of $2.50. The motion judge found the rates were four times higher than those charged to inmates in other provinces.
[41] Notably, Ontario levied a commission percentage on revenues from the OTMS system. While the precise rate is not available (as it was redacted from the contract provided), the RFP required the successful bidder to pay a commission to Ontario that was not less than 25% of gross revenues from the provision of services.[2]
(c) The appellants and their experience using the OTMS
[42] As noted, Ms. Fareau and Mr. Capay are representative plaintiffs in the proposed class action.
[43] Ms. Fareau was incarcerated at the Ottawa-Carleton Detention Centre in 2015 for two months while awaiting bail. During that time, she made collect calls to her children and others to arrange childcare and personal matters. She was never convicted.
[44] After her release, she continued to pay for collect calls from her nephew and friend who remained incarcerated. She incurred monthly telephone bills of hundreds of dollars. She gave evidence that she experienced “significant financial and emotional hardship in making phone calls to [her] loved ones because of the amounts charged.”
[45] Ransome Capay is a registered status member and resident of the Lac Seul First Nation. His son Adam was held in solitary confinement for more than four years until his charges were stayed. Mr. Capay often received several calls a day from his son that resulted in monthly bills of over $1,000 per month.
[46] Mr. Capay gave evidence that the telephone bills had a negative effect on him:Paying phone bills became a source of crushing stress, anxiety, and financial difficulty for Mr. Capay and his family. The stress and anxiety was compounded by the complete lack of choice and unknown cost each month. The cost of phone calls negatively impacted Mr. Capay’s ability to maintain contact with his son.
|
