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Bad Luck for Consumers: Supreme Court Leaves Online Consumers to Fend for Themselves

For Immediate Release



Contact: John Lawford, PIAC
(613) 562-4002×25

Ottawa, Friday, 13 July 2007: Today, the Supreme Court of Canada rejected consumer pleas to preserve access to the courts in disputes with online retailers. Quebec’s Union des consommateurs, with supporting interventions by the Canadian Internet Policy and Public Interest Clinic (CIPPIC) and the Public Interest Advocacy Centre (PIAC), had argued that Dell Computer’s online agreements with consumers were one-sided and unfairly required consumers to individually arbitrate their disputes – effectively killing any chance at class actions that allow consumers to band together to challenge unfair industry actions and contracts.

Although the province of Quebec has in the meantime made such clauses unenforceable, not all provinces in Canada have similar protection, noted Philippa Lawson, Counsel for CIPPIC. Lawson added that the Court further approved the use of arbitration clauses in consumer contracts general. “Such clauses should not only be unenforceable, as some provinces have made them, but simply prohibited as being categorically unfair” Lawson said.

“The Supreme Court is woefully out of touch with the reality of electronic commerce” said John Lawford, Counsel for PIAC. In particular, he criticized the Court’s assertion that a simple hyperlink to a separate page of highly detailed contractual terms and conditions should bind a consumer to all those conditions when the consumer is presented with an order page online.

Lawford noted that contrary to the Supreme Court’s assertion that such external links are the responsibility of the consumer to hunt down, in fact the trend in electronic commerce law in Europe and in the practice of many online retailers has been to make such terms an integral part of the ordering process to ensure they come to the attention of the consumer in fact, not in theory. “It’s a dark day for online shoppers in Canada.” Lawford concluded.


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