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Canadian Court Sides With Dell Against Class Actions
An anonymous reader writes "Michael Geist reports that the Supreme Court of Canada has just issued a new online contracting decision that removes the ability for consumers to challenge mandatory arbitration clauses found in e-commerce contracts. (Decision is here.) The case involved a lawsuit against Dell Computer, which refused to sell hundreds of mistakenly priced computers purchased on their website. Dell tried to sidetrack a class action by claiming that all consumers were required to enter arbitration due to a clause buried in its contract via a hyperlink. Geist explains why the ruling may not be as unfavorable for Canadian consumers as it seems at first, in part because some provinces have already passed laws banning e-commerce sites from blocking class-action suits."
A website makes a pricing mistake, all the trolls hop on, then they cry when the deal they KNEW couldn't be true, wasn't true. Well heck, let's just SUE THEM! Thank you for reminding me just how pathetic this society has become.
It was the autumn of 2004 and hundreds of people were claiming, that, if Bush wins again, they'll move to Canada...
It is now the summer of 2007, and Mr. Dawson — who, apparently, decided to stick around back then — is busy trying to turn /. into some sort of DailyKos. Fair enough — he believes in it, so he fights for it.
But recently his postings were all about Canada turning less and less appealing to his kind. So, where is he going to move, if a Republican wins again next year? Or, if he is a Canadian, where will he go, if Canada continues to align its laws with America's?
This post is not entirely off-topic, really — many of the articles posted by Mr. Dawson are so obviously (left-)biased, the editor's persona becomes a fair part of the topic. Plus, with tags like "republicansarenazis" used by this guy just a week or so ago, no on-topic discussion is really warranted — by Godwin's Law, at least...
In Soviet Washington the swamp drains you.
I was under the impression that the price at which a product was advertised was the price at which it must be sold? Otherwise the low price expectation being met with a higher-price reality leads to the problems of the 'bait-and-switch.'
Or am I being somewhat naive?
This decision is not very applicable to the rest of Canada because Quebec is a civil law jurisdiction (like Continental Europe and Louisiana). The court looks to the Civil Code of Quebec to decide the case.
In the rest of the provinces, the court looks to the "common law", that is to say, rulings in previous cases. This is similar to England and most of the United States.
If you read the supreme court's decision, it relies heavily on the Civil Code of Quebec.
Of course, I am not a laywer and this is not legal advice. If you want advice, pay for it.
Correct me if I'm wrong, but the standard of what's referred to as "unconscionable" in Canada is lower than in the US.
IIRC (and IANAL here) but the Ontario court said basically said for "contracts of adhesion", (i.e., contracts like this where they know nobody reads it all) that, in order for a contract/clause to be enforceable, the test is, "if they had read it, is it reasonable to assume that this customer would've accepted it?".
So, it's a lesser hurdle to get over than "unconscionable = contract that no reasonable person would accept".
The plural form of "anecdote" is "anecdotes", not "evidence".
Well.. Canada likes to do things differently from the US, sometimes even for the sake of being different.
Canadian courts probably would never do what American courts do - especially in potentially high profile cases - like class action against Dell.
Canada is much less sophisticated and media savvy... I am just looking at now msnbc and bnn (both financial tv channels, one American, the other Canadian) the difference is just... well... a totally different world. But even franchises like Idol - in the USA and in Canada are quite different.
Statutory Instrument 1999 No. 2083
The Unfair Terms in Consumer Contracts Regulations 1999
Terms
5. - (1) A contractual term which has not been individually negotiated shall be regarded as unfair if, contrary to the requirement of good faith, it causes a significant imbalance in the parties' rights and obligations arising under the contract, to the detriment of the consumer.
(2) A term shall always be regarded as not having been individually negotiated where it has been drafted in advance and the consumer has therefore not been able to influence the substance of the term.
(3) Notwithstanding that a specific term or certain aspects of it in a contract has been individually negotiated, these Regulations shall apply to the rest of a contract if an overall assessment of it indicates that it is a pre-formulated standard contract.
(4) It shall be for any seller or supplier who claims that a term was individually negotiated to show that it was.
(5) Schedule 2 to these Regulations contains an indicative and non-exhaustive list of the terms which may be regarded as unfair.
Assessment of unfair terms
6. - (1) Without prejudice to regulation 12, the unfairness of a contractual term shall be assessed, taking into account the nature of the goods or services for which the contract was concluded and by referring, at the time of conclusion of the contract, to all the circumstances attending the conclusion of the contract and to all the other terms of the contract or of another contract on which it is dependent.
(2) In so far as it is in plain intelligible language, the assessment of fairness of a term shall not relate-
(a) to the definition of the main subject matter of the contract, or
(b) to the adequacy of the price or remuneration, as against the goods or services supplied in exchange.
Effect of unfair term
8. - (1) An unfair term in a contract concluded with a consumer by a seller or supplier shall not be binding on the consumer.
(2) The contract shall continue to bind the parties if it is capable of continuing in existence without the unfair term.
SCHEDULE 2
Regulation 5(5)
INDICATIVE AND NON-EXHAUSTIVE LIST OF TERMS WHICH MAY BE REGARDED AS UNFAIR
1. Terms which have the object or effect of-
(q) excluding or hindering the consumer's right to take legal action or exercise any other legal remedy, particularly by requiring the consumer to take disputes exclusively to arbitration not covered by legal provisions, unduly restricting the evidence available to him or imposing on him a burden of proof which, according to the applicable law, should lie with another party to the contract.
Yawn
Dell *may* try to claim that thier customer's have to submit to arbitration, but until they actually *sell* the damn pieces of shit they call computers the "agrieved" parties are most definitely *not* customers. Sounds like they're trying to have it both ways. Full disclosure: I *hate* DELL.
Note that the Supreme Court of Canada is not the highest court for all provinces and states. Some states only recognize the UK Law Lords as the highest authority.
Excuse me, but please get off my Pennisetum Clandestinum, eh!
Uhh, the last time there was a war between Canada and the USA, Canada won and burned the White House down. That is why the White House is painted white - to hide the soot marks. This is pretty funny really, but I guess this little bit of history won't be part of US public school education...
Excuse me, but please get off my Pennisetum Clandestinum, eh!
erm... I am not a historian and it's been a while since high school history, but even your reference disagrees with you. Certainly the Canadians fought in the war of 1812 and they clearly held their own, but it would seem that the British burned DC.
Saying it was Canada is like a little kid bragging about how he beat someone up by getting his older brother to do it.
It breaks my pluginses, my precious!
...it makes us feel big...
If a price is advertised as one thing, but costs different at checkout, you get 10% off the lesser price. The store is obligated to point this out if it happens (though many don't).
Some people in Quebec go as far as marking down on paper the price of everything they buy so that when they checkout, they can point out every mistake there is, and you'd be surprised how many mistakes there can be in an environment like a grocery store.
I'm god, but it's a bit of a drag really...
That seems like a good deterrent to "accidentally" marking something UP, but if it were incorrectly priced too low, I doubt the average consumer even mention it.
The Dell case in question was obviously not a bait-n-switch ploy, the wrong price was about 20% of the correct price - any honest consumer would know that it was "too good to be true".
This issue is a bit more complicated than you think.
This is a case where the original user tried to rip Dell off by using a deep-link URL to bypass the normal storefront and get a $549 computer at $379. Meanwhile, it's a decision that applies to grandfathered contracts anyway, since Canada now has the Consumer Protection Act which "prohibits" contract clauses that "oblige a consumer to refer a dispute to arbitration."
Additionally, the action the *consumers* brought against Dell was a result of Quebec-specific consumer protection laws.
Finally, the Court specifically mentioned that courts still have the right to "refer" the matter to arbitration, which implies that the right to have a court actually hear such a case to begin with hasn't been removed. Besides, the decision states it even more clearly: "Before departing from the general rule of referral, the court must be satisfied that the challenge to the arbitrator's jurisdiction is not a delaying tactic and that it will not unduly impair the conduct of the arbitration proceeding."
The Court here when it says "referral" is specifically describing the right of a lower court *not* to refer the matter to arbitration if it so decides to.
So.. uh.. wtf?
I guess it would be lost on you if I were to point out that the one serving member of the US Senate who was a known Klansman is also a Democrat?
LK
"Hi. This is my friend, Jack Shit, and you don't know him." - Lord Kano
IIRC Argos took advantage of the fact that under British law then the contract of sale isn't completed until they dispatch the item. So, you ordering an item on a UK site is you offering a contract to purchase, and it's up to the seller whether they accept it.
I can't remember the exact prices, but there were some large TVs advertised on their website at ridiculously low prices (like 10% or something) because someone had entered the price wrong. Lots of people found them and ordered them, but Argos never sent any out and eventually cancelled the orders. People complained, but the Office of Fair Trading (I believe) said that the contract hadn't been completed and so Argos weren't bound to the price.
As long as it works fairly and companies have to cut orders at the lower price rather than being able to "bait and switch" to the 'correct' price then I don't see much of a problem. You shouldn't have got it at the cheap price and you end up not getting it at the cheap price.
In the past I have taken advantages of misprices, getting a couple of Dimension desktops with good specs (for then) for really really low prices. For about £100 I picked up a Dimension P4 HT 3GHz/1GB/120GB SATA for about $150). I knew I was in a legal grey area. If I got it great, if I didn't well nothing lost.
The trick with Dell is to get the order confirmation. Once you have that, Dell wont argue at all.
But to start a class action suit because you tried to take advantage of a mistake is not really good sportsmanship, in my opinion, just getting greedy.
By the way, if you are in the uk, and want to know of the "whoopsie" deals, check out Moneysaving Expert Forums The dell deals are almost always on here within 10 minutes of going live.
http://www.writeitfor.us - Writing IT for the IT generation.
many of the articles posted by Mr. Dawson are so obviously (left-)biased,
"Biased" relative to what?
And what is "biased" about criticizing the administration for imprisonment without due process, for violating privacy rights, for funneling billions to their buddies in industry without any oversight or review, for torture, and for lying in order to get us into a war?
Maybe the problem is that you're so right wing and so politically narrow minded that even moderate opinions seem "left-biased" to you.
Which only illustrates the point that the two main parties who rule .us are conservative (aka predominately corrupt) and considering they are the ones with most power, most americans feel that voting is simply an issue of choosing the lesser of the two evils [who is most likely to win].
A majority of american voters who actually care about issues and other citizens (ie they don't choose vote blindly on partisanship or popularity with friends) have major issues with most candidates of both parties and are resigned to the belief that that only one of those two parties stand a chance at winning.
Maybe we aren't crying salty tears for Dell, but this sounds like exactly the sort of silly, greedy, "protect my constitutional right to get something for nothing" lawsuit that these arbitration clauses are intended to head off. Its not as if Dell are trying to force these customers to complete the purchase at full price, is it? If you are forced into arbitration because BigCorp have come round and claimed your first born (in accordance with para. 796, subsection y of the invisible terms of service) then save some of the blame for these guys (this is assuming, of course, that the arbiter actually turns out to be the BigCorp CEOs brother in law, and doesn't actually help you).
Before citing "bait and switch" and "fair competition", think of the smaller traders who would be harmed by simply having to defend against a bogus class action because they missed out a zero on their web shop, some bozo posted the to slashdot and 30 minutes later they had "sold" ten thousand $1000 laptops for $100 each.
I don't kow what happens in the US/Canada, but in the UK we have trading standards authorities who could investigate and prosecute traders in the event of a real "bait and switch" scam rather than leaving it to vigilante lawyers. Not saying they're efficient mind (too busy burning counterfieters at the stake to protect the right of brand name owners to get $50 for a $5 shirt with their logo) but the principle is sound.
In a survey of 100 programmers, 111111 thought that duck-typing was a good idea.
In Australia, supermarkets (and places that bide by the supermarkets code of practice, like servos,7-11 ect) for products under $50 must give you the first item which scans at the wrong price (or labeled incorrectly) free (if you know to ask) and subsequent items at the correct price.
Ici au quebec,
we have a similar consumer law. The key here is in the asking for the free item at the wrongly scanned price.
( hard to place the modifier in that one above....)
We were the British in 1812.
The left wingnuts don't discriminate. They seek (and "find") conspiracy in every decision — stupid and otherwise.
It is quite possible, that the right wingnuts are the same — I just don't see them as often. Maybe, /. ought to add one to the team of editors... Or, better yet, get rid of Mr. Dawson.
In Soviet Washington the swamp drains you.
"Those who make peaceful revolution impossible, make violent revolution inevitable" - JFK
A majority of american voters who actually care about issues and other citizens (ie they don't choose vote blindly on partisanship or popularity with friends) have major issues with most candidates of both parties and are resigned to the belief that that only one of those two parties stand a chance at winning.
It depends on the issue. For some issues, you are pretty much locked into one party or the other. The issues that I vote on have determined which party I joined and which party I usually vote for.
LK
"Hi. This is my friend, Jack Shit, and you don't know him." - Lord Kano