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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."
Lets put it this way... if Dell found a bug that was overcharging customers do you honestly think they'd pay back all the money to the customers they rightfully owed? Probably not. The law cuts both ways, if Dell let a pricing bug in their system GO LIVE, then they are obligated to honor those contracts.
Of course, we could just go back to dealing with customers face to face instead of clicking 'Buy Now!' on a website if you want to make sure you (as a company) are not being scammed.
09F911029D74E35BD84156C5635688C0
+2 Troll is Slashdot's way of saying groupthink is confused
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.
what if they didn't know it was a mistake? I just about crapped myself when I was the $400 off laptop deal a few months ago and I bought one for waaaaaay under what any Acer would cost. Just how low was the price mistake? If it was like $150 for a new, decent PC then yeah, these ppl are idiots but if it was $600 for an $800 machine then I wouldn't think of it as a glitch, I'd think it was another sweet sale, especially if it was at the time of the month/year/quarter that they usually do that kind of a markdown.
Google's Super Secret Search Algorithm: SELECT @search_results FROM internet WHERE @search_results = 'good'
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".
Actually to be fair, in canada we have something called the consumer protection act that has this wonderful clause that companies are obligated to correct billing errors brought to their attention during the 90 days following the invoice date.
Note: BROUGHT TO THEIR ATTENTION DURING THE 90 DAYS
This is why service providers here in canada try to keep people in the run around as much as possible as once its over 90 days, they do not HAVE TO DO A BLOODY THING....even if it was incorrect.
Now one thing i do NOT know is how much case law is out there that contests this, but i know for a fact a certain cellphone provider here banks on this as their margin inflator.
Ice Cream has no bones.
A couple of 30-somethings embark on the ultimate roadtrip
Well look, the Canadians weren't much help in WWII and they still are useless.
I dunno, for less than 10% of the US population, Canada seems to manage to hold its own. Also it looks like you've never heard of the 1st Canadian Army, consisting of over 200,000 men in 3 infantry divisions, 2 armored divisions and 2 armored brigades. Those guys only had to deal with crack SS divisions at Caen while the Americans took their sweet time capturing Cherbourg. Guess who won.
However I shouldn't expect a yankee to know much about history.
Seven puppies were harmed during the making of this post.
May I also mention that the 10% of the US population captured 25% of the beaches on D-Day? :P
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.
Also the grandparent conveniently forgets to mention WWI where the Canadians captured Vimy Ridge, where the British and French had previously failed. Yanks would also do well to remember which is the only nation to have successfully invaded their country and burn their capital city to the ground.
In Australia, stores are bound by law to give the customer the lowest price.
If they print it wrong on in a magazine or on the net then its the stores fault and the customer gets the cheaper price.
Maybe if companies put their EULA/Policies/whatever legal crap they have in PLAIN ENGLISH instead of super complicated legalese then people might actually read the crap. I know for a fact that you can buy a Dell computer from their website without ever being flashed their policies and terms of sale.
I'm sorry but as for terms of sale, anything beyond 'I give you cash, you give me a machine' is complete and utter bullshit. That is one reason why I do not buy crappy dell computers.
Oh and that arbitration thing, its so that they cant get class action lawsuits against them for shit like say... oh I dont know... say an exploding dell laptop.
Its time for companies (and governments to back the citizens up) that they cant avoid class action lawsuits by putting it in some stupid little blurb which nobody will ever click on and that willful negligence (like the laptop battery thing) should void any arbitration agreements.
09F911029D74E35BD84156C5635688C0
+2 Troll is Slashdot's way of saying groupthink is confused
What if the printer printed it wrong and not the store? Does the store get screwed?
Unless new legislation has passed since I was there last, this isn't true. It's true for sundries and food below $50 or $100. It certainly does not apply to electronics at AU$1000, or to my knowledge, to electronics at all.
Websites are not responsible for pricing errors as long as it's caught prior to completion of the transaction. The key there is completion of the transaction--that's not when you click "buy" or when your card is authorized for the amount. It's when the product is invoiced and has shipped. If they don't catch it in that time, you're clear. But 99% of the time, they catch it between ordering and invoicing (most companies review invoices before issuing them for just this very reason since the process up until that point is wholly automated).
If such an error occurs after an order is placed, they will contact you. You can choose to accept the higher price and continue, cancel the order, or seek some sort of comp/freebie for the trouble. Just like you don't create a contract when you place an offer on a house or call in an order at a restaurant, clicking "buy" on a website doesn't complete a contract. It initiates one. For example, if your card is declined or if the product is out of stock, that's the end of it. A contract is not in place until your money has been taken (not merely authorized) and an irrevocable invoice for a product has been provided to you.
People are both too stupid and too greedy for this to ever work; if you have ever worked in any kind of customer complaints department you would know this.
I'm sorry but as for terms of sale, anything beyond 'I give you cash, you give me a machine' is complete and utter bullshit.I for one am quite happy that many of the more expensive items I have bought came with warranties. I take it you have never had anything break down outside of the return period.
Oh and that arbitration thing, its so that they cant get class action lawsuits against them for shit like say... oh I dont know... say an exploding dell laptop.Man, you either have a horrible memory, or just like to twist everything into anti-Dell. The exploding batteries were made by Sony, and practically every laptop manufacturer on the planet had units out there with them. Dell was the first one to recall the batteries. Bad press for them at the time, but in retrospect more responsible than the companies that waited much, much longer to recall them.
many of the articles posted by Mr. Dawson are so obviously (left-)biased
"It's well known that reality has a liberal bias."
The correlation between ignorance of statistics and using "correlation is not causation" as an argument is close to 1.
Yes, kill the beaches. Great strategy.
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?
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.
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.
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