Consumer Protection - News

  • Supreme Court Rules in Favour of Contractual Fairness and Access to Justice in Uber v Heller
    – 2020-06-30 –

    The Supreme Court of Canada’s decision in Uber Technologies Inc. v. Heller, 2020 SCC 16, Spromises to improve the fairness of standard form contracts and promote access to justice for Canadians. In an 8-1 decision, the Supreme Court of Canada ruled that Uber’s arbitration agreement denying drivers access to Canadian courts was unconscionable, exploiting an inequality of bargaining power to impose unfair terms on drivers.

    The case began as a class proceeding brought by Mr. Heller against Uber for wrongfully classifying Uber drivers as independent contractors instead of employees, and in doing so depriving drivers of the protections and benefits of Ontario’s Employment Standards Act, 2000.

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  • CIPPIC Files Factum in Uber v. Heller
    – 2019-10-18 –

    CIPPIC has filed its intervener factum in the Supreme Court in Uber v. Heller, SCC No, 38534, an important case addressing when courts should refuse to enforce contractual restrictions on fair access to justice. CIPPIC’s argument focuses on the applicability of the equitable doctrine of unconscionability to standard form contracts that include contractual restrictions that deny access to justice. CIPPIC proposes a two-step test to aid courts in determining whether such contractual restrictions would result in the unconscionable denial of access to justice.

    Professor Marina Pavlović and Cynthia Khoo (LLM Candidate and CIPPIC researcher) are acting for CIPPIC in this intervention.  Newly minted lawyer and former CIPPIC Articling Student Johann Kwan also signed on CIPPIC's behalf.

    The case is scheduled to be heard November 6, 2019.

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  • NAFTA 2.0 a Done Deal: Canada, US, Mexico Reach Agreement
    – 2018-10-01 –

    Canada, the United States and Mexico have reached agreement on a new trade agreement to replace NAFTA.  Now called the United States-Mexico-Canada Agreement (the USMCA),  the Agreement includes both an Intellectual Property Chapter and a Digital Trade Chapter.  

    The digital provisions include gains and losses that will require changes to Canadian law, but also preserves the status quo on issues of importance to Canada:

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  • CIPPIC Files Factum in Telus v Wellman
    – 2018-09-28 –

    CIPPIC has filed its intervener factum in the Supreme Court in Telus v Wellman, SCC No. 37722, an important case addressing the disparate impact of mandatory arbitration clauses on consumer and business customers.  CIPPIC's argument focuses on access to justice considerations and the differing way that consumer protection laws protect consumers and other vulnerable groups encountering standard form contracts in circumstances characterized by disparities in bargaining power.

    Profesor Marina Pavlovic and Cynthia Khoo (LLM Candidate and CIPPIC researcher) are acting for CIPPIC in this intervention.

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  • SCC Grants CIPPIC Leave to Intervene in Standard of Review Trilogy
    – 2018-09-24 –

    CIPPIC has been granted leave to intervene in a trio of appeals in which the Supreme Court has invited submissions on standard of review:

    The Court is of the view that these appeals provide an opportunity to consider the nature and scope of judicial review of administrative action, as addressed in Dunsmuir v. New Brunswick, [2008] 1 S.C.R. 190, 2008 SCC 9, and subsequent cases. 

    Minister of Citizenship and Immigration v. Alexander Vavilov, SCC No 37748, Bell Canada, et al. v. Attorney General of Canada, SCC No 37896 and National Football League, et al. v. Attorney General of Canada, SCC No 37897 will be heard together over a three day hearing from December 4-6.

    CIPPIC is working with University of Ottawa alumni James Plotkin and Alyssa Tomkins.  Justice Bastarache - co-author of the plurality decision in Dunsmuir, is of counsel.  CIPPIC's intervention will focus on the rule of law and limits on deference in judicial review.

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  • SCC Grants CIPPIC Leave to Intervene in Arbitration Clause Case
    – 2018-08-23 –

    The Supreme Court of Canada has granted CIPPIC leave to intervene in Telus v Wellman, SCC No. 37722, an important case addressing the disparate impact of mandatory arbitration clauses on consumer and business customers.  CIPPIC's intervention, consistent with its historical work on consumer rights and standard form contracts, will focus on access to justice considerations.

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  • SCC Overturns OCA in Haaretz.com v. Goldhar, Stays Ontario Defamation Action
    – 2018-06-06 –

    In a 6-3 decision, the Supreme Court has overturned the result reached in the Ontario Court of Appeal (and the court of first instance) and stayed an Ontario defamation action in favour of Israel as the most appropriate forum.

    CIPPIC intervened in the case, and was represented by CIPPIC Director David Fewer and co-counsel Professor Marina Pavlovic and Professor Jeremy de Beer.  CIPPIC's intervention focused on access to justice, forum shopping concerns, and technological neutrality.

    The dissenting justices, Chief Justice McLachlan (as she then was) and Justices Moldaver and Gascon, picked up on CIPPIC's access to justice arguments in their forum non conveniens analysis:

    [215] While the plaintiff in this case is wealthy, access to justice concerns are implicated when considering fairness, and must be considered. For many non-wealthy plaintiffs, being denied access to the courts of a particular jurisdiction — typically their home forum — means being denied justice altogether. In those cases, fairness would weigh even more heavily in favour of the plaintiff’s choice of forum.

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  • UN SR on Violence Against Women Seeks Input on Technology-Facilitated Violence, Harassment & Abuse
    – 2017-11-02 –

    CIPPIC contributed to Citizen Lab's submission to the United Nations Special Rapporteur on violence against women, its causes and consequences, Dubravka Šimonović, who is seeking best practices for addressing technology-facilitated violence, harassment and abuse against women. The submission highlights the need to acknowledge the real-world harms that flow from technology-facilitated abuse—harms which are too often disregarded or trivialized. The atmosphere created by such abusive conduct operates at to exclude women and girls from critical digital spaces, can have professional consequences and can leverage technical capabilities to wage long-ranging and persistent harassment campaigns. Often, technology-facilitated abuse does not, however, fall neatly within existing causes of action or criminal prohibition, which poses a challenge for those seeking to leverage legal powers to find relief from such abuse. The online platforms on which technology-facilitated abuse too often plays out present an equally challenging landscape for women and girls facing online abuse. Voluntary mechanisms adopted by these platforms to address online abuse are opaque, highly inconsistent, and continue to fail those who attempt to rely on them. Other private actors compound technology-facilitated abuse of women by actively feeding a robust commercial stalkerware market that facilitates violent and harassing conduct and allows for pervasive surveillance of women by abusive partners. Citizen Lab's submission can be read at: https://citizenlab.ca/2017/11/submission-un-special-rapporteur-violence-women-causes-consequences/

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  • Supreme Court Rules Facebook Forum Selection Clause Unenforceable
    – 2017-06-23 –

    In a 4-3 decision, the Supreme Court of Canada ruled in Douez v Facebook Inc, 2017 SCC 33, that Facebook’s efforts in its terms of service to require Canadians to pursue grievances with Facebook in California courts instead of Canadian courts is unenforceable.

    The case involved a class action against Facebook alleging violations of BC's Privacy Act. The class action could not proceed, however, as Facebook argued that its terms of service require disputes to be resolved in California courts and under California law. Historically, the Supreme Court of Canada's jurisprudence favoured enforcement of these “forum selection clauses” on the rationale that holding sophisticated commercial parties to their jurisdictional choices advances the underlying principles that private international law seeks to achieve.

    However, online platforms now routinely impose non-negotiable choice of forum and law clauses in their terms of service, which consumers must accept on a take it or leave it basis. This places a heavy burden on individuals, who are left with no option but to enforce their rights in foreign courts and under foreign laws. This is especially problematic where the laws in question implicate constitutionally protected rights are invoked, as different jurisdictions must have leeway to apply different standards of freedom of expression and privacy to their denizens. CIPPIC's intervention therefore argued that enforcing forum selection clauses imposed onto online customers on a non-negotiable basis will undermine the principles of order, fairness and comity which private international law seeks to achieve.

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  • Supreme Court to Hear Online Privacy Jurisdiction Appeal
    – 2016-08-26 –

    CIPPIC's application for leave to intervene has been granted in Douez v Facebook Inc, SCC File No 36616, an appeal that raises fundamental questions regarding the nature of online jurisdiction, e-consumer protection and privacy. Specifically at issue is a forum selection clause imposed by Facebook onto all of its customers, on a take it or leave it basis, mandating that all disputes be brought against it in California. On the basis of this clause, it was held that a class action launched against Facebook in BC and alleging violations of BC privacy laws cannot proceed.

    Managing online jurisdiction-where services can have significant global presence and impact on a largely virtual basis-has strained digital policy since the early days of the world wide web. However, CIPPIC's proposed intervention intends to argue that forum selection clauses are ill-suited as a means of navigating the challenges posed by global online services. A mandatory, non-negotiable forum selection clause effectively opts a service provider out of Canadian standards and laws as foreign courts tend to apply their own rules and standards. As forum selection clauses are ubiquitous and non-negotiable in online services, their universal enforcement could effectively deprive Canadians from domestic protections in relation to digital activities that are increasingly critical to their daily lives. In addition, it could force any Canadian individual embroiled in a dispute with a global online platform to undertake the expense and inconvenience of suing in a foreign court.

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