Canadian Court Sides With Dell Against Class Actions 127
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."
Good idea (Score:1, Insightful)
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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.
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Re:Good idea (Score:4, Interesting)
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.
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i presume that the store would then be able to sue the printer for damages over it.
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Re:Good idea (Score:5, Informative)
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.
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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.
Which is why the Canadian economy is doing better than Australia, and Canada is a better place to do buisness.
Seriously, you would rather have people lose their jobs when a company goes bankrupt giving $2000 TVs away for $20, than to have a bunch of people who knew damn well you can't get a flat screen TV for $20 be told "Sorry, it is a misprint"?
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If a customer saw the higher price and agreed to buy anyway, Dell would not owe anything.
Re:Good idea (Score:4, Interesting)
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.
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but i know for a fact a certain cellphone provider here banks on this as their margin inflator.
I don't see how. If you bring something to their attention during the 90 days, and they give you a run around that extends beyond it, that doesn't change the fact that you brought it to their attention during the 90 days.
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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
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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.
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 manufacture
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Interesting argument. Use what someone might do to justify what you have done - profit from another's innocent mistake, a misprint, a typo. Why not take it into a court of equity and see how well it flies?
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When I was a retail manager, when a price was mis-marked,
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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.
I don't know about Dell, but I have had Sprint, Amazon.com, and Ford, all catch the fact that they overcharged me, and each one contacted me and let me know and credited me in full for the mistake. I have also worked for a smaller ecommerce company, and if we discovered a mistake we would credit the customer, and most likely send them a little something extra for their troubles. Reputable companies don't intentionally and overtly scam their customers.
So yes, I am fairly confident that Dell would honestly p
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I bet you're all for personal responsibility too, up until the second you have to take some, eh? A website makes a pricing mistake, they cry when people try to hold them to it.
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lower standard of "unconscionable" (Score:3, Interesting)
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
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Re:Good idea (Score:5, Insightful)
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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.
Re:Good idea (Score:5, Informative)
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LK
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Re:Good idea (Score:4, Funny)
Also the grandparent conveniently forgets to mention WWI where the Canadians captured Vimy Ridge [wikipedia.org], 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 [wikipedia.org] and burn their capital city to the ground.
Re:Flame war about a 200-year-old war? (Score:2)
Saying it was Canada is like a little kid bragging about how he beat someone up by getting his older brother to do it.
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Not that I would call that an invasion... but if a statement of "most" or "best" or "largest" changes with the phrasing then it's not all that cut and dried.
Folks who clamor on about the war of 1812 forget that war was against the British, and that Canada didn't have true sovereignty until 1867 (55 years later), previously basically having to send a l
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Now, That being said, the Canadians aren't a bunch of pussies (or weren't). They volunteered to get into WW2 before the US thought it was worth watc
History lesson (Score:1, Offtopic)
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Where would KDawson move? (Score:1, Interesting)
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
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"It's well known that reality has a liberal bias."
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That said, I'd rather have articles "obviously biased" than "subversively biased".
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It is if you want to be taken seriously; the GP seems a bit like the pot calling the kettle black.
Isn't a black kettle black?
. . . all we have is some troll labeling everything he doesn't like "liberal."
Nah, the question is raised about bias and the reasoning should then be evidence, and the lack thereof, of bias. Not a "troll" ad hominem attack.
So, who's this clean and pure individual with no opinions or personal convictions on anything important with whom we are to confer with to find out if there's bias or not?
Or was that original post modded troll simply because of moderators did not agree with the accusation of bias and chose to attach a label of "troll" instead of forfeit
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I guess that is due to the sudden flux of American immigrants following Bush election. I think that if Canadians want to preserve their identity, they should act. By building a wall on the border for instance...
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relative to what? (Score:3, Insightful)
"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.
Re: relative to what? (Score:1)
The moderates see very bright thinkers on both sides
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re-balancing /. (Re:relative to what?) (Score:2)
The left wingnuts don't discriminate. They seek (and "find") conspiracy [wikipedia.org] 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.
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Why does everybody assume that "biassed" means the same as "wrong"? "Bias" is a flaw in an argument which, in itself, proves nothing about the issue.
You can argue coherently, citing evidence, taking time to rebutt your opponents arguments a
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LK
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Advertised price != actual price? (Score:1)
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?
Re:Advertised price != actual price? (Score:4, Informative)
Re:Advertised price != actual price? (Score:4, Informative)
Any wrong price, high or low? (Score:2)
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".
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In Australia, advertised prices are binding. If you make a typo in your advertisement then you should have had better proofing before you published the ad. IBM got burned with that a couple of years ago. They had a price of 400AUD instead of 4000AUD for a thinkpad advertised on their on-line catalogue. 200 people managed to get an order in before the price got pulled. IBM did try to get the consumer to pay the 'correct' price, however the ACCC had somethi
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Now to my understanding,
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Or am I being somewhat naive?
Not naive.
Greedy.
Court Rules for Cleaners In $54 Million Pants Suit [washingtonpost.com]
No business could stand the losses if you could demand sale and delivery of a Bugatti Veyron at 90% off list because of a misprint in a brochure.
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If businesses aren't held to the letter of their agreements, what are they held to?
In today's global business world it's thoroughly reasonable for a big company to offer a seemingly insane deal. It could be a loss leader, it could be overstock, or them needing to pump end-of-year sales. Why is it suddenly the burden of the consumer, now de
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You are a big boy now. Don't like the contract? Don't sign the contract.
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My bitch is that companies don't have to. "Free shipping" doesn't have to mean anything. Normal rights to dispute something in court - taken away by unseen licenses.
Quebec is Different (Score:5, Informative)
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.
Unenforcable in the UK (Score:2, Informative)
The Unfair Terms in Consumer Contracts Regulations 1999 [opsi.gov.uk]
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 nego
Argos took advantage... (Score:1)
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 sen
(Not quite) Supreme Court (Score:2)
Wrong (Score:3, Informative)
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Furthermore, when the Law Lords were the ultimate court of appeal, this was true for all of Canada. It was never up to the individual provinces and territories.
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Uh, no. While sometimes referred to as the "Privy Council", appeals were actually to the Judicial Committee of the Privy Council, the members of which are known as the "Law Lords".
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What the hell are you talking about?
Canada has no states. It has provinces and territories. And the Supreme Court of Canada has no higher court of appeals. That's it. It's the top of the food chain in Canada.
American states stop at SCOTUS, but SCOTUS decisions don't really affect Canada.
The UK Law Lords are applicable to an entirely different c
Quebec's Solution (Score:1)
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.
Uh.. not so bad. (Score:3, Informative)
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?
"Just Issued" (Score:2)
I just came back from vacation and thought my lack of sleep was making me see doubles. A similar case in the US was reported on Slashdot [slashdot.org] with a comment [slashdot.org] about this case. This may not count as a dupe, but 18 days is awfully slow, even for Slashdot.
You win some, you lose some. (Score:1)
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 g
Dunno about arbitration, but... (Score:3, Insightful)
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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Mandatory arbitration cuts both ways.
Positive (for the business, and ultimately for consumers): Greatly reduces the cost of defending against frivolous lawsuits.
Negative (for some consumers): If you have a real complaint, there's less chance of it getting resolved in your favor, or of getting big damages levied against the company, which might incent it to change its policies. Likewise, getting your case heard by a jury might help you get a judgement based in part on what's "right" or "reasonable", rath
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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.
Here's the irony: Mandatory arbitration clauses were introduced to cut down on the ever increasing legal costs during the 1980's in the financial industry, but through the 1990s to today they have been finding their way into every form contract. Their initial goal was good: cut down on the cost and burden to the courts and parties. But they have resulted in something worse: Arbitration necessarily precludes class-action lawsuits, which are the only way for a group of individual, damaged small parti
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...then, hopefully, they would face a criminal prosecution for fraud. Last time I looked, you couldn't put "I reserve the right to defraud you" into a contract. The civil courts make lousy policemen and should be used to settle disputes, not punish crimes.
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While I agree with you, it's the price of doing business. There is a reason why managers are anal. Because every freaking letter and dotted i counts. This would be the same effect if you
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