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Canadian Court Sides With Dell Against Class Actions 127

Posted by kdawson from the one-less-big-stick dept.
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."
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Canadian Court Sides With Dell Against Class Actions More

Canadian Court Sides With Dell Against Class Actions

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  • Good idea (Score:1, Insightful)

    by saleenS281 ( 859657 )
    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.

    • Re: (Score:3, Insightful)

      by Tuoqui ( 1091447 )
      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.
      • I would be all for that if that was the case, but its not. For example lets say Target has a 52" TV on sale for $200 at the Store according to the local Ad, but when you get there they say that the ad is wrong and that the actual price is $2000. The same way as no one would buy the same TV for $20,000, and Target would correct it. Now you can try to sue all you want, but Target is not going to sell you that TV, mistakes happen on prices.

        • Re:Good idea (Score:4, Interesting)

          by cheater512 ( 783349 ) <nick@nickstallman.net> on Tuesday July 31, 2007 @09:43PM (#20065657) Homepage
          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.

          • Re: (Score:3, Insightful)

            by sumdumass ( 711423 )
            What if the printer printed it wrong and not the store? Does the store get screwed?
            • What if the printer printed it wrong and not the store? Does the store get screwed?

              i presume that the store would then be able to sue the printer for damages over it.

          • Re:Good idea (Score:5, Informative)

            by mr_matticus ( 928346 ) on Tuesday July 31, 2007 @10:15PM (#20065883)
            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.

          • 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"?

      • Re: (Score:2)

        by mi ( 197448 )

        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?

        If a customer saw the higher price and agreed to buy anyway, Dell would not owe anything.

      • Re:Good idea (Score:4, Interesting)

        by Adambomb ( 118938 ) on Tuesday July 31, 2007 @08:15PM (#20065009) Journal
        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.

        • Re: (Score:2)

          by vux984 ( 928602 )
          BROUGHT TO THEIR ATTENTION DURING THE 90 DAYS

          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.
          • Exactly. Just like warranty issues, if they haven't fix a problem within the warranty time, they cannot ignore it, they have to still fix it.
          • the problem I see with that is that once the 90 days are up then unless they have already acknolaged your complaint then it becomes your word against thiers as to whether you did indeed bring it to thier attention within 90 days.

            • Re: (Score:2)

              by vux984 ( 928602 )
              This is why you always ask for case numbers, ticket numbers, names, etc when you deal with this sort of thing.
      • Well they can't just cherry pick what they want to site to have. The site says I can have the computer for a dollar--I'll accept that. The site also says I must use arbitration--I'll just ignore that part.

        • Re: (Score:3, Insightful)

          by Tuoqui ( 1091447 )
          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

          • Re: (Score:2, Interesting)

            by pokerdad ( 1124121 )

            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

      • Re: (Score:2)

        by Khuffie ( 818093 )
        Not with Dell, but I at least on a couple of occasions have received notices where I've been overcharged due to a mistake, and been issued a refund. Without even me being aware of the fact that I was overcharged in the first place.
      • 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.

        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?

      • No, I think if they were overcharging customers, customers would raise a fuss and would get refunded their money. I think Dell would refund them their money once they found the error even without prompting. It would be customer service suicide to charge more on a credit card transaction than what the checkout price was, and Dell wants not only your current business, but your repeat business 3-5 years from now when your current model is out of date.

        When I was a retail manager, when a price was mis-marked,

      • 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

      • actually... they would. I purchased a 120GB WD drive at one point *on sale*. My credit card was overcharged, but I never noticed because it was yet another purchase in a group when building an entire new system. Dell sent me a check for 100$ a month later, and I had no clue what it was for till I went back through my records... It turns out they have accounting practices, and whether over or under where they should be, they fix it, just like any other business.

    • Re: (Score:1, Informative)

      by Anonymous Coward
      then they cry when the deal they KNEW couldn't be true, wasn't true.

      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.

    • Re: (Score:2, Informative)

      by ILuvRamen ( 1026668 )
      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 ma
    • 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

  • Where would KDawson move? (Score:1, Interesting)

    by mi ( 197448 )

    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

    • Re: (Score:1, Informative)

      by panopticonisi ( 1113137 )
      Thank you. Off-topic: Drove upon drove of liberals I knew had planned on moving to Canada, pending election results, but as election results were posted, they all suddenly changed their minds. Well, it's a free country and they're allowed to do that. It doesn't, however, speak strongly for their message, if they don't stick to their principles and threats when push comes to shove. On-topic: I really feel that mistakes should be punished. If Dell mistakenly posts an item below cost, it is their cross to

    • Re: (Score:3, Funny)

      by Daniel Dvorkin ( 106857 )
      many of the articles posted by Mr. Dawson are so obviously (left-)biased

      "It's well known that reality has a liberal bias."

    • Re: (Score:2)

      by hxnwix ( 652290 )

      But recently his postings were all about Canada turning less and less appealing to his kind.
      Would you care to elaborate on this? "His kind" ?!

      many of the articles posted by Mr. Dawson are so obviously (left-)biased
      Right; you surely would brook no bias...

      • many of the articles posted by Mr. Dawson are so obviously (left-)biased
        Right; you surely would brook no bias...
        Neutrality is not a requirement to point out bias. If it's there it's there. Nobody has never done anything wrong: does that mean we all revoked the right to criticise doing things which are wrong?

        That said, I'd rather have articles "obviously biased" than "subversively biased".

        • Re: (Score:2)

          by hxnwix ( 652290 )

          Neutrality is not a requirement to point out bias.
          It is if you want to be taken seriously; the GP seems a bit like the pot calling the kettle black.

          That said, I'd rather have articles "obviously biased" than "subversively biased".
          OK... but how about impartiality? Would an impartial observer conclude that the submitter is biased? Who knows - all we have is some troll labeling everything he doesn't like "liberal."

          • 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

            • Re: (Score:2)

              by hxnwix ( 652290 )
              I don't know; he might have come off better without the bigoted language and labeling. Perhaps less... trollish.

    • Re: (Score:2)

      by Yvanhoe ( 564877 )

      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?

      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...
    • I don't know for sure about to many others, but personally I was rejected over a year-old marijuana conviction upon my attempt to enter Canada after a three-day drive to the border. After which, I was immediately strip-searched and scolded over a copy of Backtrack in the gf's laptop upon re-entry and I know of at least one or two similar cases... I wouldn't doubt similar experience might have had a deterring effect on others who attempted to leave the country. Funny how all of those who are always screamin

    • relative to what? (Score:3, Insightful)

      by oohshiny ( 998054 )
      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.
      • I'm assuming he means it is biased in regards to the large dotted line that appears smack dab in the middle of the political spectrum, midway between the hardcore liberal and the ultra conservative points of view. Unfortunately you have to be a moderate to see it, because both hardcore liberals and ultra conservatives believe that they are already occupying the middle ground and that everyone who disagrees with them is simply foolish/deceived/ignorant.

        The moderates see very bright thinkers on both sides

      • Re: (Score:2)

        by db32 ( 862117 )
        The left wingnut bias comes from turning every stupid decision made by ANYONE in the last years into a right wing conspiracy and attempting to draw lines to blame it on the administration. I dislike these clowns as much as the next, I think their policy on damn near everything is horrible to say the least, but I will simply not give them so much credit to believe that they are evil masterminds manipulating everything Bad(tm) that happens. It goes against my basic belief that they are incompetent clowns wi

        • The left wingnut bias comes from turning every stupid decision made by ANYONE in the last years into a right wing conspiracy and attempting to draw lines to blame it on the administration.

          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.

          • Re: (Score:2)

            by db32 ( 862117 )
            Oh the right wingers certainly do...just ask them about "the liberal media" sometime. Which is interesting because they actually go one step farther in that claim, basically saying that the ENTIRE WORLD has banded together in a liberal controlled media to make good God fearing American republicans look bad. Listening to them talk about how its all just Bush bashing driven by the liberal media is funny... You could sit for days demonstrating that global media is saying roughly the same thing and they will

      • 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?

        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

  • 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)

      by Harmonious Botch ( 921977 ) * on Tuesday July 31, 2007 @08:06PM (#20064931) Homepage Journal

      I was under the impression that the price at which a product was advertised was the price at which it must be sold?
      Almost. They must honor all but mistakes and vandalism. If they make an honest mistake ( and sometimes a judge has to decide whaether or not it is an honest mistake ) they do not have to honor it. Nor do they have to if someone alters their pricing for them.

      • Re:Advertised price != actual price? (Score:4, Informative)

        by smeagols_ghost ( 644286 ) on Tuesday July 31, 2007 @08:11PM (#20064961) Journal
        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.

        • 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

          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".

          • Re: (Score:1)

            by throbber ( 72924 )
            No-one is going to question a price that is low.

            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

        • Re: (Score:2)

          by telso ( 924323 )
          Similarly, in Quebec (the jurisdiction in question), a store must discount $10 off an item's actual price (or give it free if it's less than $10) if the price on the shelf is different from the price scanned at the cash. See details [gouv.qc.ca] (in French).

        • Re: (Score:2)

          by rtb61 ( 674572 )
          The best method for class action law suits against false advertisers in Australia, is simply to rally enough people to complain to the ACCC http://www.accc.gov.au/ [accc.gov.au] and they will sue the false advertisers for you, regardless of any legal loopholes the company lawyers try to invent and pretend are real.
        • We have a similar rule like this in Quebec. The rule applies if you bring an item to the cash where it is subsequently scanned at a higher price than was advertised or printed on any label pertaining to the product (even on the shelf). You have to catch it of course, but you are entitled to the lowest of all the prices minus $10. The first item rule applies to the ten bucks as well. Many stores even have large posters (even electronics stores!) detailing this law to the customers.

          Now to my understanding,
    • That (at least in Aus) refers to in store advertising. If a price tag says an amount - then you are legally allowed to purchase items at that price (unless its an obvious mistake - which why price tags have the name and barcode of the items on them in major stores).
    • 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?

      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.

      • Re: (Score:2)

        by WNight ( 23683 ) *
        But I've seen an extension of exactly that logic to say that "of course free shipping isn't, tanstaafl sonny, we just meant we don't charge a shippin and handling charge".

        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
        • If businesses aren't held to the letter of their agreements, what are they held to?

          You are a big boy now. Don't like the contract? Don't sign the contract.

          • Re: (Score:2)

            by WNight ( 23683 ) *
            Are you fucking retarded?

            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)

    by Hal The Computer ( 674045 ) on Tuesday July 31, 2007 @08:13PM (#20064999)
    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.

  • Unenforcable in the UK (Score:2, Informative)

    by Anonymous Coward
    Statutory Instrument 1999 No. 2083
    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
    • 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 sen
  • 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.

    • Wrong (Score:3, Informative)

      by Hal The Computer ( 674045 )
      This has so many errors I don't know where to begin.

      • 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.

        • Re: (Score:2)

          by jabuzz ( 182671 )
          Not only that it was the Privy Council, not the Law Lords, but hey that's splitting hairs :-)

          • 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".

    • 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.

      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

  • 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.

  • Uh.. not so bad. (Score:3, Informative)

    by sudog ( 101964 ) on Wednesday August 01, 2007 @01:38AM (#20067177) Homepage
    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?

  • the Supreme Court of Canada has just issued a new online contracting decision

    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.

  • 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 g

  • Dunno about arbitration, but... (Score:3, Insightful)

    by itsdapead ( 734413 ) on Wednesday August 01, 2007 @09:35AM (#20069723)

    The case involved a lawsuit against Dell Computer, which refused to sell hundreds of mistakenly priced computers purchased on their website.

    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.

    • Re: (Score:2)

      by mutterc ( 828335 )

      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

    • Re: (Score:2)

      by Oddster ( 628633 )

      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

      • In 1980, if MegaCorp scammed an extra $10 from 1 million of its customers

        ...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.

        Arbitration necessarily precludes class-action lawsuits, which are the only way for a group of individual, damaged small parties to seek recompense against a large offender, such as

    • 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.

      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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