Consumer Protection

CRTC Proceedings


Law Reform

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.

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.

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:

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.

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 37748Bell 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.

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.

Bell et. al. v. Amtelecom et. al., FCA File No. A-337-13

Crookes v. Newton, 2011 SCC 47, (Defamatory liability for hyperlinking)

In late July, 2007, CIPPIC followed the lead of public interest groups in the USA and Europe by asking Canadian competition authorities to review the proposed merger of Google and DoubleClick on the grounds that it will substantially prevent or lessen competition in the online targeted advertising market.

On June 9, 2006, CIPPIC, together with the Public Interest Advocacy Centre (PIAC), filed an application for leave to intervene in the Supreme Court of Canada appeal of a Quebec Court of Appeal decision by Dell Computer Corporation. Dell was appealing a determination that the mandatory arbitration clause in its standard terms and conditions of sale was unenforceable against consumers because it was not properly brought to their attention. Dell merely included a hyperlink to the terms and conditions of sale on its website.

The term Trusted Computing refers to a computer hardware and software design paradigm pioneered by the Trusted Computing Group that aims to make personal computers more secure. The technology ensures that a computer only runs trusted software, and only communicates to other computers that are also running trusted software. Trusted Computing has the potential to increase computer security, but is also controversial because it transfers some control of a computer away from the user to a “trusted” third party.

Cloudmark's recently issued 2015 Q1 Security Threat Report demonstrates the initial effectiveness of the recently enacted Canadian Anti-Spam & Spyware Law (CASL), SC 2010, c. 23, in reducing the amount of unwanted spam in email boxes in Canada and abroad. In the 8 months following the coming into force of the law, the report notes a 29% reduction in the average amount of spam received by Canadians each month. It notes an even more significant 37% reduction in spam sent from Canada to the United States. The larger reduction in US-bound spam is unsurprising, as Canada (who was one of the last countries in the developed world to finally adopt an anti-spam law) had become a spam haven, with 78% of all Canadian spam being US bound. By contrast, only about 50% of spam received by Canadians is from the United States, which has regulated spam to some degree for many years.

With respect to Canadian-received spam, the report notes that only about 17% of unwanted spam email received by Canadians relates to fraudulent "bootleg pharmaceuticals, diet pills and adult services." This amount of spam was reduced by about 5% in the months since CASL came into force (29% overall reduction x 16% of all spam). The most marked reduction, however, was from 'grey area' marketers, which the report describes as "unscrupulous email marketers" who "grow[] their mailing lists by co-marketing or easy-to-miss opt out checkboxes." The 24% reduction in this brand of unwanted email spam (which the report terms as 'legitimate' because it is legal under U.S. spam laws) affirms that the broader approach to spam adopted by CASL is necessary to make any meaningful inroads in spam reduction. CASL adopted a definition of 'spam' that allows Canadians to decide for themselves what emails they do or do not want to receive, whereas the US anti-spam law relies on easy to abuse 'opt out checkboxes'. And Canadians have taken to the law in droves, with the CRTC receiving an unprecedented 47,000 plus complaints against unwanted emails in just the first month after CASL came into effect.

Regulators provide guidance on mobile privacy, tracking & advertising

TNC CRTC 2012-557, proceeding to establish a mandatory code for mobile wireless services (national wireless customer protection)

TNC CRTC 2011-77, Review of billing practices for wholesale residential high-speed access services (Data caps & competition on pricing models in wholesale)

Telecom Public Notice CRTC 2008-19, Review of Internet Traffic Management Parctices of Internet Service Providers (Net Neutrality & throttling of peer-to-peer services)

In the summer of 2005, CIPPIC assisted an individual with a series of hate speech complaints under the Canadian Human Rights Act.

On May 29, 2009, CIPPIC submitted a letter to the Financial Services Commission of Ontario, calling for an expansion of the protections found in the Ontario Consumer Protection Act, 2002 so that these protections would apply to financial services as well.

Canada's 2010 Digital Economy Consultation

On November 3, 2004, CIPPIC Associate Alex Cameron presented a brief to the Senate Standing Committee on Social Affairs, Science and Technology on Bill S-9, proposed amendments to the Copyright Act that would give photographers first ownership of copyright in the photographs they take.

On January 30, 2004, CIPPIC filed comments with the Ontario Ministry of Consumer and Business Services (MCBS) on its draft regulations under the Consumer Protection Act, 2002, as they would affect online transactions.