 Okay, folks, I guess we should get started. Welcome. She looks cool of law and our mini-law session tonight. My name is Michael Deterbitt. I'm the associate dean here and a professor in my area of teaching and research is in the area of business law and law and technology actually in the intersection of the two and one of those intersections is in consumer protection. Probably because I'm a consumer and I'm interested in knowing what all of this new stuff has how it's going to affect me when I do purchases online and how we are progressing as a society in relation to doing all of this stuff online and what it means for our personal protections and for just basically what kind of society we want to live in now. And I'm not exaggerating there because you know this brings in issues of privacy and security and all kinds of things and we'll mention some of these along the way, but our primary focus today is just going to be consumer protection online. The title of the presentation is a bit of hyperbole here. It's called apparels of online buying. You know, probably most of you here have purchased online and you've had no problems, right? Stuff you receive it. You're happy with it. You know, you're not worried about your credit card. It hasn't been compromised in any way. So why are we talking about this so much? And we are talking about it a lot. It's in the news all the time. It's just a privacy security basic rights in relation to consumer protection, how those are impacted online. And it's because I guess in a way you're buying on faith, right? To a certain extent. You go in a store, you see the item, you can touch it, feel it, try it on for size, that sort of thing. Can't do that in the online environment. This isn't brand new, because of course we've had catalogs for years as well. So the same kind of thing would have applied there. There's a question of, will you receive the item within a reasonable time of, you know, your order or even more fundamentally, will you receive it? That even that's a fundamental question when you're buying online. Most online purchases are going to require you to input some credit card information. And then there's a whole question there, but what happens to that information? And is it safe? Is it secure? Are you going to have to worry about somebody stealing this information? Having weird charges show up on your credit card, which frankly happens more frequently than you may think, it certainly happened to me. And if we're to believe the statistics, and I'll just give you a couple of these. Canadians spend over $35 billion for purchase of online goods and services annually. $35 billion. And even more surprising is this statistic in the upcoming holiday season, which we're sort of getting into now. The estimate is that 83% of all Canadians will make an online purchase. 83%. That, you know, take away the babies, the infants and that sort of thing, and that number is going to be even higher. I just, I find that astounding. 83% of us are going to be doing that over the holidays. So I guess the question that we're going to start with is something does go wrong. The issue we'll start with is something does go wrong. Fundamental question might be whose law applies. I mean, especially you're doing an online purchase. It's probably in another jurisdiction in Canada or possibly in the United States or somewhere else in the world. Are consumer protection laws for the most part, and I'll talk about how they've been updated in a bit, but for the most part, they're a product of the 1960s. The old notion used to be sort of buyer beware. And consumer protection legislation in the 1960s, sort of in the 70s, ameliorated that somewhat so that consumers who bought from stores or vendors got some protection as to what they were buying and the quality of the goods and delivery of the goods and all those sorts of things. But what if the seller is in another jurisdiction, which is going to be the case, of course, on the Internet? You're buying from another province or even another country. Maybe, and not just maybe, but likely, the laws relating to consumer purchases are different in that jurisdiction than they are here in Nova Scotia. Maybe the privacy laws are different in that other jurisdiction than they are here in Canada. What does that mean in relation to the information that you're providing in relation to this purchase that you're engaging in online? I should tell you, first of all, that online sellers are, of course, very aware of these issues. And I'm going to show you, I think, that they're going to capitalize on these uncertainties for their benefit, not yours. And there's a little bit of a history here, and we'll go through that history, because as I've indicated earlier, this sort of buyer-beware principle that used to be at least the governing principle of purchasing illustrates that you have to be careful, and even more so now because of all of the issues that I just talked about. I should say that those old consumer protection laws that I mentioned from the 60s and 70s have been updated in Canada. I won't bore you with too many of the details here, but there was something called an Internet Harmonization Template, which was adopted by all of the provinces in Canada into our own consumer protection legislation, and it protects buyers from unscrupulous sellers online. And we'll talk a little bit about what some of those protections are. Fundamentally, when you're buying something online, you're entering into a contract. This is an agreement that you are entering into with somebody else. Maybe one party, maybe more parties, contracts are usually written, and the terms are set out in the agreement in the contract, and the law enforces this agreement because the law sees there has been a meeting of the minds. You've got two or more parties who've decided that this is what's going to govern our relationship. This is basic kind of first-year contract law that all law students learn. So, if a product isn't what you agree to, doesn't perform, it's broken or of lesser quality, you can then take your agreement and say, look, you're not living up to this agreement, and you can go to court and sue them that agreement and try to get your money back or some sort of compensation. Rely on consumer protection legislation that says the consumer is supposed to be getting something from this agreement that they didn't really get. So, the internet comes into being back in sort of the late 90s, and our laws didn't really conform very well to this new way of interacting and forming contracts. So, again, legislation was passed in Canada, and what it did was make online buying functionally equivalent to what we used to do in paper. So, there's all this uncertainty about when you're clicking, what does that mean, and where is the offer made, where is the acceptance made? Again, these are details in relation to formation of contracts, but that's essentially been resolved because of this new functional equivalency. So, for example, a web page that you're buying from is functionally equivalent or equal to a catalogue page or a newspaper ad. It's inviting you to come in and buy. So, that's simply all the legislation does. It puts things functionally equivalent to one another. Hitting an I agree button, signaling that you're accepting something, is the same thing as in a written contract, your sign on the dotted line saying that you accept the terms of this agreement. Functional equivalency. And there are other examples, but nevertheless, what I'm trying to get at here is that the law, pretty early on actually in Canada, adopted readily to this new way of doing things and basically reflected the old way of doing things, but just calling it different things like clicking or classifying what a web page is, how that's to be interpreted, when an offer is made, when this acceptance is made. But it's all the same. It's all the same as it was before with some unique twists because it's an online contract and you're using new technology. But it's still a contract. And it's still a contract and you're bound to the terms of that contract. I guess the fundamental issue difference here, though, is that it's a long-distance contract in many cases because you're going to be buying from somebody, as I said, probably in another jurisdiction somewhere. So, if something does go wrong, what are your rights and remedies? The answer to that because of this functional equivalency doctrine is you read the terms and conditions of the contract that you entered into. The agreement reflects the meaning of the minds. The agreement is binding on you and the vendor. That agreement is there to set out all of what you agreed to in relation to the purchase of this particular item. When it's going to be delivered, how much you're paying, what quality it is, all of those things are built into that agreement. So that's where you'd look. When you accepted that agreement, when you clicked I agree, then that contract is formed and all of the terms that were set out in that agreement are going to be binding on you. The problem is you probably haven't read them. I had a statistic here. Let's see if I can find it. There was a study done not too long ago that indicated, I can't find it right now, but it indicated something like 0.1 to 0.2% of all online consumers in North America read the terms and agreements of an online contract for one second or more. So let's take it from one second up to, I don't know, a minute. It's going to be even a much less smaller number, right? Anybody here read the terms and agreements when you buy something online? Oh, okay, we've got some people to do it. I'd advise you to do it for some reasons that we're going to illustrate for you in a bit. But part of the problem with this and part of the problem with the courts actually in looking at these issues is that the courts are treating because of this functional equivalency doctrine that I talked about, they're treating online agreements the same way as their paper-based equivalents. And that would mean that the parties negotiated something together. They came up with the terms and agreements. They put them all in the document. They signed together on the dotted line because it was an agreement. What's happening here is, of course, that the vendor is just putting the information online and saying, you accept it. When you click that, I agree, you're accepting it. And you're bound to the terms and whatever conditions there are in this agreement. They're there for you to read. So you haven't read them, that's not our fault. Now, the courts could in this case say, well, this is a bit different. This is not really a meeting of the minds, is it? Because let's face it, people, and certainly the social science indicates that people are not reading these terms and conditions. Therefore, maybe there should be some out here. There should be some way of giving some consumers some protection in these sorts of instances. So we're going to see that the courts, especially the courts in Canada, have been very, very reluctant to do that. And part of the problem, again, is these terms and conditions are not always accessible, easily accessible. They're there, and you'll find them, and I'll show you some examples of them. They're there, and you're going to be down to them whether you realize it or not. Because, again, you're entering into a contract. It's a legal binding agreement. Let's start with a case that a lot of first-year law students studied called Rutter and Microsoft. The first case of its kind in Canada that happened about 15 years ago. Two law students in Ontario sued Microsoft for breach of contract. They subscribed to MSN for the provision of internet services, and apparently Microsoft then allegedly took payments from their credit cards for the members' contract. They weren't supposed to do that, but they took payments from the students' credit cards. Now, when these students entered into this contract with MSN online, they had to click a button that said, I agree, right, to the terms and conditions of service set out. And those terms and conditions took up several screens of fine print that they just scrolled through or perhaps didn't look at at all. One of the clauses said, this agreement is governed by the laws of the state of Washington, USA. And you consent to the exclusive jurisdiction and venue of Washington in all disputes arising from your use of MSN or your MSN membership. You have just basically given away your right to sue in this case, Ontario. You are saying that if there's a problem, if we have to sue, we have to go to Washington State. Because that's basically where Microsoft's headquarters is, right? But you have to go to Washington State. And the laws of Washington State, not the laws of Nova Scotia or Ontario in this case, will apply to you. And you've agreed to that. Now, so remember I said this is just a contract. It's an online contract, a little bit different in some ways from regular paper-based contracts, but it's still a contract. There were ways out of these kinds of contracts in paper-based models. The plaintiff could argue, for example, like in a fine print contract, that these are very onerous terms. And the students here were weaker parties. And because these were very onerous terms, they should have been red flagged in the agreement. Highlighted in some way. Big bold letters, in red letters, underlined some way, brought to the fore. And as the courts have said this, cases go way back in relation to this, that if these are these onerous terms and there's a weaker party, consumer being the weaker party, then these have to be highlighted for you so that you know what you're getting into. And you'll still see this in paper-based contracts, you'll get insurance policy or something, and you'll see some terms that are really onerous. They'll be bolded and they'll be highlighted and capitalized so that they're brought to your attention. Because the courts said you had to do that if you've got a stronger party and a weaker party. The Ontario Court here upheld the contract and denied the right to sue in Ontario. Took no notice of all of this history of common law in relation to the protection of weaker parties and consumers. Now this was the first case of its kind and unfortunately, from my perspective at least, it set a precedent. And other cases followed in Canada that did a similar kind of thing. Now Microsoft knows what it's doing here. What's it doing? It's putting a clause in the contract that they assume you're not going to see because you're not going to read it. It's our fault for not reading it. Nevertheless, that's the rationale. So that if somebody is unhappy with a cost of 100 bucks or 200 bucks, they're not going to go to Washington State to sue over 200 dollars. It's a way of minimizing liability. That's basically what this is all about. So this started this whole idea of having to read the fine print in an online agreement. Okay. Again, just to highlight what they didn't do that courts have done in the past in small print types of agreements. There were several pages that had to be gone through in this agreement before you could even click I agree. They were supposed to have read all of that stuff. The court didn't consider the culture, if you will, for want of a better word of online buying, that it's more awkward, for example, to do all that than to read the fine print with paper that's in front of you. Didn't consider the sophistication of the parties. Remember the weaker parties argument that courts have upheld in paper-based contracts. Didn't consider any public policy arguments. That is, if you're going to uphold this, basically what you're doing is you're excluding purchasers in your province from having access to the courts in your province. Didn't consider any of that. These are called contracts of adhesion, technical term in law, in that it's all one-sided. There's a more powerful party, and they're putting this to you, and your option is either to take it as is the whole thing or reject it. And unfortunately, people who are buying online are just taking the whole thing as is, and they're not reading the fine print. And the courts are upholding these things in relation to what your rights as a consumer are. It gets worse. From the idea of click-rap, we call these click-rap contracts, this is sort of a newfangled technology language, we start to develop and merge into, and a lot of this starts in the U.S., probably no surprise, and it's been adopted in Canada. We move into something called browse-rap contracts. So, no longer do you even have to click, I agree. Even that piece is removed from the picture. As long as there is a link, a hyperlink if you will, somewhere on the web page, or pages, where the terms of the contract can be found, so you could click a link that says terms and conditions, and you look hard enough, you'll see these on the web pages. You click that, as long as that's there, and it gives you access to what the rest of the terms of the agreement are, you are deemed to have agreed to them. So you don't even have to click, I agree. By just using the website and going through the motions and buying the item, you have agreed to the terms and conditions, without even having to click, I agree. Let me give you an example of that. That's the Dell computer case, a case from Quebec. Dell advertised computers for sale for a price of $89. Now that was obviously a mistake. They refused to honor the contract. They said no, it's too low. So the consumers who thought they had purchased this, these computers for this low price, filed a class action suit against Dell. Now, class action suits, again these are suits whereby a whole bunch of people can sort of collectively join and file an action against a larger entity or a corporation, for example. So if there's a bunch of people that are out $89, then rather than hiring a lawyer or having to go to court or do anything to try to get that $89 back, they might join a lawsuit in which hundreds of people or even thousands of people are parties to, and they put their name on the suit and it's carried by a law firm or lawyer on behalf of everybody. These are allowed in Canada. These are called class actions. The fine print in the Dell case said though that you cannot sue us because in our terms and conditions we have something called a mandatory arbitration clause accessible via hyperlink. So again, if you had clicked on the terms and conditions there, it would have said you agree that you can't sue us for any breach of this agreement. You have to go through this mandatory arbitration process by a greed-upon arbitrator. So why would they put that in? Because it takes away essentially the class action right. They're afraid of class actions because they can end up resulting in multi-millions of dollars sometimes. Apple just... I actually almost joined this one because Apple recently had a download that was supposed to save your battery and of course what it did is slow down your frigging phone and it's almost useless now. And it was a class action set up in the United States but Canadians could join. There was a firm I believe in Ontario that was collecting these and you add your name to it and the action is still outstanding. It takes a while but eventually it will be settled. What this does is disallow that from happening. You are forced to go to mandatory arbitration and you have to do it on an individual basis not on a collective basis like you would do with class action. So if you're out $89 and you're living in Quebec and Dell says you've got to go to and I can't remember where the arbitration was probably in Ontario, you've got to go to Toronto to fight this for $89. Guess what? You're probably not going to go. And that's again, what are they doing here? They're minimizing their costs in this. Right? And it's all because it's in the agreement. You didn't read the agreement and the court is enforcing the agreement. All of this has come to a head recently with a very recent Supreme Court of Canada decision. This came down about roughly a year ago called Duez versus Facebook. Any time you see Facebook you're getting into privacy problems. We might talk a little bit about that later. So this is a Supreme Court of Canada decision. We thought finally we're going to have a resolution to this because of course what the Supreme Court of Canada says is binding across Canada. So Duez, who is a BC resident and a member of Facebook, Facebook creates this new advertising product that uses the name and picture of Facebook members. So you've got your name and some people have their picture on Facebook. Facebook was taking those and using them to advertise products to other members and saying that, you know, you are, let's take something, I don't know. Pick a product. A yoga mat. Good. This person uses this yoga mat and she's really happy with it. You didn't give them permission to do that. That's a breach of privacy. And it was a violation of the BC privacy act. But when Duez signed up to Facebook she unknowingly again agreed to a jurisdiction and choice of law clause that said disputes were to be resolved in California using California law. So this is not really a consumer purchase per se but the principles are still the same except it involves a privacy issue. Now unfortunately it's that privacy issue that kind of throws a wrinkle into this. So she can't sue in BC. She's supposed to have to go to, and this is a serious thing, right? Somebody's taking your picture and basically using it as an advertisement for some product on Facebook that Facebook is getting paid for and you haven't even given permission for that. And yet there's nothing you can do about it in your jurisdiction because the contract you signed with Facebook said California is the place you've got to go to to address this. So we did get some resolution on this at the court that the court was split. Three judges of the Supreme Court of Canada including the Chief Justice said certainty and predictability in cross-border transactions is vital. You agree to it, you're stuck with it. In other words, you're supposed to read the fine print. So that's three judges said that. Another three judges said that it was this Facebook agreement was unenforceable and Facebook should not have done this not because of any consumer issue though but because we're dealing with privacy which has a quasi-constitutional status in Canada. So in other words, it's exalted, right? It's like part of the constitution almost and we can't mess with that. So only one judge actually addressed the consumer aspect of this and said there was no bargaining, no choice, unequal bargaining power and unfairness which would be the analysis that would go into a paper-based contract frankly. Only one judge of the Supreme Court of Canada went that direction. Now, she actually won the case because if you take that judge plus the three who decided it on the privacy aspect you get four to three. But that doesn't help us with the consumer aspect of this because only one judge here has some sympathy for the fact that you're clicking on things that you haven't read and it's designed that way so that you don't read these things. So no real resolution to the problem. And interestingly, no courts in Canada except perhaps Justice Abella in that decision, in the Duez decision have addressed the fact that the culture of online buying is a bit different than, you know, signing something in a document, a paper document. And I guess partly it's our fault because we're not reading these things, right? We're not reading them and I guess you should be. And just let me give you an example. This takes a minute to come on. This was a relatively recent experiment that was done in London where several parents were given free Wi-Fi at a hotspot in London. And built into this was what's called, they called it a Herod Clause which was a very onerous clause and we'll talk about what the onerous clause was in a second. Well, there it is there. A handful of Londoners and some of the capital's business districts unwittingly agreed to give up their eldest child for public Wi-Fi. So here we have, they're saying, look, they've got this booth in London, they're saying, here you go, I'm going to give you a free Wi-Fi. You just have to agree to the terms and conditions. Oh, great, I agree. You read it a little bit more closely, they've agreed to give away their eldest child. This is funny. The security firm that sponsored the experiment says, we have yet to enforce our rights under the terms and conditions. We will be returning the children to their parents. But again, it's an indication, right? How nobody reads this stuff, nobody does and there's no acknowledgement of the courts of this. There's nothing, no acknowledgement at all. Interestingly, depending on the state, in the United States, they're very much more open, frankly, to looking at the fact that you've got a weaker party and what are the circumstances here and they're possibly more open to saying that the consumer will have some protection. In Canada, not so much. Now, there are some legislative provisions that will protect you and we'll talk about those in a bit. But this is still a very big issue in Canada. So be careful, read these things and you'll be surprised at what you're going to find. In fact, let's do some of them now. Let's look at what you're going to find. This is the holiday season coming up. Let's pick. So you're going to buy online from the day. So let's say you did your order and the Black Friday sales are here. That's great. Okay, so how do I know what the terms and conditions are here? Where the heck am I looking? Ah, there they are, right at the bottom. See that, terms and conditions? You're deemed to know these things. That's what the court is saying. So we click them on and let's just see what terms and conditions you've agreed to here. Limitation of liability, that's a common one. Online shopping terms, perhaps some warranties. There's one here that I wanted. Oh, here we go. You agree, here you are in Nova Scotia. You agree that all matters relating to access, use, or purchases through this website will be governed by the laws of Ontario and the federal laws of Canada applicable to Ontario. Courts of Ontario have jurisdiction. You are responsible for complying with any local laws. So there you go. There's a choice of law clause right there. You are submitting yourself to the jurisdiction of Ontario if you want to sue on this particular contract. It's interesting to do the next line as the United Nations Convention on Contracts for the international sale of it. We'll not apply. We'll not apply. So if you arrive in a country and you want to buy some of this big company and you have an issue, you've got to know. Well, I guess it would be the jurisdiction from, you would still have to be subject to laws of Ontario and the courts of Ontario because that's where their head office is, you know. Okay, so there's that. There was another thing here that I thought was interesting. Okay, online conditions. Well, here it is. Okay, so you buy something from the Bay. It says all prices listed on this website are subject to confirmation. HBC will notify you by email within two business days of making a purchase if the confirmed price of an item you have selected differs from the price on the website. So you may not, you think you may have purchased something but guess what? You didn't because this says that they've got two business days to get back to you. I bet you didn't know that when you bought your suit or whatever from Hudson's Bay. If you don't receive an email from us within two business days, we're deemed to have confirmed the purchase price listed. So let's look at another site. Let's look at everybody's going to be purchasing from Amazon. It's not that faith, but it is unreasonable. But the courts, I guess that's sort of my overwhelming, my overarching point here. The courts don't seem to be willing in Canada to apply the test that they have historically done so in paper-based contracts to online agreements. Why that is, I don't know. And maybe it's almost patently unreasonable, isn't it? To suggest that 0.1% have read the contracts and understand. That's a social science data point, but that doesn't mean that you're not supposed to read the contract, right? And the courts are assuming that if you're entering into this agreement there's a meeting of the minds and you've decided that you're going to do that. I don't disagree with, I mean, that's my point here. You're getting my point that this is unreasonable. It doesn't fundamentally make sense, but the courts are saying that this is the rule. And of course that's why it's in there, because the vendor knows that it's unreasonable and it's not going to happen. But the courts, again, don't seem to be picking up on that. And I don't know the answer to that. I don't know why that is. I can tell you that I was at a conference in Ontario five or six years ago, dealt with another case that we're not talking about here, but it's the same kind of thing where it was Rogers, Rogers' phone system. And they said that they were able to change the terms of service online without even telling you. That was an egregious kind of thing. It was really fundamentally wrong. And the Ontario government actually changed their consumer protection law to stop that from happening. But again, it went to court and the court said that they could do that. And I criticized that decision. It was a conference of judges, and the judge who wrote the decision was in the audience and was too happy about it. I mean, don't they buy stuff online too, right? So I guess what I'm saying here is this area is crying for some sort of law reform in relation to protection of weaker parties because the courts are not doing it. And as we'll see, there has been some movement in that direction by the legislatures to give some protection here because the courts don't seem to be willing to do it. My question is, even though we need any word, I understand everything because sometimes we make. What can we do? Like not buy anything? I have to buy a computer. I have to buy a computer. You can still go to the store, I suppose, and buy it there. But you're right. A lot of stores are closing down. I mean, you know, you go to New York now or any big city and the number of stores that have closed down is amazing because Amazon is taking over, right? They're the new Sears catalog, really. They're taking over everything and a lot of bricks and mortar stores are not able to make it. So as this progresses and as it gets more concentrated, I think, you know, there's got to be some action taken to prevent this kind of thing from happening. And as I said, courts in the United States have been, depending on the jurisdiction, because it's very state-based, certain states are more conservative than others, typically California is very liberal and they are very consumer-friendly in the legislation that they passed. Even the Supreme Court of the United States has been more liberal on this issue than the Supreme Court can. Or is that happy enough to have cases to resolve? Yes. Let's take it to California. Well, let's just... Okay, so we've looked at the Bay. Let's look at a... Well, let's say you want to fly somewhere. Air Canada's got its Black Friday sale on. That's nice. Where is the terms here that you're going to be bound to by entering into this agreement? Terms of use, there they are. And again, you are deemed to have read these things, right? You don't even have to say I agree. You are just... Because those terms of use, this is a Browse-Rap agreement and Browse-Rap agreements are the norm now. You don't even have to click I agree. It's not as frequent anymore that you have to do that because as long as there's a link there and it's accessible via the website, even though they put it in tiny print at the bottom of the page, that's enough. Okay, so terms of use. You could also be... You need an account obviously to purchase through the website. So once you're putting in your password, your username, you're going to agree probably to that and accept it. So they'll pop up another... The agency knows terms of use. No, it won't. Not usually. No? You're right, you have to do all of that stuff. But basically what they won't pop up, they'll be there and you're deemed to have... They're there for you to open up what you choose to. But again, and if you don't, then that's your problem. It may not necessarily have an account, but it's a lot of agreeing to your password and setting up this account, you're also agreeing to the terms. I guess some sites do that, but that's certainly not the norm. I'm just thinking I recently bought an airline ticket. I don't think that happened. Well, let's just look at what they say here about governing law. Interestingly, for Quebec residents, these terms used shall be governed by construed or interpreted in accordance with the laws of the province of Quebec and the laws of Cannes legislation has been passed in the province of Quebec that says you can't contract out of the province of Quebec. So they're very consumer protection friendly. So Air Canada's terms reflect that. For non-Quebec residents, these terms of year shall be governed, construed or interpreted in accordance with the laws of the province of Alberta. What? Where is Air Canada's headquarters? Winnipeg. Actually I think it's in Montreal now. The head office is... They're counting for Winnipeg. All right. Their busiest center is Toronto. I think they head office in Montreal. They're saying that they've got a big department in Winnipeg. Why Calgary? My guess, and it's just a guess, is that the consumer protection legislation in Calgary is weaker than elsewhere in Alberta. You are deemed to have read this and you are deemed to... If you've got a problem, you have to go to Alberta to fight it. Now I should say that in Nova Scotia, we do have a small claims court act that says you can't contract out of small claims court matters. So there's some protection there. So if you get screwed by Air Canada or WestJet or anybody else and they're saying you've got to go to Alberta to litigate this, you can go to the small claims court in Nova Scotia. Now, you then have to get that enforced. If you get a judgment, you then have to get it enforced and it might take you into another jurisdiction. But at least you have the small claims court in Nova Scotia to go to and the limit is $25,000. So it's a significant, significantly high enough number to go to small claims court with. So that's certainly... But again, that's a provincial matter that the legislature has passed that to, again, protect consumers. Interestingly, so this is the governing law provision Why doesn't Air Canada have that provision in there for Nova Scotia saying that we can't if you're not a Nova Scotia resident that's similar? Yeah, because it's not the Nova Scotia consumer protection legislation that does this. It's the small claims court. So the small claims court, you'd have to go to the small claims court in Nova Scotia to make your claim even though the governing, it's weird and this gets weird in conflict of laws even though the governing law might be the law of Alberta. But you can have your hearing in the Nova Scotia small claims court. Look at this one. So they're forcing you to go there but you agree that Air Canada, if they got an action against you, they can commence an action in any court of competent jurisdiction to enforce the terms of agreement. And you've agreed to this. You've agreed to it. It could? Or in another country. I don't know. Who knows, right? Okay. We looked at Amazon, right? A lot of people use these border-free kinds of sites now for buying and selling. Because it collects vendors from all over the place and you can, for example, through this site you can purchase stuff from Creighton Barrel or from Harrods or from all kinds of places from around the world and it's consolidated by this site. But again, they would have terms and agreements here somewhere. Again, usually it's right at the bottom of the page that it's even hard to find. Terms and conditions. Let's see what we've got here. I mean, there's all kinds of other limitation of liability stuff here that we're not getting into, but again, they're going to be in favor of the vendor. I can assure you. There's a lot of information on this site. There's a lot of documentation and materials on this website are appropriate, available or legal even in any particular jurisdiction or location. Those who choose to access the website do so on their own initiative and responsible for compliance with local laws. The validity and interpretation of this agreement and its relations to the party shall be governed by the laws of the state of New York. They're going to do their agreement because they're sort of a consolidator. There might be other laws that apply from buying something from Harrods, for example, which takes you into the UK. So, you know, be careful, I guess, in relation to this stuff because you are going to be bound by these agreements. There are, as I said, there's some protection. Nova Scotia has a small claims court act. There's some jurisdictions in Canada for arbitration for consumer contracts. For example, Ontario, a couple of other jurisdictions have done that. Nova Scotia hasn't. So, the agreement much depends on what protections are built into the individual legislation of the province that you're located in. Okay. Excuse me, even when you mentioned about the Facebook case. Yeah. Although they lost in Canada, they probably still were able to maintain that in the US and other... Well, they would have to go to the other jurisdiction that they said that Facebook says you had to go to, which I believe is California, but I can't remember. They would have to go there to litigate. Now, but at the Supreme Court level, they actually won because it was a privacy issue, right? But if it was just a consumer protection issue, they wouldn't have won. I don't think. I don't know because it wasn't just a consumer protection issue. The privacy was mixed up into this. But like in the United States, they still had no right to privacy because... Yes, that's right. Well, it depends on, again, the jurisdiction, but you're right. The right to privacy in the United States is much less than what we notionally think of as the right to privacy. Which gets at an interesting issue, frankly, because, again, you're dealing with the world now and you're dealing with online buying and stuff. The European Union, for example, has taken an entirely different approach to all of these things. Their notion is this is new. They saw the writing on the wall that this is going to be a problem and it's very consumer focused. And it puts the onus actually on the vendor, not the consumer. And they give the consumers all kinds of rights. And that's, of course, across the whole entire EU. Australia as well. I did a study of this for the federal government actually. Made some recommendations to change our legislation. Nothing came of it, but nevertheless. The focus in North America is very different. Focus in North America is actually the reverse. The idea that there's supposed to be a meeting of the minds and it's up to you to make that decision as to whether you're going to accept something or not. No notion at all of small print or the nature of online buying and having to scroll through stuff and the fact social science demonstrates that nobody does it doesn't matter. Because couldn't it be accused of fraud if they said they were promoting this particular person's face selling a yoga mat? Wouldn't that be fraud that she consumed for fraud to the company? It depends on what they did and how they did it. It could be fraudulent in which case you're getting into criminal law if it's fraud. But I don't think it amounted to that in this case. It just was basically taking her likeness without her permission. I guess that's a little bit fraudulent because you haven't gotten their permission. The implication might be that she did give this permission to have this use. But it doesn't really amount to the in law we call it the mens rea the notion that you have to have that intent to be fraudulent. I don't want to leave you without thinking that there aren't any protections because there certainly are with respect to online buying. I mentioned before that there's this internet sales contract harmonization template that the provinces developed in early days of the development of the internet. Nova Scotia has adopted it into its legislation. So consumers have to receive a certain amount of disclosure when they're buying something. It's pretty minimal. The fundamental information relating to the identity of the supplier, their name, their business address, telephone number, email address all has to be given. It has to be a fair and accurate description of the goods. The cancellation and return and exchange policies have to be set out. All of those things have to be part of the agreement if you read it. It should be there. It should give the consumer an express opportunity to accept or decline the contract before it's entered into. I don't know if you've ever noticed, but you go to Amazon, it's usually two or three times that it comes up and says are you ready to go or are you ready to click before you actually do the, that's because that's required. Legislation all across Canada now has that in their consumer protection legislation that says you can't make a mistake in agreeing because they give you some opportunity to say yay or nay. That's under the legislation. You are entitled to cancel if certain things happen. If that disclosure is not made, for example you can cancel the contract. They have to provide you with a copy of the contract and usually that's done by an email within 24 hours, you'll get an email or something. They don't do that. You're entitled to cancel your contract. If the goods are not delivered within 30 days, you're entitled to cancel the contract and get a refund and if the company doesn't do it, you can go to your credit card company. This is the neat part of the legislation, the best part of the legislation actually, because if you cancel and the money's not refunded from the vendor, you have to go to request the credit card company to reverse the charge and they have to do it. They have to reverse that charge. Again, that's only if you haven't received the goods or if any of these other disclosure things were not made as required. Well, it's interesting. If you're using a credit card it's likely going to be a Canadian credit card in a Canadian bank. If you used an American credit card that's a good question. You're still doing it in Canada within the jurisdiction of Nova Scotia. I've gone through this. I gave all the documentation that would happen to the Air Canada. Yes. And they sent it back to the Air Canada. Did they say the reason why? No. If Air Canada accepted the credit card and you're within the jurisdiction seems to me, although you'd have to do a little bit of research on this, but that credit card would be captured by the legislation. But although if it's an American bank, it's a foreign bank, right? I don't know the answer to that offhand, but it seems to me that the legislation should capture that. By the way, in these kinds of cases don't take no for an answer. Keep at it because oftentimes it's a low-level person who's just been told to say no. To keep at it and keep at it you might actually but from my view, for many consumers, it's not a credit card, it's an anti-sale. It is, but again, we're dealing with purchase and sale here of items and not a service. So this protection relates to buying something online like a consumer item. Whether or not a service is covered, well, let me see if a service is covered. It has to be a consumer contract. So a consumer contract could be a service contract as well. So it seems like it should be. I'm fudging the line here a lot because I don't know the actual answer, but... Seems to me that it should be. It really does. So you would be entitled in that case to, if they didn't reverse the charge, you're entitled to go to court. Now, do you want to do that or not? Go small claims court. You can do that. You mentioned owner's terms and you elaborate on that. Yeah, there's no, I can't say that there's a legal definition of owner's terms, but if it looks like an owner's term, it's probably an owner's term. So if you're required to go to Washington State to litigate something that's a charge of $100, that's an owner's term. That's something that's really going to affect your rights as a consumer. But why isn't that being used to test the court and why are it an owner's terms? What's the problem? I don't know. That's my fundamental question here. I don't know why courts seem to think that the online government is so fundamentally different from the paper-based one because they would, I have no doubt, they would say that that would be an owner's term in a paper-based contract, in a consumer context. Is that a lack of the lexical? I think it's just, again, the way the common law works, you get a case. We started with this Rudder and Microsoft case, sets a precedent. The way the law works is the common law without legislation, a precedent is set and other courts look at that precedent and adopt it and it just sort of snowballs from there. There are certain public policy issues in relation to the decisions that the courts make. Look at the split decision of the Supreme Court of Canada on the due as decision. Three judges said, certainty of contract by golly, we've got to have that. That's fundamental to our society and we're not going to interfere with that. Three judges said, well, no. Privacy is quasi-constitutional right. We have to interfere with that. That's up there with right to a fair trial. This is part of our constitution. You can't interfere with that. Two diametrically opposed views. And how can that be reasonable? It depends on your definition of reasonable. I don't think it's reasonable for the courts to say that in the due as decision that she would have to go to California to litigate. I don't think it was egregious what Facebook did. They didn't. They're the Supreme Court. I'm not. Reasonableness standard is basically what the court is going to say is a reasonable standard. They're supposed to reflect society but there's a bandwidth there. It's not nobody all agrees on the same thing. It's almost like a political party. Political parties have different views as to what is reasonable. People on the left would say something is reasonable. People on the right would say something else is reasonable. It just depends on the context and how you view the whole situation and how the law should operate in that situation. The making of law is not something for anybody with a weak stomach. At the end of the day usually comes out okay. But there's a whole starting in first year law we study cases where you sort of scratch your head and think how could this possibly have been decided this way. And yet the rule of law guides society. We have to follow it because if you don't follow the rule of law you have anarchy. So the idea is to try to convince. That's why we have litigators. You try to convince the court that this is bad policy or this is good policy. This is what things should look like. And intersecting with that of course there are different factors as well. Efforts put into politics as opposed to the law. If EU has the political will and North America doesn't. And the law societies have nothing. It's the political will that's driving the agenda. Well the law societies just regulate the profession. But you know the political will part of it is actually quite true. I think that's right. It's a cultural than the culture in North America in relation to protection of consumers, maybe they have a view of stronger consumer protection mentality than we do. I have no doubt that that's the case. We have an aversion, for example, more of an aversion to higher taxes in North America than they do in Europe. It reflects the society, the law reflects the society in which we live. I happen to agree that some of these things are just unreasonable. If you were afforded the opportunity to speak to our elected legislators in Parliament Hill, what sort of changes would you like to see to the consumer laws? Well, I've made some recommendations actually to Parliamentary Committees and to Department of Consumer Affairs in Ottawa. We could talk about some of the issues that well, let's talk about one. One is on drip pricing. There's another whole issue that I was going to just mention. So you buy something, there's a price that's attached to it, and as you get into the agreement or as you get into the price, you're clicking this, clicking that, and you finally get to the final sale price, and all of a sudden it's double the amount because there's excise tax, there's another form of tax, there's freight charges, there's transportation charges, there's this, that, and the other thing, which all add up to a much larger sum than what you agree to. The EU has a very simple straightforward rule that if you are targeting consumers and you put a price on it, except possibly for taxes because the taxes might differ depending on the jurisdiction you are in the EU, you have to put the full price there. That is, no questions asked, that's the price you're going to get. You do that in Canada, chances are, depending on what you're doing and what you're buying, you're going to get some other additional costs layered in there. Now there has been some solution to this, there's been some movement, for example, a few years ago. Remember when you bought an airline ticket when oil prices went sky high? They had, okay, you're buying a ticket to Vancouver for $350 as well, that sounds pretty good. The end of the day after taxes are added on and the fuel surcharge is added on, which wasn't part of the original cost, you're paying $850 for the ticket, and I'm not kidding, that's the difference, but fuel charges are so high that oftentimes they're more than the ticket price. That's been changed and now Canada's legislation through the Competition Act, which is a federal piece of legislation, says you have to have all-in pricing. That kind of recommendation, I think, could be made in relation to all consumer protection issues in relation to drug taxes. That's a newer thing that's come along since then, but you're right now, if you want to choose your seat, and you have to choose your seat now because if you don't, you might not get on the plane, that's an additional 30 bucks or something, or you want to check a bag, that's an additional 30 bucks, but those still are optional things, I guess, notionally optional anyway. One of the big problems we have still is with loyalty programs in Canada. If you are an airplane member and you want to fly somewhere in Canada, 25,000 points sounds like, you know, you've got that and you use it and you think you're going to get a free flight, well guess what, you don't because those fuel charges will be added on still, so you have to pay that cost in addition to the 25,000 points. And again, some of the recommendations we made is that fix this because the European Union does it, it's easy, easy fix, consumer friendly, didn't happen. I don't know why. State public pressure, I mean myself coming from the European Union, I found very strange that the price, at least not full, but everything before tax and what actually paid on the register, increased the story of that one. Okay, it's not this much, it's actually more. Taxes are usually, you can't put an inclusive of tax because cities sometimes charge tax, states and jurisdictions will add their own tax, so that's harder to do. So you know the price that's there is the price you're going to pay. Yeah, that's not the case here. Although it's better, it's better than it has been. There was a case, Bell Canada for example, competition bureau charged Bell Canada because they were advertising packages for television and online stuff on the Bell Canada website. Looked like a good price, but again as you go, it's called drip pricing because the price, you know, pricing gets higher as you go down through the purchasing process, you have to rent modem from Bell Canada in order to get the price of what they were advertising, which added something like 20, 25 bucks to the cost of what they were advertising. They were fined heavily by the competition bureau. So there's some movement here, there's some movement here to address these kinds of issues. Certainly there's more movement, I would say in the legislatures and by Parliament than there is by the courts. Why the courts have been reluctant to do so is, I just don't know the answer. And I would also say that despite the fact that there has been some movement, particularly federally, but also provincially, there's still a lot of long way to go. And as I said, we made, we did a report about five years ago on issues relating to unfair contract terms, drip pricing, astroturfing, false reviews, that sort of thing. I don't know where it is. It's just sort of sitting on somebody's desk somewhere in Ottawa. I don't know. You know, they paid us for it. It was a lengthy contract. We published the results. But it just doesn't have the high priority, I guess, of Parliament. They're more concerned with other things. And they do have a lot to be concerned with. And consumer protection just doesn't seem to be at the top of the pyramid. Any other questions? Question, Michael, but I just wanted to let you know two days ago, CDC had a story on this exact topic involving Air Canada. And it's really well written in this comprehensive. I just thought I'd mention it in case people wanted to look it up to Google. And the gentleman's name is Claude Nebler, N-E-E-L-E-T-T. And he ended up with a charge from Air Canada. He didn't think it was fair. And so it's worth googling that, especially for the gentleman in front of you who had a problem with Air Canada. He went over, well, he saw that one happen. But I guess the point was that because consumers can't go to court over $200, embarrassment on social media seems to work. So they gave this guy a good thing to run around until he went to a news outlet who then started investigating it and immediately air Canada offered him a refund plus an additional $200. Again, that's an end run. That's not a legal issue. That's just a public relations problem. It's almost like that's where consumers have to go these days. Well, that's unfortunate, though, isn't it? It is. In that case, they referred to their additional terms and that they're not responsible for that third party operation of their website, which is by another company. So they're trying to blame another company for the malfunction that kept them in this car. But exactly what they did. But the contract is with Air Canada. Exactly. And they engaged that company to host their website. They paid them. So they had the corporate responsibility to get their chance to blame another company. Back in the 60s, this is kind of what happened. There was the Ombuds sort of movement and that kind of thing happened. A lot of radio stations and TV stations had Ombuds people involved. Legislation was changed. Legislation was changed to reflect consumer protection issues. But now we've got the internet comes along and changes everything. So that legislation doesn't really help us too much because we're dealing with other jurisdictional issues and that sort of thing. So maybe this kind of route is being used again, right? Because we're being set back, frankly. Consumer protection has been set back by 10 to 15 years by the advent of the internet. And maybe we have to engage in this other way of doing things for a while before the legislatures and parliament and the courts catch up. Courts are notoriously slow by the way to catch up with developments in society. It takes a while before decisions make their way to the courts. And by the time they get there, you know, issues can move down to other things. It's a lengthy, lengthy process. Any other questions? I think we can talk about other issues like privacy. But my views of privacy are similar that- Well, when I used my social media accounts to try and grade Canada, I put my claim ID number that they had sent me back. I had an immediate response that asked me to remove my tweet because of that personal information on it. Okay. Immediate. It was immediate. Yet I hadn't heard it back from my original tweet. It wasn't called me. I can give you some practical recommendations in relation to buying and selling online. One is use a credit card because of the fact that you can, in fact, get credit card reversal. It's going to take time. It might be a pain in the neck, but at least that remedy is available to you under our consumer protection legislation. So use a credit card. Don't use a Wi-Fi hotspot to do anything online. Just don't do it because they are not safe. And you're going to- Anybody, I could do it. That's how simple it is. You can find out what somebody's credit card number is or password or anything in a Wi-Fi hotspot. Don't do it. Use a secure Wi-Fi system. Don't allow a site to store your credit card information or autofill. I get this from my bank all the time. Do you want us to just autofill your passcode? No. If I lost my phone or something and somebody, I was able to get into my information, they could go to the banking site and my passcode would be filled in. They could have access to my bank account. Don't do that. I can't imagine why the bank is even asking me to do that. It's just stupid. So don't do that. If you're on a website and you're entering your credit card information, make sure it's secure because not all websites are. Usually it's HTTPS, so you get that additional level of protection. So there are things you can do to protect yourself. And having said that, I'll end really where I started, which was that in most cases, you're going to be okay. In most cases, you get what you're paid for and everything works. But when it doesn't, you're kind of trapped in this myth of where we are with consumer protection in the internet world. And we haven't even talked about privacy because privacy is a whole other realm and particularly on social media. I'll just say one thing about that. I mean, the way the courts work and the way the law works generally is that it tries to recognize what the reasonable expectations of the parties are, its citizens are. What are your reasonable expectations? Is there a reasonable expectation of privacy? Certainly Mark Zuckerberg says no, there's not in the online world. I would entirely disagree with that and say there is. But when I see what people do on their cell phones, giving out information left and right, not caring of what they put online, particularly on social media, maybe we're there now. Maybe society doesn't have a reasonable expectation on social media because particularly the younger generation, they're doing everything on it. And if that's going to be the case, then I guess society will have to say there is no reasonable expectation and therefore there is no privacy. The laws are supposed to reflect the needs and wants of society. They should. Absolutely. I mean, I agree with you totally. I can't believe some of the things that people do online. Not particularly online, but so much as on Facebook and those kinds of things. And of course, Facebook has lost all sense of reality to me with the kinds of things that they're doing with algorithms and election results in the United States and all that sort of thing. Okay, any other questions? Yeah. Yes. Well, if you're doing something online, that's the, remember that I said functional equivalency, that's the functional equivalency of writing. Our legislation now says that sending an email or, you know, entering into a contract online, that's the same thing as if you have a written document. So whatever applies there should apply similarly. So there could be a negotiation back and forth. That could, that could happen. I'm a part of the agreement with something that looks like, yeah, this is the price of the product and shipping would be generally free. But if it's not, you're going to let you know. And in my mind is like, you're just going to let me know and I'll be bound by this. So I'll be given the opportunity to say, oh, no, thank you. I don't want that. Well, it depends on where you are with the agreement. If you've given them your credit card number, you're probably out of luck by that point. But it sounds, it sounds to me like you haven't settled, you haven't had a meeting of the minds yet. You're still negotiating. So it depends on how far you go down that road, whether or not you've got an actual contract. But I played with it and I didn't put the price card information. But by the looks of it, you have to actually make the purchase. And at this point, he said it's free. But then it goes through terms and conditions, say, well, sometimes there are certain charges and stuff. And if it's out to people, they're going to give you a call. Okay. So that's drip pricing, right? That's adding on to the cost after you've entered into the agreement and stuff. That, and depending on when they do that, that could be if they're putting that charge on after the fact, that could be something that you can actually not have to pay. Because the meeting of the mind happened at the time you agreed, right? You put in the credit card number and either click, I agree, or, you know, just sent out the information in which case it was a browse-wrapped contract. Again, it all depends on what the information is there that led up to your agreeing to go forward with the transaction. If they're coming up with something new after the fact, and you agreed that they could do that, then that's okay. If they're coming up with something after the fact, and they didn't raise that with you before you clicked and agreed, then that's a different story, right? The idea here is you have to have an agreement with the party, but two parties have to come to an agreement. Well, at this point it seems like they're only going to have to agree that they can charge you more. They won't do it. They shouldn't be able to, they shouldn't be able to unless you agree that they can do that. What is the difference in terms of conditions of the set? You didn't have to abide by those terms. You didn't have to enter into the contract in the first place. That would be the response for a situation like that. So be careful out there when you're buying stuff, okay? Thank you very much.