New SONY TOS Blocks Class Action Suits
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September 15, 2011, 11:25 PM
Join Date: Dec 2009
Location: Richmond, B.C.
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As long as duress is not involved, there's few instances where laws prevent you from signing an agreement that does not violate some other law (as in, you cannot be held to a contract agreeing to rob a bank) in either Canada or the U.S.
The test is generally the 'reasonable person' standard. Would a reasonable person understand what they're agreeing to by signing this contract? Would they read such a contract before signing it? Keep in mind 'reasonable' does not mean 'average.' The average person might not read the EULA/TOS, but a reasonable person would, precisely because they contain important clauses such as this.
However, Canada does have such laws in some provinces. Ontario, Quebec and Alberta have legislation which prohibits arbitration clauses which limit class-action lawsuits. B.C. does not have such legislation, but in March a B.C. woman won the right at the Supreme Court of Canada (5-4) to pursue a class-action lawsuit against Telus for deceptive business practices (using an unadvertised definition of "airtime" to hike fees charged to customers). The arbitration-only clause in a business contract is only affected by deceptive business practices however, since the case relied on a violation of B.C.'s Business Practices and Consumer Protection Act
This overturns, somewhat, prior SCC decisions such as
Rogers Wireless Inc. v. Muroff
which upheld arbitration clauses in private contracts. I haven't read the
Seidel v Telus
decision, but I expect the difference is that Muroff was a private dispute, while Seidel alleged illegal behaviour by Telus.
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