reply to HiVolt
Re: SaskTel: How much is 800Meg worth? $10,668.38
said by HiVolt:Read Kanitz v. Rogers for a real eye opener about user agreements. I have lost the link for the excerpts from the analysis quoted below but you should be able to find it via Google.
What's really sad is the lack of consumer protection laws... SaskTel (or whoever) can say on their website or agreement that the charge is $100/MB, or $100/minute... Does it make it legal or fair? There's often been discussion that a lot of the language and terms in user agreements is not really legal.
To the best of my knowledge, this decision has not been overruled by a higher court.
Kanitz v. Rogers, Ontario Superior Court of Justice 2002
The amendment clause
The amendment clause found in Rogers service agreement states that:
"Amendment. We may change, modify, add or remove portions of this Agreement at any time. We will notify
you of any changes to this Agreement by posting notice of such changes on the Rogers@Home web site, or
sending notice via email or postal mail. Your continued use of the Service following notice of such change
means that you agree to and accept the Agreement as amended. If you do not agree to any modification of this
Agreement, you must immediately stop using Rogers@Home and notify us that you are terminating this
A clause like this strikes me as simply amazing. If it turns out that this kind of clause is widely accepted by the courts, I
encourage absolutely everyone that is in a favourable enough position to make the other party agree to it, to include
such a clause in their contracts. There really are no limits to the usefulness of a clause such as the one above. However, it
seems rather unlikely that anyone (be it businesses or consumers) would willingly make an informed decision to agree to
a contract, which the seller/provider could alter in any way it sees fit, at any time it sees fit, even without directly
informing the other party of the changes made. Thus, the fundamental issue of the actual value of a clause, as the one
used by Rogers, is directly dependent on the power balance between the parties. That is; only an uninformed party, or a
party with no other options would agree to be bound by a contract provision as the amendment clause used by Rogers.
The conclusion I draw from this, is that, a clause that no reasonable person would willingly make an informed decision to
agree to, must be seen as unjust and unenforceable; at the very least in cases of non-negotiated business to consumer
(B2C) agreements. Justice Nordheimer did not reach such a conclusion, and indeed, did not even discuss the
reasonableness of the clause in question.
The issue of notification
The amendment clause stated that Rogers would notify the customers of changes made to the original agreement. This
could, in accordance with the clause, be done by posting notice of such changes on the Rogers@Home web site, or
sending notice via email or postal mail. As Nordheimer J choose not to discuss the reasonableness of the clause in
general, nor was the reasonableness or suitability of these forms of notification discussed. In fact, Nordheimer J happily
accepted that the only issue that should be taken into account in assessing whether notification took place, is whether the
notification was in a form provided for in the contract:
While I accept that one can fairly assert that the defendant could have done more to highlight the fact that the
agreement had been amended, that is not the issue. The issue is whether there was notice given of the
amendments as contemplated by the terms of the user agreement.
This is a dangerous way of thinking and the danger of it can easily be illustrated by an absurd example of what could
have been included in the clause in question:
Notification can also be given by notes scribbled on any toilet door of Rogers Cables Incs staff toilets or by
messages called out from the rooftop of Rogers Cables Incs office facilities.
If this procedure for notification had been part of the clause, and Rogers had, for example, called out the changes from
their office facilities in accordance with the clause, would Rogers action then have constituted a valid notification?
Hopefully not, but it would indeed have met the requirements of Justice Nordheimers test (i.e. that the notification was
given as contemplated by the terms of the agreement). Although a ridiculous example, it illustrated the importance of
assessing the reasonableness of the forms of notification stipulated for in the contract. One simply cannot ignore that
step, as Justice Nordheimer chose to do.