Hungry_As_A

Table of Contents

Peanuts
Binding Arbitration
Material Dividends
Roger's Knows Full Well
Rogers Wolfs Down FIDO
What Ever Happened to the Hunter in the Woods?

My legal dispute against Rogers is in Small Claims Court. Let’s be frank though. Small Claims Court is small potatoes.

There’s a limit on the kinds of damages a Defendant can be sued for in Small Claims Court. It’s set at $10,000. The majority of Small Claims Court damages are, in any event, for the more mundane kinds of sums that humble a $10,000 claim, making it look like wanna-be class.

Take a look at Rogers Communications Inc’s quarterly and annual reports. Nobody’s saying it’s FUN to lose in Small Claims Court, but the nuisance to the corporation is punier than mosquitoes in the Canadian summer, the occasional case of West Nile excluded.

…Much punier of course – say along the order of mosquitoes in February – since Rogers attempted to preclude, across Canada, the ordinary consumer from resolving any legal dispute with Rogers in Small Claims Court.

But let’s admit it. Small Claims Court – glorious plebian venue that it can sometimes be – doesn’t generate the type of trouble that Rogers was trying to exterminate with its binding arbitration clause.

Rogers’ real bogey, it’s terrifying pursuer – the thing that makes Rogers tremble in bed at night with the doors and windows locked and sealed – is the class action law suit.

It was the class action law suit that made Rogers Legal Department hunker down to the drafting table and come up with its Binding Arbitration Clause.

Binding ArbitrationBack to Top

Rogers has a clause on its contract that supposedly binds Rogers’ consumers to arbitration in the event of a legal dispute. That clause stipulates the following:

Arbitration

34. Any claim, dispute or controversy (whether in contract or tort, pursuant to statute or regulation, or otherwise, and whether pre-existing, present or future) arising out of or relating to: (a) this agreement; (b) the services or equipment provided to you by us; (c) oral or written statements, or advertisements or promotions relating to this agreement or to the services or equipment; or (d) the relationships that result from this agreement (collectively the “Claim”) will be determined by arbitration to the exclusion of the courts. You agree to waive any right you may have to commence or participate in any class action against us related to any Claim and, where applicable, you also agree to opt out of any class proceeding against us. Please give notices of any Claims to: Legal Department, 333 Bloor Street East, Toronto, Ontario M4W 1G9. Arbitration will be conducted by one arbitrator pursuant to the laws and rules relating to commercial arbitration in the province in which you reside that are in effect on the date of the notice.

The arbitration clause in Rogers’ contract precludes consumers from going to court period, thereby eliminating the two standard venues in which the ordinary consumer most typically seeks justice: small claims court, and class action.

The arbitration clause commits the consumer to hire an arbitrator to resolve any legal disputes that arise with Rogers. The going rate for commercial arbitrators is approximately $4,000 per day – a cost that needs to be paid upfront and is split in two between plaintiffs and defendants. That figure doesn’t include what a plaintiff would spend on legal counsel.

For the vast majority of consumers (almost certainly all of those whose damages are less that $2,000) this clause - if it were enforceable – would operate as an insurmountable deterrent to seeking a legal remedy; or indeed even to defending oneself against a legal claim made by Rogers.

Arbitration clauses in consumer contracts began to be introduced across Canada in the last several years as class action law suits have taken off as a way for consumers to get redress from large corporations with deep pockets and resources for a prolonged legal battle. The procedure and legal fee arrangements of class action law suits account for the fact that the costs of litigation in Canada can be astronomical, particularly for ordinary consumers.

One goal behind the introduction of class action law suits into Canadian law was to provide consumers with "individually non-viable claims" - that is, claims that might not otherwise be pursued because the amounts at stake are small compared to the cost of litigation - to group their claims together with other plaintiffs. Most class action law suits work on the basis of a contingency fee for the class members' lawyer; that is, lawyers for the class take on all of the risks and costs of the case and if the case does not succeed, then the class members pay nothing. If the case succeeds, the lawyers for the class are paid a percentage (the contingency fee) of the damages.

A second goal of class action law suits is judicial economy. These suits allow for plaintiffs, and the courts, to avoid duplication in fact finding and legal analysis that would be required if each plaintiff had to individually litigate their cases.

The third goal of class action law suits is behaviour modification. In a climate where governments have de-regulated industries, class action law suits operate as a deterrent against powerful wrongdoers behaving cavalierly towards consumer and citizen interests in the certainty that most ordinary consumers do not have the resources to pursue them in law. The ominous potential for corporations of a costly class action law suit, with a substantial damage award to a large group of class members and the attendant negative publicity, reduces the incentive of large corporations to do a crass cost benefit analysis putting profit ahead of consumer and citizen interests.

Class action lawyers on the plaintiff's side operate simultaneously as entrepreneurs (some corporation-side lawyers might say "predators" preying upon the fragile and vulnerable corporation) and also as private attorneys general - keeping the corporation in line with the laws of state. Contingency fees provide them with an economic incentive to pursue powerful corporations and force them to comply with the law.

As class action law suits in Canada have only really been taking off in the last 10 years, major corporations have been seeking ways to reduce their risks. One of the mechanisms that the legal departments of major corporations have been proposing is the introduction of arbitration clauses into consumer contracts. These clauses contractually preclude the consumer from suing for damages in a class action law suit, theoretically eliminating the corporation's vulnerability to the costs of a class action.

Increasingly, courts are finding that these clauses are unconscionable and should not be enforced. And legislatures, such as Ontario's, have passed legislation that renders the clauses unenforceable.

Canadian jurists are increasingly recognizing that arbitration clauses on consumer contracts are prejudicial to the interests of ordinary consumers and unevenly stacked to insulate large corporations from precisely the kinds of law suits that governments sanctioned to stimulate corporations to comply with both law and fundamental equity. Consumer advocacy groups have started to agitate for legislation that would preclude such a cynical corporate use of the alternative dispute mechanism of arbitration. For example, the Public Interest Advocacy Centre (PIAC) - a non-profit organization that provides legal and research services on behalf of consumer interests (in particular, vulnerable consumer interests) - has written a report that investigates the history and corporate use of arbitration clauses and strongly recommends that provinces

introduce legislative changes that will prohibit the use of mandatory arbitration clauses and protect consumers’ right to voluntarily choose a range of dispute settlement mechanisms in their dealings with businesses, whether arbitration, small claims court or class actions.

The report indicates that provincial governments like Ontario, and individual courts across the country, have started to compel corporations to behave like decent corporate citizens by rendering those clauses unenforceable through Consumer Protection legislation, or by refusing to uphold arbitration clauses in court on the grounds of unconsionability. PIAC also acts as an intervener representing consumers in cases where consumer interests at stake.

Apart from inoculating the corporation from the damage that a class action law suit can do to a major corporation (at the expense of the consumer's better interests and litigation rights), there are other corporate interests that are served by inserting arbitration clauses into consumer contracts. These interests very often go against the public interest in having matters proceed to a trial.

Material DividendsBack to Top

In an on-line article, George Takach, a corporate lawyer with McCarthy Tetrault, provides an excellent synopsis of the relevance of Rogers' arbitration clause. Takach begins with coverage of the Kanitz case, that troubled many of us in the legal community and ultimately led to a statutory amendment of the OCPA that overturned Rogers' arbitration clause. He also provides a clear statement about why corporations are so bothered by class action suits and clearly underlines why it is to the advantage of corporations to preclude them contractually as Rogers did. As he says, "In short, Rogers' tactic of inserting an arbitration clause has paid fairly material dividends."

Roger's Knows Full WellBack to Top

In point of fact, the arbitration clause on Rogers Wireless Service Agreement has been ineffective since July 30, 2005 when the Ontario Consumer Protection Act ruled such clauses unenforceable. And Rogers knows full well that it’s clause is not worth the paper it’s written on.

Rogers acknowledged that the arbitration clause is unenforceable in Ontario. In answer to my questions about why the clause still remains on a contract distributed daily in Ontario, Rogers has responded that the contract operates across the country and this residual validity warrants retaining the clause even in those provinces where it is unenforceable.

Rogers is not the only party who knows full well that the clause is unenforceable in Ontario. Compliance and Consumer Services of the Ministry of Government Services has replied (to my many letters of complaint about Rogers arbitration clause) that they too are troubled by the "mere existence" of that clause on Rogers' Wireless Service Agreement. In the correspondence I received from the Ministry, a Manager from the Consumer Protection Branch noted in October that:

With respect to your concern (and ours) around the mere existence of item # 34 ("Arbitration" clause)in Rogers' standard/general Service Agreement, be advised, clarification is presently being sought by this office in this matter. It is the case that Rogers are conversant with the relevant provisions of the Consumer Protection Act, 2002 and are aware that such a clause is unenforceable in the Province of Ontario.

In January, he gave me the following update:

You have asked for an update on what the Ministry has done about the existence of the Rogers' so-called arbitration clause. Being cognizant of the contents (and spirit) of Ss. 120(1), Consumer Protection Act, 2002 (CPA), what I can say to you is that Rogers is aware of our concerns and there has been an exchange of views on the matter.

As I have indicated to you previously, our administration of the CPA is essentially based on the notion of progressive compliance especially given its "newness". In the first instance, much emphasis is placed on the principle of education of/communication with marketplace players as we seek to promote and maintain conformity ( notion of voluntary compliance) not only with the CPA and but also the other consumer protection laws we administer.

Hope this clarifies matters.

Manager, Compliance and Consumer Services
Consumer Protection Branch
Ministry of Government Services
250 Yonge St, 32nd Floor
M5B 2N5

When I found out that, following Rogers' purchase of Fido, Rogers was foisting the arbitration clause onto Ontario FIDO consumers in MARCH of 2006, I sent another fairly steamed letter to the Manager of Compliance and Consumer Services on February 21, 2006. In that letter I asked whether the Branch ought not to be renamed the CORPORATION Protection Bureau in light of the fact that the Government was allowing Rogers, through FIDO, to perpetuate a completely FRESH arbitration clause on Ontario consumers, in violation of the Consumer Protection Act, a full eight months after the legislation had rendered them unenforceable. The Manager responded in the following manner to my complaint"

Might I assure you that the Ministry of Government Services and the Consumer Protection Branch are indeed fully committed to consumer protection and a marketplace highlighted by ethical dealings.

We will review the latest issues you have raised against the provisions of the Consumer Protection Act, 2002 and those actions as are appropriate in the circumstances will be pursued.

Thank you once more.

Despite the Ministry's "review" of this issue, the arbitration clause remains not only on Rogers Wireless Service Agreement (as of Septmber 11, 2006), but now also claims to bind Ontario's FIDO consumers.

Personally I find it puzzling that it is taking so long for Rogers to "get up to speed". The Ontario Consumer Protection Act was amended in 2002 in direct response to the Kanitz case which had upheld the clauses as valid. Rogers was the defendant in that case. The Ontario Consumer Protection Act, 2002 came into force on July 30, 2005.

The Ontario government responded immediately to the Kanitz judgment by passing legislation that rendered the clause unenforceable. Rogers has known for four years now that the clause is offensive and is no longer enforceable.

How long does it take to remove an unconscionable and unenforceable clause from a contract? How long does it take for the legal department of a major Canadian corporation to progressively educate itself about Consumer Protection legislation so that unenforceable clauses are not drafted into new consumer contracts?

Meanwhile, the inference is strong that Rogers continues to reap "fairly material dividends" from the mere "appearance" of the clause's validity.

Rogers Wolfs Down FidoBack to Top

They Shoot Wild Horses, Don’t They? How Rogers Wireless corralled FIDO Subscribers

Like a border collie, stealthfully shepherding a flock of wild animals into a gated pen, FIDO, the canine-branded cell phone service provider, has been quietly following directions from its new master, Rogers Wireless, to guide presently-unwitting subscribers into an astonishingly-restrictive corral of a contract. Legal experts and discerning FIDO clients alike have expressed alarm over the legality and ethics of the techniques being employed. One thing appears certain, unless government agencies with the power to do so intervene swiftly, those subscribers that don’t bolt and leave FIDO before the contractual gate silently closes, on March 2, 2006, will soon be domesticated to behave and produce revenue the Rogers way.

“It was just a matter of time before Rogers had to shut down a lot of the things that made FIDO attractive to consumers nationwide” said Kevin, one of the given-name-only FIDO telephone customer service representatives contacted last week to explain the changeover. Marketing innovations, like City FIDO’s unlimited local-calling accounts, or billing-by-the-second - versus the by-the-minute industry standard - were, he said “cannibalizing accounts from Rogers.” A French-styled feeling of freedom from commitment to contractual fidelity was another one of the things that made the Quebec-based Cirque du Soleil of cell phone operators so very attractive to Canadian consumers. As Mark Akrigg, a present FIDO client described, “I liked that I didn’t have to read and sign a lengthy contract.”

In fact that looser, informal style of relationship was something that FIDO has long presented to be one of its brand signatures. As one of the company’s now-archived web pages proudly promised until just recently: “Fido likes to keep things simple: There’s no contract or long-term obligation on your part. Fido operates on mutual trust.” And that is the refrain anxious FIDO customers continue to be given, when calling in an attempt to understand the implications of new shifts at the company to a Rogers-style of consumer relations. They are told by FIDO representatives that “there is no contract” for them to compare with the unfamiliar, dense insert in their invoices this month. “We were the company that didn’t have a contract,” said one FIDO service representative, bemoaning the paradigm shift with Rogers' takeover.

All that changed in mid-February, when, along with his regular monthly billing sheets, Mr. Akrigg received a relatively small and inconspicuous document, simply titled “Important Notice to FIDO Customers”. Upon closer examination, Mr. Akrigg, a studious man with a PhD in classical Greek and Latin languages, became dumbfounded when he discovered that the notice was, in fact, “a highly-folded accordion of paper, covered on both sides with over five thousand words of legalese”. The notice’s startling primary purpose became evident in the last line of the fourth paragraph: “If you do not contact with us by March 2, 2006, your Services will be governed by the terms and conditions of the updated Service Agreement.” What, he thought, was there to be updated?

If the relationship was originally portrayed as a paragon of consumer freedom, the “Important Notice to FIDO Customers” made clear that was soon to be a thing of the past.

Despite his abundant qualifications as an expert in deciphering words, Mr. Akrigg still could not grasp the significance of a clause that appears to be depriving him of his right to the courts – including the option of suing FIDO/Rogers in a class action or any other suit – in the event of a dispute with the company. Baffled, he feels anxious about giving away his litigation rights, by the default action of paying his next FIDO invoice. The new FIDO agreement has an arbitration clause that precludes consumers from pursuing claims in the courts. “Obviously we agree to nothing of the sort,” says Mr. Akrigg. “But FIDO says that if we do not cancel our service with them before March 2nd, we have accepted their new Service Agreement and have therefore voluntarily renounced our access to the courts.”

And yet, he also feels pressured to accept a contract that he has difficulty living with. “We consider this kind of behavior coercive,” he notes, “It is simply not possible for us to cancel the FIDO service, find another carrier, get the new service going, and notify everyone of our new numbers in the space of two weeks. So not canceling our service before March 2nd most certainly does not mean that we accept the terms of the new agreement.”

It appears the new “Claims” clause, buried at the end of FIDO’s so-called “Updated Service Agreement” is indeed something that Mr. Akrigg and other FIDO consumers need to worry about. According to Iain Ramsay, a consumer law professor at Osgoode Hall Law School, the Ontario Consumer Protection Act has rendered arbitration clauses in consumer contracts that exclude the right of consumers to sue a corporation in a class action unenforceable. The clause has been found to be unconscionable in provincial courts. Indeed the very presence of the clause in a consumer contract in Ontario appears to render both Rogers and FIDO liable to a charge of unfair trade practices. Under the Consumer Protection Act, a corporate practice constitutes an unconscionable representation if "the consumer is not reasonably able to protect his or her interests because of...[an] inability to understand the language of an agreement."

Professor Ramsay is particularly vexed by the disadvantages that consumers increasingly face trying to decipher terms on standard form contracts. “I think that lawyers who write these contracts for businesses should know that consumers will not understand the complexities and subtleties of legalese,” he remarks. “It’s almost unethical to write clauses with these kinds of weasel words in them. It’s like when you appear in court and there’s only one party there; an advocate has a duty to put the other side of the story to the judge. To extent that lawyers are writing these terms for businesses they should attempt to write them in a more consumer-friendly way, that’s fairer to the consumer, taking into account the interest of the consumer as well as the business, and the fact that the consumer is not represented in writing the contract.”

The government agencies empowered to safeguard consumers from abusive corporate practices, and supposedly committed to a marketplace highlighted by ethical dealings, appear ready to do little to protect FIDO consumers from undue pressure in the Rogers takeover, beyond talking with industry “stakeholders” and talking, and talking and talking. Asked this week for the provincial government’s view on the emerging controversy over FIDO’s Updated Service Agreement, Sam Colalillo, spokesperson for Marketplace Standards and Services of the Ontario Consumer Protection Branch, replied that agreements such as Rogers’ (and now Fido’s) Wireless Service Agreement “do not comply with the Consumer Protection Act.” he agreements “nclude an arbitration clause that, in our view, is contrary to the act.” When asked what the government is doing to bring Rogers into compliance, since the matter was raised with them by an aggrieved Rogers Wireless customer in November of 2005, Mr. Colalillo said “we have shared our views with the providers directly and at this point we trust that timely steps will be taken to rectify the non-compliant contracts.” Presumably, the Ontario Government will get around to using the powers available to them to force FIDO’s compliance with the law, sometime well after their customers have been unwittingly corralled by the new service agreement and broken to Rogers saddle.

In the meantime, FIDO customers, like Mr. Akrigg, alert enough to detect the stealthy shift from an environment of “mutual trust” to one of elaborate and obscure contractual terms, feel anxious unprotected, and unsure about the advisability of donning the contractual saddle or bolting for the hills.

Reproduction, in whole or part, without permission is prohibited.

Whatever Happened to the Hunter in the Woods?Back to Top

Correspondence between Susan Drummond and the

Manager of Compliance and Consumer Services,

Consumer Protection Branch,

Ministry of Government Services

February 21, 2006

Dear Mr. [Manager],

Now I am very curious about exactly how the Consumer Protection Branch is actually protecting ordinary consumers against abuses by large corporations:

As you know, Rogers now owns FIDO. FIDO consumers this month (in particular FIDO consumers across Ontario) just received a lengthy insert in their invoices. The insert is the new contract to which FIDO consumers supposedly have to commit (again, by doing nothing more overt than by passively paying their next invoice). While the FIDO contract appears to be have been minimal in the extreme, the new contract is effectively a complete reproduction of Rogers' wireless service agreement. INCLUDING THE BINDING ARBITRATION CLAUSE!!

Here is the new FIDO wireless service agreement that FIDO consumers have to accept by March 2:

http://www.fido.ca/portal/en/home/legal.shtml#agreement

Here is the old FIDO "contract":

http://web.archive.org/web/19970712075322/www.fido.ca/engl/ado/enga.htm

How is it that the government is letting Rogers get away with this? There is no disclaimer that the binding arbtration clause is unenforceable in Ontario. Further, FIDO consumers are being pressured into "accepting" the new contractual clauses in a most oppressive manner:

FIDO consumers are being told in their February invoices that they have to accept the new contract or cancel services. They have until March 2 to commit. There are substantial losses to the FIDO consumer in just switching their service provider within the remaining seven days that Rogers/FIDO has given them to get up to speed on the new contract or bail out; including the loss of whatever service provision arrangement they had with FIDO.

Further, while it might have been argued that there was original consideration for Rogers consumers who signed the original Rogers contract for the provision that Rogers could unilaterally change the contract on-line, post hoc (they got wireless services for such an "exchange"), in the case of FIDO, there is NO consideration being offered for entering into this bargain (that Rogers can change the contract whenever they want), and NO consideration offered for giving up their right to sue FIDO/Rogers in a class action or other court proceeding. I don't believe the new FIDO contract is even valid.

Even though the binding arbitration clause is unenforceable, and even though this new "contract" is highly suspect with respect to its validity, as you know, Rogers will succeed in bamboozling the ordinary FIDO consumer into thinking that they no longer have any litigation rights. When Rogers/FIDO tell the vast majority of ordinary FIDO consumers who want to protect themselves in court or sue for damages that they have signed away their litigation rights and this "contract" is hauled out to affirm that claim, you must surely be aware that there are extraordinarily few among the ordinary consumers who will be capable of arguing otherwise.

And I have to say it appears to me that the government, which is supposed to be regulating the corporation under the Consumer Protection Branch, is colluding with a very oppressive corporate agenda.

At this point, if I had to characterize what Compliance and Consumer Services has done on this issue, I would have to suggest that the service be renamed the Corporation Protection Branch.

Where is the Ontario government?!?

Susan G. Drummond

February 23, 2006 - letter from Mr. [Manager] to Susan Drummond

Thank you very much for this information especially that pertaining to the FIDO matter.

Might I assure you that the Ministry of Government Services and the Consumer Protection Branch are indeed fully committed to consumer protection and a marketplace highlighted by ethical dealings.

We will review the latest issues you have raised against the provisions of the Consumer Protection Act, 2002 and those actions as are appropriate in the circumstances will be pursued.

Thank you once more.

Respectfully,

Mr. [Manager]

February 23, 2006 - letter from Susan Drummond to Mr. [Manager]

Regarding: Regarding Rogers Wireless/FIDO's disregard for compliance with ss 7 & 8 of the Ontario Consumer Protection Act .

I believe that it is long overdue that Market Place Standards and Services of the Ontario government intervene between Ontario consumers and Rogers Wireless (and now FIDO) to protect the consumer from the unfair trade practices of one of Canada's largest corporations. Below I suggest the actions that I believe are appropriate for the Ministry of Government Services and the Director of Market Place Standards and Services to take in the circumstances and under the Consumer Protection Act, and perhaps you can respond to me about why they are not being pursued by the government:

First some context:

The 2002 Kanitz case, which upheld Rogers arbitration clause (which forced consumers to waive their rights to class action as well as other litigation rights) was widely regarded within the legal community to be wrongly decided; and the arbitration clause regarded to be an unconsionable, deeply cynical, if not indeed unethical, contractual swindle of the Ontario consumer on the part of Rogers. The Ontario legislature clearly agreed with this analysis. In remarkably swift order, an amendment was passed to the OCPA which rendered those clauses unenforceable in Ontario. It cannot be seriously doubted that Rogers has known full well, since 2002, that those arbitration clauses are unconsionable and that the explicit intention of the Ontario legislature was that they must not be unenforced. It is now 2006!

I now hear that FIDO consumers are being pressured in a most oppressive way to cancel their existing FIDO contracts if they do not want to accept, holus bolus, a contract that is not only a virtual reproduction of the Rogers Wireless Service Agreement, but which also includes this unconscionable and unenforceable clause. The conversations on internet blogs on the new FIDO contract make it abundantly clear that consumers are confused, uncertain, wary, feel pressured, and are unaware of their rights.

The entire context of the FIDO Wireless Service Agreement, conjoined with the cynical inclusion of the arbitration clause, suggests that Rogers/FIDO's behavior amounts at a minimum to the unfair trade practice of false, misleading or deceptive representation under s. 14 of the CPA. And indeed, it is NO stretch of the imagination to see that it also constitutes the unfair trade practice of unconsionable representation, at s. 15 of the Act. As per s.15, "the consumer is not reasonably able to protect his or her interests because of...[an] inability to understand the language of an agreement." I can assure you that virtually NO ordinary Ontario consumer would be able to read the new FIDO contract in the extraordinarily limited time that they have available and understand what the arbitration clause implies.

For Rogers to attempt to foist a fully unmodified arbitration clause upon unwitting FIDO consumers in Ontario indicates to me that Rogers has not felt the LEAST whit of pressure from the Ontario government to comply with the Ontario Consumer Protection Act.

WHAT THE GOVERNMENT IS EMPOWERED TO DO

Under the legislation, at section 112(1) the Director of Market Place Standards and Services can issue an order requiring immediate compliance with the OCPA.

Under s. 109(1) of the OCPA, if the Director believes that a person is making false, misleading, or deceptive representations in respect of any consumer transaction in an advertisement, circular, pamphlet or material published by any means, the Director may,

(a) order the person to cease making the representation; and

(b) order the person to retract the representation or publish a correction of equal prominence to the original publication.

And under s. 102(1) of the CPA, the Minister may disseminate information for the purpose of educating and advising consumers.

I believe these are the appropriate remedies in these circumstances. If the Minister and the Director of Marketplace Standards and Services are not in agreement, then I would like to know why not.

Yours sincerely,

Susan Drummond

February 23, 2006 - letter from Mr. [Manager] to Susan Drummond

Incidentally, we have received no consumer complaints pertaining to the FIDO matter. If you are in possession of precisely what FIDO has delivered to their customers, would you be so kind as to share same with us by fax:416-326-8665.

February 23, 2006- Letter from Susan Drummond to Mr. [Manager]

I have received many emails from Rogers and FIDO consumers because of the story about my debacle with Rogers Wireless that appeared on the front page of the Globe and Mail on December 17 and 19, and on the inside pages on December 20 and February 11.

I have attached one of the many emails that I received regarding Rogers and FIDO so you have some sense of the anxiety and uncertainty that FIDO consumers face.

It's not great, I suppose, that my prominence as a consumer advocate is greater than that of the Consumer Protection branch when ordinary consumers flounder about trying to make sense of things.

One prominent blog that deals with FIDO's new wireless service agreement is called Howard Forum. It's immediately apparent from the blog that people don't know what to do or who to turn to. There's a lawyer giving people somewhat spurious advice (I believe) about what will happen to them if they just cancel with FIDO. He tells them emphatically they will still have to pay the early termination fee (ETF) of $200 if they don't accept the contractual changes in whole. Other consumers are finding that they can cancel with FIDO and not pay the ETF, while others are told by FIDO consumer service reps that they must accept the new contract in its enitrety or pay FIDO $200. There are also suggestions that people turn to the Better Business Bureau. Nobody seems to be aware that they can turn to Consumer Protection to get assistance.

I don't have a fax machine. But I am almost certain that the lengthy new FIDO Wireless Service Agreement (which goes on for several pages of an accordian pamphlet) reproduces what can be found at

http://www.fido.ca/portal/en/home/legal.shtml#agreement

There is more to the insert than that. I know of several FIDO consumers who are spending hours on the phone with FIDO's consumer reps trying to make sense of what they confronting on March 2. I'll try and get one of them to give me a copy of the insert and I'll find a way to pass it on to you.

Attached to letter to Mr. [Manager]: Copy of letter to Susan Drummond from FIDO Consumer Mark Akrigg, February 20, 2006 (reproduced with permission):

Dear Professor Drummond,

Like many others, I read with great interest (and sympathy) the accounts in the Globe and Mail of your dealings with Rogers in the aftermath of the $12,000 bill you were presented with.

At the end of the Globe's Dec 19 article, there was a mention that you "will continue to pursue underlying issues, including a contentious clause in the Rogers contract that forbids consumers from taking the company to court or joining a class-action lawsuit against it."

I and my partner are both customers of FIDO, which was taken over by Rogers just over a year ago, and we find that we are newly confronted by this clause. On February 15th, we both received with our monthly FIDO bills a very lengthy insert: it is the new Service Agreement, which was represented as part of FIDO's integration into Rogers. Buried on the very last page of the agreement is Section 34, which reads as follows:

"34. Any claim, dispute or controversy (whether in contract or tort, pursuant to statute or regulation, or otherwise, and whether pre-existing, present or future) arising out of or relating to: (a) this Agreement; (b) the Services or equipment provided to you by us; (c) oral or written statements, or advertisements or promotions relating to this Agreement, or to the Services or equipment; or (d) the relationships that result from this Agreement (collectively the "Claim") will be determined by arbitration to the exclusion of the courts, to the extent permitted by law. You agree to waive any right you may have to commence or participate in any class action against us related to any Claim and, where applicable, you also agree to opt out of any class proceeding against us, the extent permitted by law...[They then give the Montreal address to which any claims should be sent]...Arbitration will be conducted by one arbitrator pursuant to the laws and rules relating to commercial arbitration in the province in which you reside that are in effect on the date of the notice."

Obviously we agree to nothing of the sort. But Rogers says that if we do not cancel our service with them before March 2, we have accepted their new Service Agreement and have therefore voluntarily renounced our access to the courts.

We consider this kind of behaviour coercive. It is simply not possible for us to cancel the FIDO service, find another carrier, get the new service going, and notify everyone of our new numbers in the space of two weeks. So not cancelling our service before March 2 most certainly does not mean that we accept the terms of the new agreement.

But the real question is whether Rogers, offering service under a licence granted by the Government of Canada, has any right to deny customers access to the Canadian court system.

I would very much appreciate it if you could let me know what the status is of this issue.

Again, congratulations on the public service that you have performed. I agree with you that the real objective of all this is to make Rogers behave like decent corporate citizens. They have a long way to go.

Sincerely yours,

(Dr) Mark Akrigg

P.S. I should say that during our years of service with FIDO, starting in 1999, we felt that we were always treated fairly. We never had the feeling that they were trying to exploit or deceive their customers. Dealing with Rogers has been a very different and consistently nasty experience.