Roger's Knows Full Well


Rogers has 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 June 1, 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.