Terms could be changed by web notice, says Canadian court

Rogers Cable Inc. operates a high-speed internet access service. Five customers, upset over allegedly paying for faulty services, sued in what they hoped would become a class action lawsuit on behalf of the company’s 350,000 customers – which would make the total claim worth around CA$75 million (£33 million).

Rogers Cable sought to dismiss the lawsuit on the basis that a clause in its terms and conditions stated that disputes should go to arbitration, not court. The arbitration provision also prohibited class actions. However, this was a new clause, which did not exist when the five customers bringing the lawsuit first signed-up with the ISP.

The original terms did provide that the company could amend its agreement by posting a notice on its web site or sending a notice by e-mail or post. The terms also advised customers that by continuing to use the service following such notice, they were deemed to be accepting the amendment.

The company introduced its arbitration clause to the terms and conditions and notified this by posting a notice on the main page of its customer support web site – though not on its main homepage. It also sent notices to customers from time to time, reminding them to visit the customer support site, although these did not indicate that any changes had been made to the agreement.

The court ruled that Rogers Cable had given sufficient notice to its customers and that the parties bringing the lawsuit had accepted the change by continuing to use the service.

The court noted that the new agreement could be accessed after viewing “only” five pages on the web site and also that the arbitration provision was “easily located” by scrolling through the agreement. It also appeared to be significant to the court that it was in bold type with a heading and not “tucked away in some obscure place.”