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.”
