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This article was published 22/1/2019 (606 days ago), so information in it may no longer be current.

Opinion

Canada’s largest internet service providers (ISPs) maintain their customers don’t need to know precisely what internet services they have purchased, or at what price, until after they’ve signed up — a position that is both dumb and legally indefensible.

Late last month, Canada’s competition watchdog, the Competition Bureau, recommended to the federal telecommunications regulator, the Canadian Radio-television and Telecommunications Commission (CRTC), that ISPs provide mandatory plain-language summaries of their offers to consumers.

Several of the large ISPs — Bell, Cogeco, Quebecor, Rogers, Shaw and Telus — objected to providing pre-sale summaries that would include all fees, data caps or slow-downs, or other significant restrictions. Shaw Communications, for example, in its submission to the CRTC, said that paper or electronic summaries of exactly what the deal on offer is would be "severely restrictive, inefficient and administratively burdensome."

Most of the large ISPs stated in their filings with the CRTC that they would support plain-language summaries, but only after a sale is concluded. This position dodges dealing head-on with a growing and widespread problem — the gap between what ISPs promise and what they deliver.

In its recently released 2017-18 report, the Commission for Complaints for Telecom Television Services cited 8,987 contract and billing disputes about internet services, a year-over-year increase of 56 per cent. Most of those complaints stemmed from claims of point-of-sale misrepresentations. Customers regularly reported a mismatch between what they’d agree to buy, and its cost, and the actual service received or price charged.

The ISPs’ position before the CRTC also flies in the face of basic consumer contract law. The whole point of a contract is to identify what the seller is selling and the buyer is buying, and all associated costs that make up the price. The ISPs’ position attempts to turn contract law on its head ("We’ll tell you what you bought, but only after you’ve bought it.").

Moreover, the ISPs’ standard-form contracts — usually embodied in "terms and conditions of internet services" posted on their websites — also contain clauses that say whatever other representations or promises made via telephone or in their marketing materials don’t form part of the deal, or at very least, say the deal is strictly limited to what’s in the pages of the posted terms and conditions. The transparent object is to disavow and disown any earlier enticements to become a customer.

The ISPs’ insistence before the CRTC that they are entitled to continue to do business as they always have is short-sighted in the extreme. They are opening themselves up to becoming prime targets of class-action lawsuits they’d have a tough time winning.

Canadian contract law has long since evolved to the point where the courts would likely never allow ISPs to rely on their website-posted contracts when the text doesn’t match the promises made to lure customers to sign up. Contract law has developed tools and doctrines that give judges ample authority to override the terms of, or imply terms into, the deal made with their customers where the result would otherwise be unfair.

A judge can rule that an ISP’s come-ons amount to a "collateral contract" or implied "warranty," and compel it to honour any prior promises to consumers. Or a judge can simply declare the deal the ISP insists on is "unconscionable" — meaning it can’t in good conscience stand because people relied on telephone pitches, email overtures or marketing materials inconsistent with either the billing statements or terms-of-service agreements subsequently delivered to them as customers.

Worse for the ISPs, judge-made law of fairly recent vintage has left their current way of doing business even more vulnerable.

Four years ago, the Supreme Court of Canada recognized what’s known as a duty of "good faith" in contractual dealings. In a unanimous decision, our highest court drove home a message that obligations under a contract aren’t strictly limited to the words written on a page or posted on a website. The courts can, and will, step in to rewrite a contract where the seller hasn’t acted fairly and honestly.

The Competition Bureau’s pitch for a compulsory, simplified ISP pre-sale summary of exactly what the deal on offer to consumers is should be adopted as regulatory policy by the CRTC.

It’s a fair and just proposal. And it’s got the weight of law on its side.

Douglas J. Johnston is a Winnipeg lawyer and writer.