The Supreme Court of Canada granted the application of Consumers Council of Canada and the Public Interest Advocacy Centre for leave to intervene in Telus Communications Inc. v. Avraham Wellman in an order released August 16.
The case addresses a provision in Ontario's Arbitration Act when there are class actions involving two different types of potential claimants.
Ontario's Consumer Protection Act states that, in the case of consumers, any user agreements that call for arbitration are invalid in terms of restricting the right to be part of a legal action. For the Ontario Court of Appeal, in its decision last year, the main issue was whether business customers of Telus should be excluded because those contracts included a mandatory arbitration clause. Section 7(5) of the Arbitration Act permits a court to stay certain “matters” within an arbitration agreement.
In the Telus litigation, the proposed class affected is made up of consumers in and outside of business plans.
The Council is being represented for purposes of the intervention by Sotos LLP.
The review by the Canadian Radio-television and Telecommunications Commission of the structure and mandate of the Commissioner for Complaints for Telecommunications Services, which provides dispute resolution for Canadian retail consumers of telecommunications and soon television services, supported many positions taken by the Consumers Council of Canada in recent hearings.
The CRTC decision prompts CCTS to:
Act more boldly to monitor and enforce dispute resolution resulting from telecommunications service providers’ conduct and promote the service CCTS can provide consumers.
Note in its annual report those service providers who don’t follow the rules by making their customers aware dispute resolution can be obtained through CCTS.
Make public its budget in its annual report, which would help the public ascertain how CCTS spends its money doing its job.
Promptly provide to the CRTC the results of a study of public awareness of CCTS that CCTS agreed to conduct.
The CRTC expanded CCTS’s mandate to include addressing complaints related to the provision of subscription television services provided by a television service provider, a step the Council has supported. All licensed TV providers must participate in CCTS by September 2017.
“By giving CCTS responsibility for resolving disputes with both television service providers and telecommunications service providers, CCTS should be able to become more efficient and better known by the public,” said Howard Deane, who represents the Council concerning issues before the CRTC.
“When CCTS gets customer problems to solve, it frequently solves them,” he said. “So, the CRTC very appropriately directed CCTS to enforce upon telecommunications service providers, and now television service providers, their obligation to inform their customers that CCTS exists to help them with their problem — in general and especially when involved in a dispute.”
The Council is one of the consumer groups nationally that nominates two persons to serve among the four ‘independent directors’ on CCTS’s board.
At the moment, the Council is conducting an online one-question survey for Canadian consumers about their awareness and/or use of CCTS’s service. Consumers can answer the question on the Council’s homepage at: http://www.consumerscouncil.com
Manufacturers and retailers of smartphones and mobile Internet devices can and should do more to keep their customers safe, research by the Consumers Council of Canada has found.
"Most consumers don't understand the risks they take and often fail to take simple, inexpensive actions to prevent the loss and exposure of their private information," Council President Aubrey LeBlanc said. "Retailers, in particular, can help consumers protect themselves better."
The Council advises consumers to do the following:
Lock the smartphone (or other mobile device) with a password.
Buy a sturdy case.
Don't connect to unfamiliar public Wi-Fi sites.
"Think before you click" on a link or an e-mail that "doesn't smell right."
Scare yourself. Pretend you've lost your smartphone. What will nosy people find? What would your parents or your kids say if they found it?
Check carefully that the device you buy will let you avoid risks you cannot accept. (e.g., How sturdy does the device need to be? Can you afford all the costs if the device is lost, stolen or broken? Are the security features easily understood?)
Focus groups of consumers who participated in the research said wireless carriers and device retailers are in a key position to help them avoid the risks of using smartphones.
The report advises that device manufacturers need to make "on" and not "off" the default setup for security features. Also, wireless carriers, manufacturers and software platform providers should distribute software updates faster and for more years of device ownership to protect against new, malicious activity.
Regulators should ensure systems get put in place that make it easy to secure and disable stolen and lost devices, so they are less attractive to thieves.
Dennis Hogarth and Howard Deane, who specialize in data governance, knowledge management, information risk management and personal data privacy, authored the report for the Council. Research House, a division of Environics, conducted focus groups for the research.
The Council received funding from Industry Canada’s Contributions Program for Non-profit Consumer and Voluntary Organizations to conduct the research. The views expressed in the report are not necessarily those of Industry Canada or the Government of Canada.
The Consumers Council of Canada welcomes the introduction by Ontario Minister of Consumer Services Margarett Best of Bill 82, the Wireless Services Agreements Act, 2012, an act to strengthen consumer protection with respect to consumer agreements relating to wireless services accessed from a cellular phone, smart phone or any other similar mobile device.
The Council believes Ontario consumers deserve protection around terms of service for contracts of all kinds, based on easy to understand principles.
"Contracts for cellular voice and data services and equipment rate as top-10 sources of consumer complaints in Ontario," said Consumers Council of Canada President Don Mercer. "Many consumers feel their rights are unfairly limited and find it hard to understand their responsibilities under these agreements. Quebec has already exercised its authority for contracts in this area. Other provinces across Canada should take responsibility and prompt action, as well."
The Council similarly supported a private members bill proposed by Ontario MPP David Orizietti and is encouraged that the Ontario government has decided to make this initiative part of its agenda. The private members bill enjoyed all-party support, so the Council is optimistic the government's bill will receive broad support.
"This is an opportunity for MPPs from all parties to show they can put the public first and work together to improve consumer protection," said Mercer. "Reducing marketplace confusion is good for competition and good for business in the long run."
Mercer said the Council favours a harmonized approach nationally, so consumers don't become confused about the rights and responsibilities they enjoy from one province to the next. He said the Council found it encouraging that the Ontario proposals track existing law in Quebec.
"The small differences between the Ontario and Quebec positions we understand to be based on lessons learned in Quebec," said Mercer. "Perhaps Quebec consumers will soon enjoy additional consumer protection improvements now proposed in Ontario."
The Ontario bill is said to propose greater protections for consumers of wireless phone, smart phone and data services. The legislation would require clear disclosure of all optional and mandatory services, including the disclosure of “hidden fees” and improve consumer protection concerning contract cancellation.
A similar bill has been proposed in Manitoba, and a private member's bill has been tabled in New Brunswick. With public dissatisfaction running high and provincial legislatures beginning to act, the Canadian Radio-Television and Telecommunications Commission, which has sat on the sidelines, has consulted the public about whether it should conduct a review of the state of competition among cellular companies to assess the need for federal regulation.
The Consumers Council of Canada and three other major consumer organizations, which together form the Canadian Consumer Initiative (CCI), have called for action from the federal government and the CRTC in light of soaring number of wireless complaints to the Commissioner for Complaints for Telecommunications Services (CCTS).
CCTS has announced that telecommunications service and billing complaints had more than doubled from the previous year (a 114% increase), mostly related to wireless problems. Wireless complaints now constitute 62% of the CCTS workload, doubling from 31% in 2007-8.
CCI is a coalition of four major Canadian consumer organizations.
The members of CCI believe this more than doubling of consumer complaints indicates an urgent need for more action on the part of government and regulators to protect Canadian consumers, and, on the part of the CCTS, to conduct a systemic review of the source of consumer problems, so that the industry can address them.
CCI called on the federal government and the CRTC to:
impose stricter rules on service providers regarding customer service and disclosure of information;
to rescind the 2006 Directive issued by Cabinet to the CRTC to rely on market forces rather than regulation; and
to create an advisory committee to examine the policy framework of telecommunications, along with consumers’ associations.
Background information on this subject, prepared by CCI, can be downloaded by clicking here.