Abstract: Boilerplate text in consumer contracts is ubiquitous, yet consumers have only the slightest understanding of the terms to which they agree. This change in how commerce is conducted has caused contract theory to slip into a different paradigm, divorced from actual agreement. Consumers are now overwhelmingly vulnerable, unknowingly agreeing to a host of terms that discourages all but the boldest consumers from pursuing remedies. In essence, the substance of consumer contracts is at odds with Ontario’s Class Proceedings Act. It should therefore come as no surprise that such contracts have impaired recourse to class proceedings and enabled “class action avoidance,” insulating powerful actors from litigation. Consumer protection legislation has been enacted to shield consumers from these terms that disincentivize pursuing claims, but in response, corporate actors have shifted their focus to advancing other boilerplate as a means of disincentivizing dispute adjudication altogether. In the absence of legislative action to fill the new gaps that corporate actors now exploit, consumer recourse to the CPA has become difficult once again. Crucially, though, aid to consumers has come in the recent growth of the unconscionability doctrine, which has weakened the efficacy of boilerplate clauses and restored (at least in part) consumers’ ability to seek relief. Notwithstanding the doctrine’s weakness with respect to promoting commercial and legal certainty, the rise of unconscionability suggests that the common law provides a valuable interim supplement to consumer rights protection — albeit one that should be scrutinized in light of its weakness as a long-term solution.
Nicholas Reynolds (Thu,) studied this question.