The inclusion of an arbitration clause in a Canadian online contract through a hyperlink has been held to be valid in the recent case of Dell Computers Inc. v. Union des Consommateurs. In April 2003, Dell’s Canadian website featured two erroneous prices for the company’s handheld computer products. The site showed that the prices were $89 and $118, instead of $379 and $549. Dell blocked access to the pages the following day, however, the mistakes remained accessible throughout the weekend via a direct hyperlink to the page that had posted the erroneous prices. Dell typically sold three of these products each weekend, but 354 Quebec-based consumers placed 509 orders for these computers during this time.
The Supreme Court of Canada overruled Quebec’s lower courts and referred the claim to arbitration, dismissing the motion for authorization to institute a class action against Dell. The Court held that the arbitration clause was not prohibited by any provisions of the Quebec legislation, and was not contrary to public order, external (i.e. separate from the contract) or abusive in its nature. The Court discussed the situation of a hyperlink in a contract entered into on the Internet. The Court found that a clause contained in a document on the Internet to which a contract on the Internet refers, but for which no hyperlink is provided, is an external clause. The Court held that the consumer’s access to the arbitration clause, which was accessible via a hyperlink, was not impeded by the configuration of the clause as it was accessible by clicking on the “terms and conditions” link provided on each page, and was therefore not external.
Arbitration clauses have been declared void under various provincial consumer protection statutes enacted prior to this case, but similar legislation was only enacted in Quebec while this case was proceeding through the courts. The amendments contained in Bill 48 prohibit obliging a consumer to refer a dispute to arbitration. The Court held that Bill 48 did not apply retroactively and therefore, since the facts triggering the application of the arbitration clause in question had already occurred before the relevant section of the Bill came into force, the provision did not apply to the facts of this case.