Case information

Contracts — Arbitration agreement — Contract of adhesion — Purchase of consumer goods by consumers — Whether the United Nations’ Convention on the Recognition and Enforcement of Foreign Arbitral Awards, Can. T.S. 1986 No. 43, applies to claims brought by consumers with respect to purchase of consumer goods — Whether arbitration clause enforceable when its practical or legal effect prevents person from obtaining damages under s. 36(1) of the Competition Act — Whether arbitration clause in contract of adhesion preventing the public enforcement of Competition Act null and void for public policy reasons — Competition Act, R.S.C. 1985, c. C-34, s. 36(1).

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Ms. Difederico has accounts with Amazon.ca and Amazon.com, and placed numerous orders through each of the accounts before and after filing the proposed class action. She alleged that the competitive pricing provisions in effect between 2010 and March 2019 and a related subsequent fair pricing policy constituted price fixing contrary to s. 45 of the Competition Act, R.S.C. 1985, c. C-34. Amazon’s online retail stores require customers to agree to certain “Conditions of Use” when they create an account and each time they place an order under that account. From October 24, 2014, until March 30, 2022, the Conditions of Use imposed by Amazon.ca provided, in relevant part, that, other than small claims and intellectual property claims, disputes or claims relating to the consumer’s use of any Amazon.ca service, or any products or services sold or distributed by Amazon.ca or through Amazon.ca Services, will be resolved by binding arbitration. The Conditions of Use also choose U.S. law and set out an agreement to proceed by individual actions, not by class action, consolidated action or representative action. In May 2021, Amazon.com stopped mandating arbitration, but Amazon.ca did not echo that change. Ms. Difederico filed a proposed class action against Amazon with herself as the proposed class representative for an e-commerce class of purchasers and another proposed class representative for two other classes of purchasers which are at issue now. Relying on the Conditions of Use, Amazon moved to stay the claim in favour of individual arbitration.

The action was stayed, except for the relief requested under the Business Practices and Consumer Protection Act, S.B.C. 2004, c. 2, s. 172. The appeal was dismissed.