Who has the last word in respect of rights? The documentary The trial by journalist Pierre Craig, presented on Télé-Québec a few days ago, raises essential questions about access to justice for ordinary citizens. As this documentary clearly demonstrates, justice seems to have been perverted in favor of unscrupulous companies, all with the complicity of large law firms.
However, who says absence of sanction says absence of rights. For all individuals, the inequalities of means have repercussions on the real existence of the law with complete impunity.
I like presenting contracts in class and making the students see how many clearly illegal clauses they contain. The question asked is always the same: how is this possible? The answer is simple: the absence of sanctions both for the company and for professionals who include such illegal clauses in these contracts, which are most often imposed on consumers.
Let us take an example that any Quebec consumer will certainly be confronted with. The Consumer Protection Act provides a legal guarantee of quality, durability and normal use. This obligation applies in addition to the warranty offered by the manufacturer (often one year). Both the merchant who sold you the good and the manufacturer of the good are subject to it.
These people cannot avoid the application of this guarantee and before offering you an additional guarantee, they must give you a written notice indicating that your property is covered by the legal guarantee.
They also have the obligation to read the content to you in order to inform you of the legal uselessness of the additional guarantee.
The last time you bought a property and at the same time someone tried to sell you an additional guarantee, were you given and read such a notice? I reassure you, me neither. Although a lawyer and professor of consumer law, I have to fight to have my rights respected.
An eye-opening experience
Let us take a recent experience which clearly demonstrates this reality. I am buying a new iPhone phone. They try to sell me the AppleCare warranty, without giving me the notice. To use my phone, I have to accept a contract containing a multitude of (illegal) clauses limiting the legal warranty. I know their illegality, but you, did you know? However, a year after the purchase, I noticed a serious problem of battery wear. I invoke the legal guarantee. I am told that the warranty has expired. After strong arguments, I am allowed to go to the store to have the battery changed.
However, once at the store, I am told repeatedly that the problem is not covered. After long minutes of arguing, I am told that we are going to change it, but that I must therefore give up my phone. I will only get it back after two weeks, with a fuzzy answer on what repairs have been done. I was told that I would have access to this information on the Apple site.
However, I quickly noticed that the state of the battery is the same. Despite the steps taken, the battery has not been changed and my phone does not have a protective screen. We even worsened a network cut problem, to the point that my phone became the laughing stock of those around me …
To confirm the absence of repairs – contrary to what had been stated by the representative – I must make an access to information request. Apple decides to challenge it with two lawyers from San Francisco, then two lawyers from a large Montreal firm.
These new lawyers demand that I sign a document entirely in English in which I waive all present and future claims against Apple (but that I am presented as mere confirmation of ownership of my phone). A trap that I refuse, but what would have happened to a unilingual French-speaking non-lawyer? Beyond the unreasonable aspect of this document, it is the Charter of the French language that is being flouted. Did these lawyers really ignore it?
After several hours of debate, I finally get confirmation that my phone has not been repaired … Clear demonstration that, even for a simple battery replacement, rich companies prefer to pay thousands of dollars in legal fees rather than create precedents in favor of individuals.
The Consumer Protection Act, the Charter of the French language and access to personal data of the Privacy Act in private companies. Three laws protecting the rights of Quebecers flouted without embarrassment with powerful financial means.
The solutions ? I am thinking in particular of the establishment of a community system of access to accessible and rapid justice and of the possibility of declaring clauses illegal well before the trial. I am also thinking of a form of procedural fairness where the judge could himself raise the rights of protective laws. Above all, I dream of the end of impunity for all the actors involved with sanctions worthy of the name, including criminal and ethical ones.
Thank you, Pierre Craig, for initiating an important social reflection.
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