Class Proceedings and the Future of Boilerplate in Consumer Contracts: Unconscionability as a Common Law Solution to Class Action Avoidance

• Author: Nicholas Reynolds
• Pages: 227-253



CLASS PROCEEDINGS AND

THE FUTUR E OF BOILERPLATE

IN CONSUMER CONTR ACTS:

UNCONSCIONABILITY AS A

COMMON LAW SOLUTION TO

CLASS ACTION AVOIDANCE

Nicholas Reynolds

Abstract: Boilerplate text in con sumer contracts is ubiquitous,

yet consumers have only the slightest understanding of the

terms to which they ag ree. This change in how commerce is

conducted has caused contract t heory to slip into a different

paradigm, divorced from actual agreement. Consumers are

now overwhelmi ngly vulnerable, unknowingly agreeing to a

host of terms that discourages all but the boldest consumers

from pursuing remedie s. In essence, the substance of consum-

er contracts is at odds w ith Ontario’s Class Proceedings Act.

It should therefore come as no surprise that such con-

tracts have impa ired recourse to class proceeding s and enabled

“class action avoidance,” insulating power ful actors from liti-

gation. Consumer protection legislation has been enacted to

shield consumers from these terms that disincentivize pur-

suing claims, but in response, corporate actors have shifted

their focus to advancing other boilerplate as a means of dis-

incentivizi ng dispute adjudication altogether. In the absence

of legislative action to f‌ill the new gaps that corporate actors

now exploit, consumer recourse to the C PA has become dif-

f‌icult once again.

Crucially, though, aid to consumers has come in the

recent growth of the unconscionability doctrine, which has

CCAR 13-2.indb 227 10/30/2018 11:41:52 AM



The Cana dian Cl ass Action Rev iew

weakened the eff‌icacy of boilerplate clauses and re stored (at

least in part) consumer s’ ability to seek relief. Notwithst anding

the doctrine’s weakness with respect to promoting commer-

cial and legal certai nty, the rise of unconscionabil ity suggests

that the common law provides a valuable interim supplement

to consumer rights protection — albeit one th at should be

scrutini zed in light of its weakness as a long-term solution.

CCAR 13-2.indb 228 10/30/2018 11:41:52 AM