In Zanin v. Ooma, Inc., 2025 FC 51, the Federal Court stayed a consumer class action that was subject to standard form arbitration, forum selection, and class action waiver clauses. In doing so, the Court clarified the requirements for inequality of bargaining power, improvident bargain, and public policy concerns which may oust these clauses in a standard form consumer contract. This guidance will be useful for defendants seeking to rely on similar terms for certainty of forum when dealing with Federal consumer claims.
Background
Ooma, Inc. and Ooma Canada Inc. (together "Ooma") offer a service allowing audio communications through an internet connection rather than a traditional phone line.
The plaintiff commenced this proposed class action on behalf of all subscribers to Ooma's services between May 8, 2015 and the date of certification. His claims related to Ooma's advertisements which allegedly represented its services as "FREE" or costing "$0" when additional fees and taxes were charged such that the total monthly cost was around $5. The plaintiff alleged this contravened certain provisions of the Trademarks Act, R.S.C. 1985, c. T-13 and Competition Act, R.S.C. 1985, c. C-34.
The Federal Court heard Mr. Zanin's motion to certify this proposed class action together with Ooma's motion to stay the proceeding in favour arbitration.
On the certification motion, the Court found there was no reasonable cause of action for any of Mr. Zanin's claims. In short, as the Court observed "the Service is never advertised, promoted, presented, labelled or invoiced by Ooma as 'Free or $0', without more" namely, "a specific mention of or reference to 'applicable taxes and fees'" which are then detailed in each invoice (paras. 456, 478). It was "ironic" that Mr. Zanin raised various statutory causes of action relating to misleading representations against Ooma when...
