The Court of Québec (Small Claims Division),
in Faucher v. Costco Wholesale Canada Ltd. (2015
QCCQ 3366), has ruled that an online retailer who erroneously
advertised computers on its e-commerce site for $2.00 was not
obliged to honour its mistake. The plaintiff instituted legal
proceedings against the retailer after the latter cancelled the
plaintiff’s purchase order of 10 computers at $2.00
each– claiming the retail value of all 10 computers
($9,379.99) in damages.
While retailers are liable for the accuracy of the prices they
advertise, there have been instances in which
have allowed retailers to successfully allege a pricing error. In
this case, the Court based its ruling in part on the
retailer’s website Terms and Conditions of Use, which Terms
were found at the bottom of each webpage, were one click away and
therefore enforceable against the Plaintiff, and contained a
provision whereby the retailer reserved “the right to cancel,
to terminate or not to process orders (including accepted orders)
where the price or other material information on the Sites is
The Court held that the Plaintiff could not force the
enforcement of the contract under the Civil Code of
to the lack of an “offer” on the part of the retailer;
in fact, no offer to contract existed given the retailer’s
express desire not to be bound by pricing errors. The Court also
noted that the blatant and unrealistic nature of the pricing error
further vitiated the retailer’s consent to be bound by said
As for the existence of a contract under the
Protection Act (the “C.P.A.), the Court noted that
unlike the Civil Code of
definition of an “offer”, a retailer is deemed to have
made an offer if the retailer’s proposal contains all of the
essential elements of the intended contract, regardless of whether
there is an indication of the retailer’s willingness to be
bound in the event the proposal is accepted, and even if there is
an indication to the contrary! While this rule might infer that the
retailer would be bound by its advertised price, regardless of a
statement to the contrary in its Terms and Conditions of Use, the
Court noted that internet contracts possess their own unique
attributes. Whether an offer has been made requires an analysis of
which party initiated the offer.
The doctrine on internet sales has established the following
distinction: If a consumer seeks out a product on website of his
own accord and subsequently decides to make a purchase, the website
is simply a proposal and it is the consumer, in pulling the
information towards him/herself, who makes the offer (“pull
media”). Inversely, when a merchant transmits, or
“pushes” information directly to the consumer
(“push media”), it is the merchant, in transmitting the
information, who makes the offer. In this case, since the Plaintiff
had visited the retailer’s site without having been solicited
by the retailer, the Court held that the offer was initiated by the
Plaintiff, and subsequently refused by the retailer.
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