Daina Elias, Windsor Law Student, JD 2026, & LTEC Lab Research Assistant
February 20, 2025
On February 7th, 2025, LTEC Lab was pleased to welcome Windsor Law alumni Ryan Fritsch, Legal Counsel from the Law Commission of Ontario (“LCO”) to present the major findings of the LCO’s final report: Improving Consumer Protection in the Digital Marketplace, as well as the implications of recent legislative reforms and developments that have emerged since the report’s release.
Receiving its support from the Law Society of Ontario, the Law Foundation of Ontario, and Ontario Law Schools, the LCO plays a crucial role in evaluating legal reforms that enhance accessibility, relevance, and effectiveness in the justice system. As Fritsch aptly stated, “We look over areas where the law is not in step; [or, in other words] not matching with people’s everyday experiences in whatever sector the law is meant to serve.”
To identify misalignments, the LCO conducts extensive research, undertakes public consultations, and issues reports and recommendations collected by Canadian government. LCO ensures to incorporate Ontario law students in their work, hiring students annually to be of assistance during the summer. At LCO, team members can engage with legal issues more extensively than the typical legislative process, allowing for more comprehensive recommendations on the law.
Bringing heaps of energy on a Friday morning in Windsor, LTEC Lab congregated those with a keen interest in law and technology and social justice. Capturing many areas, Fritsch piqued the minds of those in attendance, especially students from Dr. Pascale Chapdelaine’s Contract Law class who came prepared with several questions to ask Fritsch at the presentation’s closing.
Following Dr. Pascale Chapdelaine’s generous remarks, Fritsch seamlessly transitioned to an online presentation and dove into LCO’s current projects, setting the stage for audience members to explore some insights on complex legal policy issues. In doing so, discussions of access to justice by Fritsch weaved through the room, guiding the conversation and shaping perspectives.
This day’s discussion focused on LCO’s project Improving Consumer Protection in the Digital Marketplace, which Fritsch had been diligently working on for the past two years. Especially eager to learn from students as they freshly engage with core contract law principles, Fritsch created the right atmosphere for bilateral learning. In fact, upon listening to Fritsch’s proposals, students were provided the opportunity to speak to them and contemplate how concepts like unconscionability, disclosure, standard boiler-plate contracts, etc., ought to apply to consumers in the digital world.
Fritsch began the presentation by reorienting the audience to the foundational principles and rationales underlying consumer protection law, particularly in the context of consumer contracting. This approach served to establish a common understanding among participants while also addressing the broader concern that consumer protection law has been deprioritized over the past decade or two.
Over the past 20 years, the rise of the digital marketplace has generated significant opportunities for innovation within the digital economy. However, as these technologies mature, critical questions emerge regarding the necessary steps for consumer protection in this evolving landscape. Fritsch emphasized the importance of revisiting these first principles to contextualize them within the current technological environment, examining whether and how the said technology presents unique challenges. This foundational inquiry, according to Fritsch, is the “genesis” for LCO’s consumer protection project.
When the Consumer Protection Act (2002) (“CPA”) was last significantly updated, Apple’s iPhone, Facebook, and YouTube had not yet launched, and Google had only celebrated its 5th birthday. During that time, major debates in Hansard revolved around spam, fraudulent practices, email contracts, and so forth. Having discerned what was once of importance to legislatures and scholars alike, the current technological reality, which Fritsch refers to as the “new normal,” makes clear that much has changed since then.
For this reason, Fritsch posed the questions: “What should change about the Act [CPA]? And why should we do that?” Transactions have shifted from the physical world of face-to-face interactions to a digital ecosystem where everyday exchanges are mediated through service providers, be it making a web search, launching an app, or booking a flight. In conducting these transactions, Fritsch notes that the “I agree” and “I accept” notifications, cookie pop-ups, and terms of service agreements, are just the surface of a complex system that demands examination and reform.
Today, people can see the legacy of 28th U.S. President Woodrow Wilson’s reforms in various regulatory frameworks that ensure consumer protection and fairness. Organizations like the Canadian Standards Association oversee the safety of technology, Tarion regulates building standards, and VQA certifies wine quality, to name a few. Besides, standard contracts govern essential transactions, and ensure, for instance, that mortgages, car loans, and landlord-tenant agreements, be subject to baseline standard terms— in consideration of the consumer, and especially for the consumer who might struggle to negotiate independently.
Other areas noted by Fritsch as being particularly vulnerable to exploitation have prompted the CPA to establish specific safeguards, such as in time-share deals, door-to-door sales, and payday loans. Much like the baseline protections introduced by Woodrow Wilson and 26th U.S. President Theodore Roosevelt, the CPA ensures that all consumer contracts adhere to fairness. Contracts cannot be deceptive or unconscionable, must be clear and comprehensible, and must provide consumers with proper notice, the opportunity to review terms, and transparency about the parties involved.
Despite the CPA offering some guidance, Fritsch circles back by recalling CPA’s ineffectiveness in protecting consumers in the digital marketplace. Fritsch argues that while digital marketplace products “aim to make life easier,” they are, in fact, “extraordinarily complex,” thus making applicability defunct.
According to The Guardian, an average American would spend nearly 250 hours a year reading through their digital contracts (The Guardian, 2017). In a similar vein, Vice reported that “reading the terms and conditions of online consumer contracts requires, on average, more than 14 years of education” (Vice, Feb 2019). Consumer choice is extremely limited, oftentimes resulting in the consumer’s perceived obligation to use a particular service, irrespective of whether it is truly desired. Fritsch calls to mind the importance of market forces working to discipline one-sided terms of service contracts, yet, to make matters worse, such action has not been carried out.
Resultingly, Facebook and eBay are flooded with fake reviews and counterfeit products, children are continuously exploited on social media and in video games through deceptive tactics, and more. These practices are allegedly permitted if consented to within the terms and services, which Fritsch considers nearly impossible to fully comprehend “even if you tried.”
An example that hits closer to home, Tim Hortons was caught exploiting Canadian consumers by requiring the installation of their app for “Roll Up to Win,” to thenceforth track two million users— even if the app was off, with or without consent. A journalist uncovered that its holding company in Brazil collected data on Canadians’ work, travel, social circles, and even medical visits. Apart from highlighting unchecked corporate power, the Office of the Privacy Commissioner of Canada investigated the matter and issued a report pleading for reforms in terms of service contracts, while a class action lawsuit settled for little more than a free coffee and donut; that is, the price of your privacy.
Bottom line: there are no existing legislated protections for newfound risks and consequences; roused by practices like mandatory registration, prohibition on public reviews, subscription traps (dark pattern tricks more generally), algorithmic content shaping and pricing, and so forth. The darkest reality is the lack of recourse to assist consumers in enforcing what few rights they have, as Fritsch strikingly illustrates, “[especially since the emergence of AI] there is nobody there.”
Turning on what Fritsch calls the “New Consumer Agenda,” a lot of work is being done in the E.U., U.S., and Australia, from E.U.’s Data Act (2024), to U.S.’s California Social Media Accountability and Transparency Act (2022), to Australia’s More Competition, Better Prices Act (2022); respectively. Canada, although proposed legislation in Parliament in recent years, such as the Online Harms Act, Consumer Privacy Protection Act, AI and Data Act, among others, none have come to fruition.
Fortunately, others have taken it upon themselves to work on the matter, including, and especially— the LCO. LCO’s June 2023 Consultation Paper anticipated the Consumer Protection Act (2023), which consolidated consumer notice and contract rules while establishing the basis for digital rights regulation. Key proposals consisted of stronger cancellation rights, the discoverability doctrine, limits on unilateral contract changes, online review protections, and increased penalties, with further recommendations submitted but deferred to Phase 2. In Phase 2, which Fritsch referred to as coming from a “regulatory angle,” LCO’s May 2024 Final Report proposed 32 recommendations. These tips on consumer protections incorporated key disclosures, plain language requirements, and dark pattern restrictions, with further enforcement-based regulations anticipated in 2025.
There is hope, then, as the government begins to recognize issues that the LCO have identified for consumers in the digital marketplace. However, the question remains: Are these protections specific enough for the digital marketplace? Especially since dark patterns, ineffective notice, and unfairness, or more specifically, “network effects” and “platform lock-ins”, continue to pervade the system. For example, dark pattern practices like burying cancelation deep in the software or unfairness in terms of price escalation clauses and purchased digital content no longer being owned by the user, inter alia.
The E.U. has appropriately identified dark patterns in their 2021 Unfair Commercial Practices Directive, to which Fritsch deduces that it would not be too unusual for Ontario to follow suit. While Ontario has begun to tackle “obstruction” and “sneaking,” they fail to address various instruments that the E.U. and U.S. have listed and practices they have identified as “dark pattern” and thus prohibited; namely, “forced action,” “interface interference,” “nagging,” “social proof,” and “urgency.”
As echoed throughout the presentation, the current landscape renders little recourse for consumers to make complaints. Fritsch calls for the enforcement of the CPA and, at the very least, for transparency on the already scarce investigations carried out by Consumer Protection Ontario. Additionally, he welcomes the private members Bill 122 (2023), which suggested establishing an independent Ontario “consumer watchdog” that could advocate for consumers and assist with their disputes by bringing issues on their behalf.
There’s still a long road ahead in protecting consumers in the digital marketplace, but momentum is rising as LCO evolves their project and target new areas. From content creator rights and platform lock-in to data transparency and algorithmic control, these issues demand attention according to Fritsch. The fight for a fairer, more accountable digital economy is not just necessary, it is long overdue.
The event ended on a high note with a lively “hot podium” session with students, where Fritsch reinforced key takeaways. He advocated for corporations to be held accountable through transparency measures like terms of service registries and data broker regulations, citing California and Texas as leading examples. AI’s role in shaping consumer rights was another topic, with the E.U. AI Act serving as a model for algorithmic transparency and banning exploitative profiling. The discussion also touched on the need for clear, consumer-friendly contracts, protections against unfair practices, and the challenge of implementing reforms in an increasingly complex market. While class actions have spoken to headline cases, Fritsch stressed for a deeper, systemic response.
Students walked away sensing that their toolboxes— comprised of their legal education and consumer experience— was adequate enough to fight for the future of digital consumer rights, be it through academia, policy, or the law. Complimenting Fritsch’s discussion, there is no better example than Windsor Law 3L Keerthi Chintapalli, who’s upcoming LTEC Lab blog post succinctly addresses the CPA 2023 and digital frontier, urging for additional reforms and the strengthening of privacy protections.
Windsor Law LTEC Lab extends a big thank you to Ryan Fritsch for sharing his invaluable insights with us, and to all the students who prepared thoughtful questions and engaged in the discussion. We also appreciate the efforts of Dr. Pascale Chapdelaine, Ms. Sue Arnold, Shafqat Hanif, and LTEC Lab RA’s Jessica Kabuli, Nikhita Nandeesha, Christina Lee, Daina Elias, and Cindy Lui who helped organize and support the event, making it a success!
For anyone who missed the event, the recording is available here.