Fisher v. Airfoam Industries Ltd. (Quad-Lock Building System)

British Columbia Court held that arbitration terms incorporated by reference through online terms of sale were enforceable and not “inoperative” where the buyer signed order forms referring to those terms.

Facts

Fisher bought insulated concrete foam products from Quad-Lock Building Systems (Quad-Lock). Quad-Lock's sales order forms, signed electronically by Fisher, referred to the “Terms and Conditions of Sale” on the seller's website, which contained a mandatory arbitration clause. Fisher sued in court alleging the goods were defective. Quad-Lock sought a stay in favour of arbitration under section 8 of the British Columbia International Commercial Arbitration Act (“ICAA”), relying on the arbitration clause in those online terms. Fisher argued the clause was “inoperative” because the parties had a shared assumption that they would litigate in court.