Published on All About Estates
By Ruth Paul, October 2nd, 2024
With over 80% of Canadian households subscribing to at least one streaming service, internet-based streaming platforms are becoming the preferred way to consume video media. Subscribers often sign these lengthy agreements idly without any regard to their contents. Unbeknownst to many users, in exchange for a subscription, they may have forgone their right to pursue court actions against the streaming service, its owners and affiliates, and instead are required to adhere to arbitration agreements in jurisdictions outside their own.
A recent Florida case demonstrates the potential implications of such agreements for subscribers.
In October 2023, Dr. Kanokporn Tangsuan, her husband (“Jeffrey”), and Jeffrey’s mother dined at a Disneyworld restaurant in Florida (“Disney”). On its website, the restaurant held itself out as an “allergen free” facility… At the restaurant, Dr. Tangsuan informed the waiter of her allergy. After the waiter’s assurance that her meal was allergen free, Dr. Tangsuan ate her dinner… That evening, she died from an anaphylactic reaction caused by elevated levels of dairy and nuts in her system.
After her death, Dr. Tangsuan’s estate (the “Estate”) brought a wrongful death action against Disney. The Estate claimed that Disney was negligent in preparing Dr. Tangsuan’s meal and in improperly training their employees with respect to food allergies. In their response, Disney did not deny that the meal served to Dr. Tangsuan triggered her anaphylaxis reaction. Nor did they deny their negligence in preparing the meal or training their staff. Instead, Disney filed a Motion to Compel Arbitration on the basis that the Estate was barred from commencing its action in court.
Disney argued that since Jeffrey signed up for a free trial of Disney+ in 2019 and purchased Epcot tickets through his Disney account, both he and his late wife agreed to the terms and conditions of the Disney+ Subscriber Agreement. One such term was that an arbitrator – not the court – had the exclusive authority to resolve any disputes against Disney or its affiliates (the “Arbitration Clause”).
While the Estate may yet have their day in court, or reach a settlement with Disney before trial, this does not mean that the Arbitration Clause is null and void. The Subscriber Agreement still includes the Arbitration Clause. With over 153 million Disney+ subscribers, Disney remains free to invoke the Arbitration Clause against any grievance arising from “contract, tort, warranty, statute, regulation, or other legal or equitable basis.”
Ruth Paul, Articling Student at de VRIES LITIGATION LLP
