Opt out of the arbitration agreement in Zoom’s Terms of Service now

Zoom April 1, 2023 email to customers about Terms of Service

This post represents the views of the undersigned author only. You should consult a lawyer of your own if you want advice on your situation. See disclosures.

On April 1, 2023, Zoom sent an email to users stating that it had updated its Terms of Service. Purportedly those changes had an effective date of March 31, 2023—ponder how that works for formation of a valid contract, and just how much “bargaining” power consumers really had in that.[1]

If you are a Zoom user, you should opt out to preserve your rights in case a future dispute arises and you want to be able to sue them in real court (or benefit from a federal class action brought by others). Here’s how to do it:

27.11 Opt-Out. You may reject this Arbitration Agreement and opt out of arbitration by sending an email to opt-out@zoom.us within (i) thirty (30) calendar days of April 1, 2023 if you are an existing user, or (ii) thirty (30) calendar days of the date you created your account if you are a new user. Your opt-out notice must be individualized and must be sent from the email address associated with your individual Zoom account. An opt-out notice that purports to opt out multiple parties will be invalid as to all such parties. No individual (or their agent or representative) may effectuate an opt out on behalf of other individuals. Your notice to opt-out must include your first and last name, address, the email address associated with your Zoom account, and an unequivocal statement that you decline this Arbitration Agreement. If you do decide to opt out, that opt out will apply to this Arbitration Agreement and all previous versions thereof, and neither party will have the right to compel the other to arbitrate any Dispute. However, all other parts of this Arbitration Agreement will continue to apply to you, and opting out of this Arbitration Agreement has no effect on any other arbitration agreements that you may enter into in the future with us.

The new arbitration agreement is incredibly long—and different from what used to be standard arbitration provisions.

Unlike normal arbitration agreements of years past, which (simply) banned class actions and forced people to proceed individually and confidentially in arbitration, this version dictates what happens if a lot of customers individually sue in arbitration.

As explained below, the strategy of foreclosing class actions using mandatory arbitration backfired: highly motivated plaintiffs will still file their disputes individually. And paying lawyers and arbitration fees to fight against 12,500+ individual plaintiffs on 12,500+ individual cases is way more costly than litigating against one aggregated opponent, even if the ultimate recovery (e.g., damages award) being paid out is smaller.

So these contractual changes try to get back some of the efficiency of aggregation, while still denying people a chance to have that fight in real courts—courts that are accustomed to supervising class actions and deciding claims on an aggregate basis. Ask yourself: what’s the point? Why try so hard to avoid going to a real federal or state court, unless this works out better for the company?

“The [mandatory arbitration] system is set up to produce skewed, pro-defendant results, because defendants are buyers in the market for private judging: the initial choice of private judging over public dispute resolution belongs solely to the defendants. … This means that arbitration vendors’ biggest marketing incentive is to make arbitration attractive to defendants—more attractive than courts.”

David S. Schwartz, Mandatory Arbitration and Fairness, 84 Notre Dame L. Rev. 1247, 1338 (2009)

The new provisions say, in effect, that if more than 50 people represented by the same lawyers/organizations have similar claims against Zoom, 16 of them get hand-picked and decided first, while everyone else’s claims get paused. Once those 16 “bellwether” claims are decided, everyone else is then forced to mediate (i.e., negotiate), under the theory that the parties will likely settle based on how the bellwether cases fared.

Yet at the same time, the agreement provides separately that the outcome of any one arbitration (e.g., if a consumer wins against the company) shall have “no preclusive effect” in any other one—a rule that, if enforceable, is net helpful to the company because adverse rulings can’t be held against it and have to be re-fought each time. So if the claimants want to pursue their case, they still face the procedural hurdles of arbitration, like limited discovery, almost no option to appeal, and the unavailability of meaningful injunctive relief.[2]

Consumers already don’t read terms of service when they click through a sign-up online. Indeed, many “consumers are unaware of forced arbitration clauses … sometimes hidden inside of envelopes, delivery boxes, and privacy policies”—yet courts have enforced arbitration agreements against consumers who had no actual awareness of the provisions.[3] But how many people understand what this agreement is doing and what it means for their rights? Under what theory of the formation of a valid contract can we really say that a consumer—other than a savvy lawyer—knew what they were “agreeing” to?

This quote shows how long some of the new provisions in Zoom’s arbitration agreement are—and it’s just an excerpt:

27.6 Mass Action Waiver. You and Zoom agree that, except as specified in Section 27.7 below, each of us may bring claims against the other only on an individual basis and not on a class, collective, representative, or mass action basis, and the parties hereby waive all rights to have any Dispute be brought, heard, administered, resolved, or arbitrated on a class, collective, representative, or mass action basis. Subject to this Arbitration Agreement, the arbitrator may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by the party’s individual claim. Notwithstanding anything to the contrary in this Arbitration Agreement, if a court decides by means of a final decision, not subject to any further appeal or recourse, that the limitations of this Section 27.6 are invalid or unenforceable as to a particular claim or request for relief (such as a request for public injunctive relief), you and Zoom agree that that particular claim or request for relief (and only that particular claim or request for relief) shall be severed from the arbitration and shall be pursued in the state or federal courts located in San Jose, California. This subsection does not prevent you or Zoom from participating in a class-wide settlement of claims.

27.7 Bellwether Arbitrations. To increase the efficiency of administration and resolution of arbitrations, you and Zoom agree that if there are fifty (50) or more individual arbitration demands of a substantially similar nature brought against either party by or with the assistance of the same law firm, group of law firms, or organizations within a one hundred and eighty (180) day period (“Mass Filing”), the parties shall select sixteen (16) individual arbitration demands (eight (8) per side) for arbitration to proceed (“Bellwether Arbitrations”). Only those sixteen (16) arbitration demands shall be filed with the arbitration provider, and the parties shall hold in abeyance, and not file, the non-Bellwether Arbitrations. Zoom will pay the arbitration provider’s costs for the sixteen (16) Bellwether Arbitrations. The statutes of limitation, including the requirement to file within one (1) year in Section 27.10 below, shall remain tolled when non-Bellwether arbitration demands are held in abeyance. While the Bellwether Arbitrations are adjudicated, no other demand for arbitration that is part of the Mass Filing may be processed, administrated, or adjudicated, and no filing or other administrative costs for such a demand for arbitration shall be due from either party to the arbitration provider. If, contrary to this provision, a party prematurely files non-Bellwether Arbitrations with the arbitration provider, the parties agree that the arbitration provider shall hold those demands in abeyance.

All parties agree that arbitration demands are of a “substantially similar nature” if they arise out of or relate to the same event or factual scenario and raise the same or similar legal issues and seek the same or similar relief. Any party may request that the arbitration provider appoint a sole standing administrative arbitrator (“Administrative Arbitrator”) to determine threshold questions such as (i) whether the Bellwether Arbitration process is applicable or enforceable, (ii) whether particular demand(s) are part of a Mass Filing, and (iii) whether demands within a Mass Filing were filed in accordance with this Agreement, including Section 27.3. In an effort to expedite resolution of any such dispute by the Administrative Arbitrator, the parties agree that the Administrative Arbitrator may set forth such procedures as are necessary to resolve any disputes promptly. The Administrative Arbitrator’s costs shall be paid by Zoom.

The parties shall work in good faith with the arbitrator to complete each Bellwether Arbitration within one hundred and twenty (120) calendar days of its initial pre-hearing conference. The parties agree that the Bellwether Arbitration process is designed to achieve an overall faster, more efficient, and less costly mechanism for resolving Mass Filings, including the claims of individuals who are not selected for a Bellwether Arbitration.

Following resolution of the Bellwether Arbitrations, the parties agree to engage in a global mediation of all remaining arbitration demands comprising the Mass Filing (“Global Mediation”). The Global Mediation shall be administered by the arbitration provider administering the Bellwether Arbitrations. If the parties are unable to resolve the remaining demands for arbitration comprising the Mass Filing within thirty (30) calendar days following the mediation, the remaining demands for arbitration comprising the Mass Filing shall be filed and administered by the arbitration provider on an individual basis pursuant to the arbitration provider’s rules, unless the parties mutually agree otherwise in writing. Any party may request that the arbitration provider appoint an Administrative Arbitrator to determine threshold questions regarding the newly filed demands.

The parties agree to cooperate in good faith with the arbitration provider to implement the Bellwether Arbitration process, including the payment of filing and administrative costs for the Bellwether Arbitrations, deferring any filing costs associated with the non-Bellwether Arbitration Mass Filings until the Bellwether Arbitrations and subsequent Global Mediation have concluded, and cooperate on any steps to minimize the time and costs of arbitration, which may include: (i) the appointment of a discovery special master to assist the arbitrator in the resolution of discovery disputes; and (ii) the adoption of an expedited calendar of the arbitration proceedings. This Bellwether Arbitration provision shall in no way be interpreted as authorizing a class, collective, or mass action of any kind, or an arbitration involving joint or consolidated claims under any circumstances, except as expressly set forth in this provision. The statutes of limitation applicable to each arbitration demand within a Mass Filing, including the requirement to file within one (1) year in Section 27.10 below, shall remain tolled from the time a party makes a Pre-Arbitration Demand to the time when that party files the arbitration demand with the arbitration provider.

27.8 Settlement Offers and Offers of Judgment. At least ten (10) calendar days before the date set for the arbitration hearing, you or Zoom may serve a written offer of judgment upon the other party to allow judgment on specified terms. If the offer is accepted, the offer with proof of acceptance shall be submitted to the arbitration provider, who shall enter judgment accordingly. If the offer is not accepted prior to the arbitration hearing or within thirty (30) calendar days after it is made, whichever occurs first, it shall be deemed withdrawn, and cannot be given as evidence in the arbitration. If an offer made by one party is not accepted by the other party, and the other party fails to obtain a more favorable award, the other party shall not recover their post-offer costs and shall pay the offering party’s costs from the time of the offer (which, solely for purposes of offers of judgment, may include reasonable attorneys’ fees to the extent they are recoverable by statute, in an amount not to exceed the damages awarded).

The parties agree that any disputes with respect to settlement offer(s) or offer(s) of judgment in a Mass Filing are to be resolved by a single arbitrator to the extent such offers contain the same material terms. For arbitrations involving represented parties, the represented parties’ attorneys agree to communicate individual settlement offer(s) or offer(s) of judgment to each and every arbitration claimant or respondent to whom such offers are extended.

27.9 Arbitration Costs. Except as provided for in a Mass Filing (see Section 27.7), your responsibility to pay any filing, administrative, and arbitrator costs will be solely as set forth in the applicable arbitration provider’s rules. If you have a gross monthly income of less than 300% of the federal poverty guidelines, you may be entitled to a waiver of certain arbitration costs.

27.10 Requirement to File Within One Year. To the extent permitted by applicable Law, and notwithstanding any other statute of limitations, any claim or cause of action under this Agreement (with the exception of disputes under Section 27.2(2)) must be filed within one (1) year after such claim or cause of action arose, or else that claim or cause of action will be permanently barred. The statute of limitations and any arbitration cost deadlines shall be tolled while the parties engage in the informal dispute resolution process required by Section 27.3 above.

One other change of note: Whereas the older, short arbitration agreement elected to use the American Arbitration Association to decide claims, the new contract selects National Arbitration & Mediation (NAM).

Think about how the changes to the arbitration agreement reveal the imbalance in bargaining power on this supposed “agreement.” Zoom had the ability to purportedly replace its entire earlier arbitration agreement (“This Arbitration Agreement supersedes all prior versions.”)—but individual consumers have no such ability to do that. At any time, Zoom purportedly can change not just how claims are arbitrated but even who presides over the arbitration—but you, you normal person, you don’t get to do that.

In fact, Zoom even included a provision that you can’t even have an agent send your opt-out of arbitration on your behalf. You don’t get to use a lawyer. You don’t get to opt out for your minor child.

Your opt-out notice must be individualized and must be sent from the email address associated with your individual Zoom account. An opt-out notice that purports to opt out multiple parties will be invalid as to all such parties. No individual (or their agent or representative) may effectuate an opt out on behalf of other individuals.

Section 27.11.

To be clear, Zoom isn’t the only company making these changes. In recent months, Showtime (updated January 12, 2023), HBO Max (updated December 20, 2022), have all added similar mass-claim provisions that switch to using NAM as the arbitration provider. Query why they are all flocking away from AAA and JAMS to NAM, and what that suggests about what kind of incentives there are for NAM to differentiate itself from the other providers by being… more friendly to defendant companies?

And Showtime’s terms, most egregiously, even purport to limit discovery—making it that much harder for a claimant to get the internal evidence proving their claim.[4] And these agreements have suspiciously similar wording, suggesting that maybe the same lawyers are responsible for putting these changes in.

How we got here

Historically, class actions in courts allowed for aggregation of many claims (sometimes claims from people nationwide) in one case. Those rules were intended to enable efficient and fair resolution of disputes that share a common legal cause. That’s important where the actions of one national or multinational company could easily affect millions of users—and simultaneously harm millions of people with a common legal claim against the company.

To avoid mass torts and class actions, companies started putting in arbitration agreements to try to foreclose that type of lawsuit, achieving their own form of private tort reform. It is conventional for arbitration agreements to force claims to be arbitrated on an individual basis.

But clever plaintiff’s lawyers figured out how to game the system: if they had 1000 clients who were arguably harmed, they could file 1000 demands for individual arbitration, all following the express terms of the arbitration agreement. Since many agreements required the company to pay for the cost of filing the arbitration,[5] this strategy could rack up a giant bill for the company, to proceed with the arbitration.

12,500 Uber drivers did exactly that: filing many similar (even verbatim) claims individually against the company. That caused Uber to get in a legal fight with the arbitration provider, JAMS! Uber tried to weasel out of paying the arbitration fees by arguing that JAMS could aggregate the claims or work more efficiently on common issues.

Meanwhile, other companies that faced over 75,000 individual arbitration claims, decided to end their arbitration agreements altogether and revert back to going to court, as the New York Times reported. Again, query how exactly these contracts of adhesion can be imposed on customers—where the giant company can unilaterally decide to stop using arbitration by editing its terms, but individual customers have no choice.

Legislative reform on the horizon?

This all should be banned. And lawyers who are trying to take advantage of the system this way should really question whether what they are doing is good for their clients or good for the system. Egregious abuse of mandatory arbitration is a surefire way to attract the attention of legislators.

The 117th Congress took some action. The House of Representatives passed H.R. 963 (the FAIR Act of 2022) to end mandatory consumer arbitration. But that bill never made it through the Senate during that term.

The House Report observed:

Over the past several decades, forced arbitration clauses have become virtually ubiquitous in everyday contracts. Often buried deep within the fine print of employment and consumer contracts, forced arbitration deprives millions of Americans of their day in court to enforce state and federal rights. Because arbitration lacks the transparency and precedential guidance of the justice system, there is no guarantee that the relevant law will be applied to these disputes or that fundamental notions of fairness and equity will be upheld in the process.

Unlike the judicial system—in which courts’ decisions are generally public and, by building on precedent, cumulatively create a body of law—the results of arbitration disputes are often kept secret. …

Additionally, the company imposing arbitration often selects the presiding arbitrator or arbitration provider, creating a conflict of interest in which the purportedly neutral arbitrator may be motivated by the prospect of obtaining repeat business from the company rather than focused on fairly assessing the claim. …

As a result of the decline of enforcement of state and federal statutory protections, forced arbitration makes it more likely that corporate harms and abuse will go unchallenged. … as Professor Gilles observes, “forced arbitration is not an alternative regime for resolving claims, it is a means of suppressing legal claims altogether.” Judge William G. Young, who was appointed by President Ronald Reagan, likewise stated that the proliferation of forced arbitration clauses means that “business has a good chance of opting out of the legal system altogether and misbehaving without reproach.”

Forced Arbitration Injustice Repeal Act of 2022, H.R. Rep. No. 117-270, at 4-5 (2022).

It’s time for Congress to take up this bill again. Mandatory arbitration is systematically unfair to consumers, and these recent changes show just how far companies will go to press their advantage in this private system.


1 Section 15.1 says it’s your responsibility as a customer to monitor their contractual changes, and “If you continue to use the Services after the effective date of the Changes, then you agree to the revised terms and conditions.” Seems dubious if the effective date was before it told customers.
2 “An arbitration award shall have no preclusive effect in another arbitration or court proceeding involving Zoom and a different individual.” Section 27.4. On its face, this could cut both ways, both helping the company avoid preclusive unfavorable rulings, and harming the company where favorable rulings should also apply to later claims. But under ordinary preclusion doctrines, some decisions that are favorable to the company can’t be held against future claimants who had no ability to participate in the earlier dispute or whose facts differ, whereas some decisions that are unfavorable to the company can be held against it despite the difference in the identity of the later claimant. On balance, this sort of rule probably skews slightly in favor of the company.
3 H.R. Rep. No. 117-270, at 8-9 (2022).
4 Section 1.3 (“Discovery During Arbitration”) in Showtime’s terms provides: “The parties shall each be limited to a maximum of one (1) fact witness deposition per side… Document requests shall be limited to documents that are directly relevant to the matter(s) in dispute or to its outcome; shall be reasonably restricted in terms of time frame, subject matter and persons or entities to which the requests pertain; shall not include broad phraseology such as ‘all documents directly or indirectly related to’; and shall not be encumbered with extensive ‘definitions’ or ‘instructions.’ … Electronic discovery, if any, shall be limited as follows. Absent a showing of compelling need: (i) electronic documents shall only be produced from sources used in the ordinary course of business, and not from backup servers, tapes or other media; (ii) the production of electronic documents shall normally be made on the basis of generally available technology in a searchable format that is usable by the requesting party and convenient and economical for the producing party; (iii) the parties need not produce metadata, with the exception of header fields for email correspondence; (iv) the description of custodians from whom electronic documents may be collected should be narrowly tailored to include only those individuals whose electronic documents may reasonably be expected to contain evidence that is material to the dispute; and (v) where the costs and burdens of e-discovery are disproportionate to the nature of the dispute or to the amount in controversy, or to the relevance of the materials requested, the arbitrator may either deny such requests or order disclosure on the condition that the requesting party advance the reasonable cost of production to the other side, subject to the allocation of costs in the final award.” How many consumers understand what the heck this is about?
5 But see section 27.9 of Zoom’s arbitration agreement that now shifts those back to claimants.

Pretty sure the IRS made a typo in Publication 519

There’s a provision that allows aliens in the U.S.[1] to choose to be treated as a U.S. resident for tax purposes even if they would not otherwise qualify as a resident. Income tax rules themselves are already really confusing — and they are even more complicated for foreigners in the U.S. — so a typographic error could really confuse a taxpayer.

I think the IRS made a typographic error, but I’m not even sure how to get in touch with them to fix this.

Motivating example

Suppose you arrive in the U.S. for the very first time on October 1, 2015 to work for the foreseeable future on a TN-1 (NAFTA Professional) visa. Because the period from 2015-10-01 to 2015-12-31 is insufficient to meet the Substantial Presence Test,[2] you would otherwise be a nonresident alien for tax year 2015. This would mean your income in the United States might be subject to taxation in the U.S. as well as in your home country. What if you wanted to be treated as a resident alien starting on October 1, 2015 — despite not satisfying the Substantial Presence Test?

This is the First-Year Choice, and it’s documented in Publication 519 (“U.S. Tax Guide for Aliens”) by the IRS.

The error

I got a little confused when I first read the rule, because it seemed to require an impossibility:

2015 Publication 519 typo on page 7

Let me excerpt that to show why it’s so self-contradictory: “If you do not meet either the [GCT] or the [SPT] for 2014 … but you meet the [SPT] for 2014.”

Huh? Clearly they meant 2016 there. Moreover, if you met the SPT for 2014, the current tax year — 2015 — wouldn’t be your first year in the U.S.

This is confirmed by the bulleted list on the following page:

2015 Publication 519 excerpt from page 8

Motivating example resolved

If you are going to satisfy the Substantial Presence Test in the following tax year — 2016 — you can choose to pretend to be a U.S. resident from 2015-10-01 to 2015-12-31 as well, if you meet all of the requirements in the bulleted list above.



1 Foreigners, not extraterrestrials.
2 The Substantial Presence Test (SPT) requires, in its simplest form, at least 183 days of physical presence within the United States in a three-year period.

A new blog series?

Over dinner this week, I was revealed as one of those weirdos who actually read the fine print. Yep, once in a while—embarrassingly often—I’ll actually dig right into those long documents that come with the health insurance, the credit card offer, or the website signup.

Forced arbitration clause in Amex Premier Rewards Gold cardmember agreement.
When was the last time you actually read something like this?

Why? Because the purpose of these “Terms and Conditions,” or “Cardmember Agreements,” or whatever else they’re calling these lengthy, prewritten, one-sided contracts, is to modify default legal rules/rights in such a way that benefits the parties that wrote them. So, even if I don’t have any practical choice in whether or not to use Facebook, even if I can’t really negotiate with American Express and rewrite the terms of the extended warranty, at the very least it’s useful to know what my rights are—and what hidden benefits there might be that most people don’t know about.

So a friend thought it might be fun if I just occasionally write about these things. Perhaps a sort of Bad Terms & Conditions section on my blog, or … Digging through the Fine Print

Still working on the name.

I’ll try not to fall into the bad habit of labelling companies “fascists” or something similarly colourful, which other blogs highlighting these issues inevitably find themselves doing. (I mean, literally every company that deserves any business does it, so what’s a conscientious consumer to do?) For what it’s worth, Consumerist already writes about this and does a pretty good job of it.

Continue reading “A new blog series?”

Another startup blatantly steals university trademarks

A friend directed my attention to a startup-y website selling “cheap smartphone [insurance] coverage” for “as little as $3 a month”. Right at the top of the Penn-branded subdomain (penn.getcovered.co) was an iPhone mockup showing the Penn shield:

GetCovered ripping off Penn seal

highly doubt they went through all the trouble of actually licensing the trademark from the university. Penn’s policy on use of its logos by external entities provides (emphasis added):

Outside sponsors of University programs or activities often seek to use University names or insignia in promotional or advertising materials. While the University is pleased to recognize the contributions of sponsors, such recognition must not suggest University endorsement of the sponsor’s activities. Therefore, University names or insignia may not be used in connection with any outside entity’s name or logo without prior approval of the Secretary of the University. In general, the Secretary will approve uses which recognize or acknowledge the sponsor’s contribution to the University program or activity. Uses which, in the Secretary’s judgment, may suggest University endorsement or approval of the sponsor’s goods or services will not be permitted.

The big issue, of course, is the risk of confusion — by consumers, etc — who might think that the service is sponsored or endorsed by the university. There would be a pretty good prima facie case for trademark infringement, especially since the registrant behind the domain name appears to be a Stanford grad with no connection to Penn.

But to top it all off, the site seems to be lying on its face. The Penn page includes a quote from a “Leah B, Philadelphia, PA”:

Leah B, Philadelphia, PA quote

but the exact same quote is used on the non-Penn-branded homepage of GetCovered, this time from “Leah B, Washington, DC”!

Leah B, Washington, DC quote

As an alum, I certainly don’t want the university’s shield to be used in connection with this company. What they’re doing is strangely reminiscent of the Campus Backup service that OCM was marketing a few years ago — which shut down after my blog post overtook their site in search engines.

Update (2015-11-02): a quick Google search of the opening sentence of the quote directed me to the source — a 2012 comment on a Gawker post by a Gawker contributor, no obvious connection to GetCovered.

Renewing date of departure by physical presence in Canada

TL;DR many Canadians in the US have more ways to vote, even under the 5-year limit, than previously thought.

A week ago, I mailed in my special ballot to Elections Canada. I can now say I’ve voted in the 2015 Canadian federal election!

There’s been a lot of discussion among Canadians at HLS, and folks in the Harvard Graduate Student Canadian Club, about the logistics of voting in this election. Notably, while most of them don’t have to deal with having a green card (as I do), some grad students may question how the 5-year limit applies to them.

Letters from Elections Canada, sent to two students who emailed them to inquire about logistics, support two conclusions.

1. Voting physically in Canada still possible

Voters who have been living abroad for 5 consecutive years or more and who are not exempt from the 5 year limit may vote in person at the advance polling station or the regular polling station corresponding to an address for which they have a proof of address (they cannot vote by special ballot).
– Elections Canada, in response to Peter W[1]

The provisions of the Canada Elections Act that prohibit registering to vote by mail from abroad after five years only apply to the special ballot. If you are a Canadian who has been a nonresident for more than five years, apparently you can still vote in person. (Canadian news has reported instances of people successfully using this “loophole.”) Advance voting days are October 9–12, conveniently during Canadian Thanksgiving and Columbus Day in the US.

2. Fluid definition of residency—unlike taxation and immigration

Thank you for your email … in which you requested information for students who have been living outside for more than five years. There is no differentiation between student voters abroad and non-student voters abroad; the five-year rule remains the same.

I would like to take this opportunity to clarify that there is no minimum period of time that an elector must have been in Canada in order to be considered as having resided there. It is based on where you consider your home address to be and the date of departure is based on the last day you consider yourself having lived in Canada.
– Elections Canada, in response to Peter W[2]

“Residing” has been interpreted here in the most liberal way possible by Elections Canada. It’s as though they are trying to preserve the broadest scope of voting rights possible in light of the Court of Appeal for Ontario ruling. (Good for them!)

The paragraphs quoted provide the basis for this interpretation:

Any instance of physical presence in Canada can be enough to renew your date of departure if you considered yourself to have lived in Canada during that stay.[3]

Elections Canada is not asserting an objective test of residency. They are not inquiring into whether the U.S. Department of Homeland Security treats you as a resident alien. They do not care when you became a nonresident for tax purposes on the CRA’s books.

So, in my interpretation, the following example set of facts satisfies their criteria and entitles the citizen to register to vote by special ballot (critical facts highlighted):

  1. Alice is a Canadian citizen.
  2. Alice is 23 years old.
  3. Alice ordinarily lives in a rented apartment in Cambridge, MA.
  4. Alice attends HLS on an F-1 student visa.
  5. Alice started studying in the U.S. on an F-1 visa 6 years ago, since August 2009.
  6. Alice intends to return to live and work in Canada after graduation.
  7. Alice last lived in the Trinity-Spadina riding in Toronto, ON, before becoming a student in the U.S.
  8. Alice last visited her parents on September 1, 2015, at that same residence in Toronto, for one day. She left on September 2.
  9. Alice does not consider any other place to be her permanent place of abode.
  10. Alice considered herself to have lived in Canada during that day. (remember, “no minimum period of time” is necessary)
  11. Alice is a temporary resident outside Canada for fewer than five years, and may register to vote by special ballot with a departure date of September 2, 2015.

For an alternative hypothetical, see footnote 4.[4] Remember that these are only predictions of eligibility.

TL;DR many Canadians in the US have more ways to vote, even under the 5-year limit, than previously thought.

Again, just a reminder: I’m not a lawyer (yet). Don’t take this as legal advice. Do take it as the opinion of someone who believes the right to vote is constitutionally guaranteed to all Canadian citizens, and who wouldn’t mind seeing this tested in a legal challenge.


1 Posted on Facebook in the HLS Canadians 2015–2016 group.
2 Second paragraph is substantially identical in a separate response to Jacob Q.
3 There is a textualist reading of the statute that supports this interpretation, based on the term “consecutive,” which would be interrupted by stays in Canada. See Canada Elections Act, S.C. 2000, c 9, § 222(1)(b) (applying the five-year limit to those “residing outside Canada for less than five consecutive years”).
4 Bob is a 22-year-old Canadian citizen, who works in New York City on post-completion OPT on an F-1 visa after graduating from a 4-year undergraduate in the U.S. Prior to his undergrad, Bob lived with his parents in Markham and considers this to be his home address in Canada. He has been in his F-1 status for 62 months, and is considered a US resident alien for tax purposes. Bob visited his girlfriend in downtown Toronto for a week during the summer, living at her apartment there. Bob intends to return to Canada upon the expiration of his F-1 visa. Bob may register to vote by special ballot in the Markham—Unionville riding, using the departure date following his stay during the summer.

I get to vote!

… at least in this federal election.

After Elections Canada’s letter requesting my intended date of return, I responded by postal mail declaring a future date that should accommodate my intended career development in the United States. Needless to say, that intended date was pretty far into the future. At the close of my letter, I stressed that the Canada Elections Act has no statutory time limit on the intention to return:

I also write to emphasize that I became a nonresident of Canada upon acquiring residence in the United States on ****** **, 2014. Therefore, I am within the five-year limit on actual time abroad recently reinstated by the Court of Appeal for Ontario, even if my intended return would be beyond five years, since the applicable statute imposes no temporal restriction on the intended date of return for an eligible elector “who… (c) intends to return to Canada to resume residence in the future.” Canada Elections Act, S.C. 2000, c. 9, § 222(1).

I look forward to receiving a special ballot from your office at the upcoming election.

This week, I received the special ballot voting kit, which includes a guide pamphlet, ballot paper, an inner envelope, an outer envelope, and a preaddressed envelope.

Voting kit for special ballot
Voting kit for special ballot

* As far as I am aware (and yes, I’ve checked), it is not illegal in Canada or Ontario to photograph this kit, provided that no vote has been marked. I haven’t yet decided for whom I will vote, so this photography serves simply as an illustration of what to expect for Canadian expats, rather than as evidence of my vote.

Hopefully this won’t be the last time I get to vote in Canada from abroad.

Are you a Canadian temporarily abroad?
Register to vote with Elections Canada!

A letter from Elections Canada

We are writing to request information to update the International Register of Electors. This request is a result of a July 20, 2015, ruling by the Ontario Court of Appeal, which took effect immediately.

… To receive a special ballot at the upcoming election, you must provide:

– The month and year you plan to return to Canada to reside

The implementation of this ruling demonstrates the imperfect nature of restrictions on expat voting—not only does the law have an arbitrary 5-year bar on voting from abroad, but for all expatriates Elections Canada is demanding a crystal clear declaration of the date they will return to Canada.

I think it’s worth noting that the underlying text of the statute only requires that an eligible elector “intends to return to Canada to resume residence in the future.” Canada Elections Act, S.C. 2000, c. 9, § 222(1)(c).

The agency could likely have fulfilled the statutory requirement by requiring only a simple checkbox that I do, in fact, intend to return to Canada “at some time in the future.” But that’s not what they did.

Click for the full PDFClick here for the full PDF, including the reverse side.

See also my previous two posts on this subject: Let me vote, dammit and A little more about expat voting in Canadian elections.