Consumer appeal concerning the enforceability of a mandatory mediation-arbitration clause and class action waiver in a mobile phone services contract.
The Court held that the competence-competence principle generally requires arbitral jurisdictional challenges to be decided first by the arbitrator, but the statutory interpretation issue raised a pure question of law that the court could decide.
Interpreting ss. 3 and 172 of British Columbia's consumer protection legislation textually, contextually and purposively, the majority held that claims for declaratory and injunctive relief under s. 172 were non-waivable and could proceed in Supreme Court notwithstanding the arbitration clause.
Other statutory, repealed statutory, and common law claims remained subject to a stay in favour of arbitration, and the class action waiver fell with the invalid portion of the arbitration clause.
