Court of Appeal for Ontario

Docket: C59812

Judges: Weiler, Blair and van Rensburg JJ.A.

BETWEEN

Avraham Wellman Plaintiff (Respondent)

and

TELUS Communications Company, Tele-Mobile Company and TELUS Communications Inc. Defendants (Appellants)

Counsel

For the Appellants: Gerald L.R. Ranking and Andrew Borrell

For the Respondent: Joel P. Rochon, Peter Jervis, Lisa Fenech and Eliezer Karp

Heard: September 21, 2016

On Appeal

From the order of Justice Barbara A. Conway of the Superior Court of Justice, dated November 25, 2014, with reasons reported at 2014 ONSC 3318, 63 C.P.C. (7th) 50.

van Rensburg J.A.:

A. OVERVIEW

[1] This is an appeal from an order denying a partial stay of proceedings in favour of arbitration, in the context of a class proceeding.

[2] The action involves claims by consumer and business customers against TELUS Communications Company, Tele-Mobile Company, and TELUS Communications Inc. (together, "TELUS Mobility"). The representative plaintiff claims that TELUS Mobility, during the class period, overcharged customers by rounding up calls to the next minute without disclosing this practice.

[3] TELUS Mobility's contracts contained standard terms and conditions, including a mandatory arbitration clause. TELUS Mobility concedes that the effect of s. 7(2) of the Consumer Protection Act, 2002, S.O. 2002, c. 30, Sched. A (the "Consumer Protection Act"), is that claims in respect of consumer contracts can proceed in court. It submits, however, that the non-consumer claims – that is, the claims of business customers – are governed by the mandatory arbitration clause and ought to have been stayed.

[4] The only issue on appeal is whether the motions judge erred in refusing to stay the non-consumer claims pursuant to s. 7(5) of the Arbitration Act, 1991, S.O. 1991, c. 17 (the "Arbitration Act"). Section 7(5) provides for a partial stay of court proceedings to be granted where an arbitration agreement deals with only some of the matters in respect of which the proceeding was commenced and it is reasonable to separate the matters dealt with in the agreement from the other matters. All relevant statutory provisions are set out in Appendix A to these reasons.

[5] The motions judge relied on the authority of this court's decision in Griffin v. Dell Canada Inc., 2010 ONCA 29, 98 O.R. (3d) 481, leave to appeal refused, [2010] S.C.C.A. No. 75, in deciding not to grant a partial stay pursuant to s. 7(5) of the Arbitration Act. The appellants assert that the analysis by this court in Griffin has been superceded or modified (I use the term "overtaken") by the decision of the Supreme Court of Canada in Seidel v. TELUS Communications Inc., 2011 SCC 15, [2011] 1 S.C.R. 531, and that, applying the reasoning in Seidel, a partial stay ought to have been granted. The motions judge's interpretation of the Arbitration Act in light of Griffin and Seidel is therefore at issue in this appeal.

[6] Griffin involved a proposed class action on behalf of purchasers of Dell computers. Dell's standard form agreement contained a mandatory arbitration clause. The motion judge refused Dell's request to stay the class action in favour of arbitration and granted conditional certification. A five-judge panel of this court concluded that the Consumer Protection Act applied to exclude the application of Dell's arbitration clause to all consumer claims after a specified date. The panel also refused to grant a partial stay of the non-consumer claims on the basis of s. 7(5) of the Arbitration Act, concluding that it was not reasonable to separate the matters dealt with in the agreement from the other matters in the action.

[7] Seidel concerned a dispute arising out of a cell phone contract between TELUS Communications Inc. and one of its customers who sought to bring a class action. The contract contained a mandatory arbitration clause. A majority of the Supreme Court concluded that, based on the combined effect of s. 3 and s. 172 of the Business Practices and Consumer Protection Act, S.B.C. 2004, c. 2 ("BPCPA"), Ms. Seidel's claims under s. 172 could proceed in court despite the arbitration clause and that the stay imposed by the court below would be lifted in respect of those claims, and remain in place for the other claims in the action, which, pursuant to the parties' agreement, were required to be arbitrated.

[8] For the reasons that follow I conclude that the motions judge was correct in applying Griffin to determine whether a partial stay of proceedings should be granted under s. 7(5) of the Arbitration Act in a proposed class proceeding involving both consumer and business customer claims. While both Griffin and Seidel involved arbitration clauses in the context of a proposed class proceeding, Seidel was decided under the relevant laws of British Columbia ("B.C."), which differ in material ways from those of Ontario. Seidel emphasizes that, in determining whether a court action can proceed in the face of an agreement to arbitrate, it is essential to consider the legislation that applies in the relevant jurisdiction. Griffin remains good law in respect of proceedings commenced in Ontario, and has not been overtaken by Seidel. As such, I would not interfere with the motions judge's refusal to stay the claims of business customers and hence her inclusion of such customers in the certified class. I would therefore dismiss the appeal.

B. BACKGROUND

(1) Nature of the Class Action

[9] The respondent is the representative plaintiff in a class proceeding against TELUS Mobility concerning allegations that the mobile service provider engaged in an undisclosed billing practice of rounding up calls to the next minute. The class consists of some two million subscribers. Seventy percent are consumers who purchased TELUS Mobility plans for personal use, and thirty percent are non-consumers who purchased plans for business use.

[10] Mobile services were introduced in Canada in 1985. Until the mid-1990s, the major telecommunications companies in Canada billed for voice services on a per-minute basis. In 1996 (with the introduction of digital cell networks), service providers started billing on a per-second basis. In the summer of 2002, TELUS Mobility and others returned to per-minute billing for all new cell phone plans.

[11] The monthly plans offered during the proposed class period included a fixed number of minutes for a set fee, with additional charges for excess minutes. Usage was calculated by rounding up customer calls to the next minute – so, for example, a one-minute, two-second call was rounded up to two minutes.

[12] The representative plaintiff alleges that during the class period, between 2002 and 2010, TELUS Mobility's standard terms and conditions made no mention of rounding up. In July 2010, TELUS Mobility amended its standard terms and conditions to provide: "The airtime for each voice call is rounded up to the nearest minute, unless your rate plan… states otherwise." The distribution of this notice marked the end of the class period.

[13] Three causes of action are asserted: breach of contract, breach of the Consumer Protection Act, and unjust enrichment. The action claims $500 million in damages and $20 million in punitive damages on behalf of the class.

[14] All TELUS Mobility contracts during the material time contained standard terms and conditions, including a clause requiring mediation and, failing resolution, arbitration of any disputes other than in respect of the collection of accounts by TELUS Mobility (the "Arbitration Agreement").

(2) Decision of the Motions Judge

[15] There were two motions before the motions judge: a motion to certify a class proceeding under s. 5 of the Class Proceedings Act, 1992, S.O. 1992, c. 6 (the "Class Proceedings Act"), and a motion by the appellants to stay the proceeding with respect to the claims of the non-consumer or business customers.

[16] The motions judge certified the class to include both consumers and non-consumers. In refusing to stay the claims of non-consumers, she applied s. 7(5) of the Arbitration Act and the decision of this court in Griffin, which she concluded had not been overtaken by the Supreme Court of Canada's decision in Seidel. She dealt with the issue raised in this appeal at paras. 82 to 91 of her decision. At paras. 88-89 she stated:

I cannot agree with TELUS' submission that Griffin was overruled by Seidel. In Seidel, the Supreme Court of Canada addressed only the issue of whether s. 172 of the BPCPA constituted a legislative override of the arbitration clause. There was no equivalent of s. 7(5) of the Arbitration Act, 1991 before the court. There was no issue of whether that statutory provision permits the court to allow claims to be litigated in a class action, notwithstanding the existence of an arbitration clause. The court was not called upon to analyze that issue.

In Ontario, s. 7(5) of the Arbitration Act, 1991 expressly grants the court the discretion to determine whether it is reasonable to separate the matters dealt with in an arbitration agreement from the other matters in the litigation. If the court does not consider it reasonable to separate them and refuses the partial stay, all matters may proceed in the litigation, regardless of the arbitration clause. Pursuant to Griffin, this discretion may be exercised to allow non-consumer claims (that are otherwise subject to an arbitration clause) to participate in a class action, where it is reasonable to do so.

[17] The motions judge concluded that the consumer claims represented 70 percent of the total number of claims, that the liability and damages issues for both consumer and non-consumers would be the same, that there was no group arbitration permitted for the non-consumer claims, and that separating the two proceedings could lead to inefficiency, risk inconsistent results and create a multiplicity of proceedings (at para. 90). As a result, she determined that it would be unreasonable to separate the consumer and non-consumer claims, and therefore she declined to stay the non-consumer claims.

[18] The Divisional Court dismissed a motion for leave to appeal the certification order: sub nom, Corless v. Bell Mobility Inc., 2015 ONSC 7682, [2015] O.J. No. 6661.

C. ISSUE ON APPEAL

[19] The appellants sought and were denied leave to have this appeal heard by a five-judge panel to reconsider this court's decision in Griffin.

[20] The issue on appeal is therefore restricted to whether the analysis in Griffin has been overtaken by the analysis mandated by Seidel. In particular, did the motions judge err in failing to apply Seidel, and err in deciding that, pursuant to Griffin, she retained the discretion to refuse a stay of the claims governed by the Arbitration Agreement? The appellants do not argue with how the discretion was exercised by the motions judge in the event this court finds that Griffin applies.

D. ANALYSIS

[21] In light of the significance of Griffin and Seidel to the resolution of this appeal, I will review these decisions, and the history leading up to them, in some detail before examining the parties' submissions and analyzing each of them in turn.

(1) Legal Context

(a) Cases Preceding Griffin and Seidel

[22] The relationship between arbitration clauses and class actions has been the subject of numerous legal proceedings. A review of cases leading up to Griffin and Seidel provides context for understanding what was at issue and what was decided in those cases.

[23] In 2004, a five-judge panel of the B.C. Court of Appeal addressed the issue of whether an arbitration clause in a contract was "inoperative" under the Commercial Arbitration Act, R.S.B.C. 1996, c. 55 (the "Commercial Arbitration Act") where an action challenging the contract was brought as an intended class proceeding: MacKinnon v. National Money Mart Co., 2004 BCCA 473, 203 B.C.A.C. 103 (C.A.) ("MacKinnon BCCA 2004"). A year later, this court dealt with a similar case where the defendant sought a stay of a proposed class action based on an arbitration clause: Smith v. National Money Mart Co. (2005), 258 D.L.R. (4th) 453 (C.A.), leave to appeal refused, [2005] S.C.C.A. No. 528 ("Smith ONCA 2005").

[24] Under both Ontario and B.C. statutes governing class proceedings, the court must certify a class proceeding if all the statutory criteria are met, including that the class proceeding would be the preferable procedure for the resolution of the common issues: Class Proceedings Act, s. 5; Class Proceedings Act, R.S.B.C. 1996, c. 50, s. 4. Both courts in MacKinnon BCCA 2004 and Smith ONCA 2005 held that whether a stay should be granted in favour of arbitration is determined as part of the preferable procedure analysis on a motion for certification. The courts reasoned that, if a class proceeding is considered the preferable procedure for resolving the dispute and the action is certified as a class action, the arbitration agreement falls within an exception to the stay mandated by the domestic arbitration statutes of Ontario and B.C. and is rendered "invalid" in Ontario and "inoperative" in B.C.: Arbitration Act, s. 7(2); Commercial Arbitration Act, s. 15.

[25] Two years later, the Supreme Court decided two cases from Québec: Dell Computer Corp. v. Union des consommateurs, 2007 SCC 34, [2007] 2 S.C.R. 801 ("Dell"), and Rogers Wireless Inc. v. Muroff, 2007 SCC 35, [2007] 2 S.C.R. 921 ("Rogers Wireless"). They dealt with the relationship between arbitration clauses and class actions under the Civil Code of Québec, S.Q. 1991, c. 64 and the Code of Civil Procedure, R.S.Q. c. C-25. The Supreme Court rejected attempts by consumers to pursue class actions in Québec in the face of arbitration clauses. Among other things, the Supreme Court emphasized that arbitration clauses confer substantive rights that are not affected by the procedural right to bring a claim by way of a class proceeding, and that a challenge to the arbitrator's jurisdiction or to the validity or applicability of the arbitration agreement should be resolved by the arbitrator, except where the challenge is based solely on a question of law.

[26] After Dell and Rogers Wireless, renewed motions for a stay were brought in the Smith and MacKinnon cases: Smith Estate v. National Money Mart Co. (2008), 57 C.P.C. (6th) 99 (S.C.) ("Smith Estate ONSC 2008"); MacKinnon v. National Money Mart Company, 2008 BCSC 710, 293 D.L.R. (4th) 478 ("MacKinnon BCSC 2008"). Both courts dismissed the motions, concluding that Dell and Rogers Wireless had limited application in Ontario and B.C. because the Supreme Court had dealt with Québec legislation and did not purport to interpret the legislation of other provinces. The courts also concluded that issue estoppel applied.

[27] A five-judge panel of this court dismissed an appeal from Smith Estate ONSC 2008 on the basis of issue estoppel and this court found it unnecessary to decide whether Dell and Rogers Wireless changed the law in Ontario: Smith Estate v. National Money Mart Co., 2008 ONCA 746, 92 O.R. (3d) 641, leave to appeal refused, [2008] S.C.C.A. No. 535 ("Smith Estate ONCA 2008").

[28] As will be discussed below, a five-judge panel of the B.C. Court of Appeal also dismissed the appeal of MacKinnon BCSC 2008 on the basis of issue estoppel, although the court concluded that Dell and Rogers Wireless changed the law in B.C. and effectively overruled its earlier decision in MacKinnon BCCA 2004: MacKinnon v. National Money Mart Co., 2009 BCCA 103, 304 D.L.R. (4th) 331 ("MacKinnon BCCA 2009"). This case was heard alongside the companion case of Seidel v. TELUS Communications Inc., 2009 BCCA 104, 267 B.C.A.C. 266.

(b) Griffin v. Dell Canada Inc.

(i) Griffin at First Instance

[29] Griffin was an appeal of two orders of Lax J., who was case managing a proposed class proceeding that arose from the sale of allegedly defective Dell notebook computers. The first order dismissed Dell's motion for a stay of proceedings based on the mandatory arbitration clause in Dell's standard contract, and certified the action as a class proceeding: (2009), 72 C.P.C. (6th) 158 (S.C.). The second order dismissed a motion brought by Dell for reconsideration of that decision: (2009), 76 C.P.C. (6th) 173 (S.C.), aff'd 2010 ONCA 29, 98 O.R. (3d) 481.

[30] Lax J. dismissed a motion for a stay of proceedings, following the approach in Smith ONCA 2005 and MacKinnon BCCA 2004. She rejected the argument that the landscape in Ontario had been altered by Dell and Rogers Wireless.

[31] Lax J. cited with approval Smith Estate ONSC 2008 and MacKinnon BCSC 2008. She concluded that since Dell and Rogers Wireless were decided on the basis of Québec law, the decisions did not apply to Ontario, and the appropriate course of action was to consider the validity of the arbitration clause in the context of the preferability analysis on the certification motion.

[32] Finally, Lax J. held that it was unnecessary to determine whether ss. 7 and 8 of the Consumer Protection Act applied to the claims in the proposed proceeding, where some purchasers had acquired their computers before the Act came into force on July 30, 2005. These sections preclude the mandatory application of arbitration clauses to consumer contracts and permit class proceedings notwithstanding any contractual provisions to the contrary.

[33] A motion for reconsideration was brought after a five-judge panel of the B.C. Court of Appeal released its companion decisions in MacKinnon BCCA 2009 and Seidel v. TELUS Communications Inc., 2009 BCCA 104, 267 B.C.A.C. 266, where the B.C. Court of Appeal concluded that Dell and Rogers Wireless changed the law in B.C. and effectively overruled earlier appellate authority on the relationship between arbitration and class actions.

[34] Lax J. dismissed the reconsideration motion after carefully considering the reasoning in the B.C. Court of Appeal cases and explaining why she preferred the analysis of Perell J. in Smith Estate ONSC 2008, which contrasted the legislation in Ontario with that in Québec. She maintained that Dell and Rogers Wireless do not apply in Ontario and that in this province whether or not to stay a class proceeding is to be determined within the context of the preferable procedure analysis in a certification motion.

(ii) Griffin in the Court of Appeal

[35] A five-judge panel of this court heard the appeal in Griffin because the appellant was challenging the continued authority of Smith ONCA 2005 in light of Dell and Rogers Wireless, and in particular this court's holding that the legality of an arbitration provision should be determined at the certification hearing and that it is premature to attempt to stay the action beforehand. However, this court did not decide this issue in Griffin, nor has the issue been decided in Ontario at the appellate level since that time.

[36] Rather, the appeal was determined based on the exercise of the court's discretion under s. 7(5) of the Arbitration Act in the context of an action in which both consumer claims and non-consumer claims were asserted. Section 7(5) of the Arbitration Act provides as follows:

The court may stay the proceeding with respect to the matters dealt with in the arbitration agreement and allow it to continue with respect to other matters if it finds that,

(a) the agreement deals with only some of the matters in respect of which the proceeding was commenced; and

(b) it is reasonable to separate the matters dealt with in the agreement from the other matters.

[37] Sharpe J.A., writing for a unanimous court, noted that, in the certification decision, a second representative plaintiff who was a consumer had been added and that s. 7 of the Consumer Protection Act was therefore engaged. Section 7 provides as follows:

7(1) The substantive and procedural rights given under this Act apply despite any agreement or waiver to the contrary.

(2) Without limiting the generality of subsection (1), any term or acknowledgment in a consumer agreement or a related agreement that requires or has the effect of requiring that disputes arising out of the consumer agreement be submitted to arbitration is invalid insofar as it prevents a consumer from exercising a right to commence an action in the Superior Court of Justice given under this Act.

(3) Despite subsections (1) and (2), after a dispute over which a consumer may commence an action in the Superior Court of Justice arises, the consumer, the supplier and any other person involved in the dispute may agree to resolve the dispute using any procedure that is available in law.

(4) A settlement or decision that results from the procedure agreed to under subsection (3) is as binding on the parties as such a settlement or decision would be if it were reached in respect of a dispute concerning an agreement to which this Act does not apply.

(5) Subsection 7(1) of the Arbitration Act, 1991 does not apply in respect of any proceeding to which subsection (2) applies unless, after the dispute arises, the consumer agrees to submit the dispute to arbitration.

[38] Sharpe J.A. concluded that s. 7 applied to the consumer claims because the alleged breaches occurred after July 30, 2005 when the Consumer Protection Act came into force. The result was that the arbitration clause would be invalid to prevent a court action in respect of consumer claims and therefore all consumer claims would proceed to litigation despite the existence of an arbitration agreement.

[39] Sharpe J.A. then turned to the question of whether a partial stay of the non-consumer claims should be granted. He noted that s. 7(5) of the Arbitration Act confers a discretion to grant a partial stay where an action involves some claims that are subject to arbitration and some that are not, and where it is reasonable to separate the matters dealt with in the agreement from the other matters. He applied the reasoning from a line of cases where claims by or against multiple parties were asserted, only some of which were subject to arbitration and a partial stay of proceedings had been refused: Radewych v. Brookfield Homes (Ontario) Ltd., [2007] O.J. No. 2483 (S.C.), aff'd 2007 ONCA 721, [2007] O.J. No. 4012, Johnston v. Mlakar (2006), 212 O.A.C. 79 (C.A.), Frambordeaux Developments Inc. v. Romandale Farms Ltd., [2007] O.J. No. 4917 (S.C.), and New Era Nutrition Inc. v. Balance Bar Co., 2004 ABCA 280, 357 A.R. 184 (involving a provision in Alberta's domestic arbitration statute identical to s. 7(5) of Ontario's Arbitration Act). Sharpe J.A. concluded that it would not be reasonable to separate the consumer claims from the non-consumer claims, as this would result in added cost and delay, as well as a multiplicity of proceedings.

[40] Sharpe J.A. also noted, at para. 52, that the motion judge's finding that claims could not be efficiently litigated through the arbitration process was "another factor supporting the conclusion that it would not be reasonable to grant a partial stay." He observed that there was considerable evidence in the record to support this finding, and no evidence from Dell "to indicate that the arbitration of [the] claims would be anything other than cost-prohibitive" (at para. 56). He noted that it was "clear beyond any serious doubt on this record that staying any claims advanced in the action [would] not result in any of the stayed claims being arbitrated," and that the real choice was "between clothing Dell with immunity from liability for defective goods sold to non-consumers and giving those purchasers the same day in court afforded to consumers by way of the class proceeding" (at para. 57).

[41] Finally, Sharpe J.A. concluded that it was unnecessary to decide whether Dell and Rogers Wireless applied in Ontario and had overruled Smith ONCA 2005. He stated, at para. 64:

As I have concluded that the [Consumer Protection Act] applies to the claim of the representative plaintiff Andrews and that a partial stay of the claim of the representative plaintiff Griffin should be refused, it is not necessary for me to decide whether, apart from the [Consumer Protection Act], Dell would have applied in Ontario… To the extent that the application of Dell does remain a live issue, we are likely to receive further guidance from the Supreme Court of Canada when it decides the appeal in [Seidel].

[42] Accordingly, in Griffin, it was unnecessary for this court to revisit earlier decisions that dealt with the issue of whether a certification motion was the proper context to determine whether a claim should be stayed in favour of arbitration. This was unnecessary because of the Ontario legislation: the combined effect of the recently enacted provisions of the Consumer Protection Act, which provided that mandatory arbitration did not apply to consumer claims, and the discretion of the court to grant a partial stay of proceedings where the action involves some claims that are subject to arbitration and some claims that are not under s. 7(5) of the Arbitration Act.

[43] The Supreme Court refused leave to appeal this court's decision in Griffin: [2010] S.C.C.A. No. 75.

(c) Seidel v. TELUS Communications Inc.

[44] Meanwhile, in Seidel the plaintiff sought to certify a class action against TELUS for alleged unfair billing practices (in that case, charging customers for the time it took to connect a call). The action included claims by consumers and business customers who had signed the same standard contract containing a mandatory arbitration clause. Various claims were asserted in the action, including some invoking rights, benefits or protections under the BPCPA. The defendant moved for a stay of proceedings based on the arbitration clause. The question was whether the arbitration clause was "inoperative", which was a ground for refusing to stay court proceedings under s. 15 of the B.C. Commercial Arbitration Act.

(i) Seidel at First Instance

[45] When the matter came before the B.C. Supreme Court, the underlying issue was characterized as whether Dell and Rogers Wireless had overtaken MacKinnon BCCA 2004: Seidel v. Telus Communications Inc., 2008 BCSC 933, 295 D.L.R. (4th) 511. The defendant had applied for a stay on the basis that Dell and Rogers Wireless required that an arbitrator determine the applicability of an arbitration clause prior to a certification hearing. After a detailed comparison of the statutory context in B.C. with that in Québec, and adopting the analysis of Perell J. in Smith Estate ONSC 2008, the court concluded that Dell and Rogers Wireless had not changed the law in B.C.

(ii) Seidel in the B.C. Court of Appeal

[46] As noted above, Seidel went to a five-judge panel of the B.C. Court of Appeal and was argued together with an appeal of MacKinnon BCSC 2008.

[47] The court compared the B.C. and Québec arbitrations and class proceedings legislation, and concluded that Dell and Rogers Wireless had overruled its earlier decision in MacKinnon BCCA 2004. In Seidel, the court also observed that a class action is a procedural vehicle that does not modify the substantive rights created by an arbitration clause.

[48] The court rejected the argument that the arbitration clause was inoperative because of s. 3 of the BPCPA. Section 3 renders void any waiver or release of any rights, benefits or protections under the BPCPA, including the statutory remedy contained in s. 172 of the BPCPA, which allows a person other than a supplier to bring an action in the Supreme Court to enforce the statute's consumer protection standards. The court concluded that ss. 3 and 172 of the BPCPA did not exclude arbitral jurisdiction and did not render the arbitration agreement between Ms. Seidel and TELUS inoperative.

[49] The court also determined that the action should be stayed in favour of an arbitrator determining at first instance which claims would be subject to arbitration and which, if any, would not.

(iii) Seidel in the Supreme Court of Canada

[50] The majority opinion (with four judges concurring) was written by Binnie J. In contrast to how the matter had been addressed at first instance and in the Court of Appeal, he approached the matter largely as a question of statutory interpretation. Binnie J. stated, at para. 2:

The choice to restrict or not to restrict arbitration clauses in consumer contracts is a matter for the legislature. Absent legislative intervention, the courts will generally give effect to the terms of a commercial contract freely entered into, even a contract of adhesion, including an arbitration clause. The important question raised by this appeal, however, is whether the BPCPA manifests a legislative intent to intervene in the marketplace to relieve consumers of their contractual commitment to "private and confidential" mediation/arbitration and, if so, under what circumstances. [Emphasis added.]

[51] The majority found that an arbitration clause will prevail "absent legislative intervention" and that the provisions of the BPCPA demonstrated an intent to intervene to relieve consumers of their arbitration agreements. The court concluded that the combined effect of ss. 3 and 172 of the BPCPA was to allow claims asserted under s. 172 to proceed in court despite an arbitration clause. The court came to this conclusion in part because the features of private arbitration – confidentiality, lack of precedential value and the avoidance of publicity – are incompatible with the legislature's objectives and undermine the effectiveness of the remedy set out at s. 172 (at para. 38).

[52] Binnie J. held that, to the extent that Ms. Seidel's claims invoked the remedies under the BPCPA, including declaratory and injunctive relief, those claims must be allowed to proceed in the superior court. However, the claims that were not covered by the BPCPA, including common law claims, continued to be governed by the arbitration clause. He stated at para. 7:

Private arbitral justice, because of its contractual origins, is necessarily limited. As the BPCPA recognizes, some types of relief can only be made available from a superior court. Accordingly, to the extent Ms. Seidel's complaints shelter under s. 172 of the BPCPA (and only to that extent), they cannot be waived by an arbitration clause and her court action may continue, in my opinion. As to her alternative complaints, whether under other sections of the BPCPA, the now repealed Trade Practice Act, or at common law, the TELUS arbitration clause is valid and enforceable. As to those claims, her court action should be stayed pursuant to s. 15 of the Commercial Arbitration Act. [Citations omitted.]

[53] The majority of the court accepted that bifurcated proceedings could result from its order, with the s. 172 claims proceeding in a court action and the other claims, if pursued, going to arbitration. Binnie J. stated that such an outcome was "consistent with the legislative choice made by British Columbia in drawing the boundaries of s. 172 as narrowly as it did" (at para. 50). It was only to the extent that the plaintiff could bring her case within s. 172 of the BPCPA that the "legislative override" in s. 3 would "extricate her from the arbitration clause to which she agreed in the TELUS contract" (at para. 31).

[54] Finally, Binnie J. observed that, while the precise outcome of Dell and Rogers Wireless was dictated by the "intricacies of the Civil Code of Québec" (at para. 41), the "relevant teaching" of those cases "is simply that whether and to what extent the parties' freedom to arbitrate is limited or curtailed by legislation will depend on a close examination of the law of the forum where the irate customers have commenced their court case. Dell and Rogers Wireless stand… for the enforcement of arbitration clauses absent legislative language to the contrary" (at para. 42; emphasis in original).

(2) Analysis of the Parties' Arguments

[55] As noted above, there is one issue on this appeal – whether this court's analysis in Griffin has been overtaken by the Supreme Court's analysis in Seidel. The appellants make three main arguments in support of their position that Seidel applies and that, following Seidel, the non-consumer claims should be stayed. I will address each argument in turn.

(a) Seidel Did Not Overtake Griffin

[56] The appellants assert that Griffin has been overtaken by Seidel in part because of the different attitudes toward arbitration expressed in each case, which is reflected in their different outcomes – the bifurcation of consumer and non-consumer claims in Seidel and not in Griffin. They say Seidel affirms the legitimacy of arbitration and requires courts to give effect to arbitration clauses, even in contracts of adhesion, and even if this leads to a bifurcation of proceedings, unless the legislature provides otherwise. They argue that neither s. 7 of the Consumer Protection Act (which relates only to consumer claims) nor s. 7(5) of the Arbitration Act provides a clear "legislative override", such that the non-consumer claims escape the Arbitration Agreement.

[57] The respondent, on the other hand, asserts that Seidel is distinguishable as it was decided in the context of B.C.'s arbitration and consumer protection legislation. There is no equivalent in B.C. to s. 7(5) of Ontario's Arbitration Act. As such, Seidel does not overtake or alter the authority of Griffin.

[58] The respondent also argues that, applying the test articulated in Seidel, the legislative intent to intervene in consensual arbitration is found both in the Consumer Protection Act in respect of consumer claims, and in the discretion provided under the Arbitration Act that permits the court to refuse a stay of proceedings in favour of arbitration in specified circumstances, including under s. 7(5) where some claims are covered by an arbitration agreement, and it would be unreasonable to separate the matters covered by the arbitration clause from those which are not.

[59] I agree that Seidel has not overtaken or altered the authority of Griffin, as Griffin is consistent in principle with Seidel but was decided in a different legislative context.

[60] The outcomes in the two cases were driven, not by competing attitudes toward arbitration as a dispute resolution mechanism, but by the specific legislative framework in each jurisdiction respecting arbitration and consumer protection.

[61] Seidel recognizes the value and importance of private arbitration for dispute resolution, and that arbitration clauses will generally be upheld. As I have noted, Binnie J. specifically stated at para. 2 that courts will generally give effect to contracts freely entered into by the parties, even a contract of adhesion that includes an arbitration clause.

[62] Griffin does not contradict the general principle that contractual arbitration clauses presumptively will be enforced. See, for example: Ontario Hydro v. Denison Mines Ltd., 1992 CarswellOnt 3497 (W.L. Can.), [1992] O.J. No. 2948 (Gen. Div.), at para. 9, Inforica Inc. v. C.G.I. Information Systems and Management Consultants Inc., 2009 ONCA 642, 97 O.R. (3d) 161, at para. 14, and Haas v. Gunasekaram, 2016 ONCA 744, [2016] O.J. No. 5286, at paras. 10-12. The decision in Griffin, to permit all claims to proceed in court together, was not premised on a disregard for arbitration as a viable dispute resolution mechanism but on the application of the discretion afforded by s. 7(5) of the Arbitration Act and the conclusion that a partial stay of non-consumer claims would be unreasonable where a majority of claims asserted in the action were non-arbitrable consumer claims and where the motion judge found that the non-consumer claims could not be efficiently litigated through the arbitration process.

[63] Accepting the primacy of arbitration over judicial proceedings where the parties have a contractual agreement to arbitrate does not alter the Griffin analysis or the disposition of the present appeal. Rather, both Seidel and Griffin accept that arbitration agreements will generally be enforced, that any restriction of the parties' freedom to arbitrate must be found in the legislation of the jurisdiction, and that the ability of the court to interfere with this freedom depends on the legislative context.

[64] In effect, the appellants seek to apply the result in Seidel – a bifurcation of proceedings – while ignoring the material differences between the Ontario and B.C. consumer protection and domestic arbitration legislation. It is to that legislation that I now turn.

(i) Consumer Protection Legislation

[65] First, there are material differences in the consumer protection legislation of Ontario and B.C. respecting court proceedings. Arbitration clauses in consumer contracts have been unenforceable in Ontario since the Consumer Protection Act came into force on July 30, 2005. Section 7 is an express provision that exempts consumer contracts from mandatory arbitration. In Seidel terms, this constitutes an express legislative override of the parties' freedom to choose arbitration.

[66] There is no equivalent to s. 7 in the BPCPA. Rather, s. 172 of the BPCPA, which provides for a cause of action that can be asserted in the superior court, and s. 3, which prohibits contracting out of statutory rights, were interpreted together in Seidel as providing a legislative override of the parties' freedom to choose arbitration.

[67] Binnie J. highlighted the fact that his decision was firmly based on the specific provisions of B.C. law. He noted that, in enacting s. 172 of the BPCPA, B.C.'s legislature sought to ensure only that certain claims proceed in the court system and that, in contrast, the legislatures of Ontario and Québec "decided to ban arbitration of consumer claims altogether" through consumer protection legislation. He explained that "it is incumbent on the courts to give effect to that legislative choice" (at para. 40).

(ii) Domestic Arbitration Legislation

[68] The second important difference between the law in B.C. and Ontario is in their domestic arbitration legislation, and in particular, the legislature's tolerance for court intervention in private contractual arbitrations.

[69] B.C.'s Commercial Arbitration Act provides for a very limited right of the courts to intervene in arbitration. Section 15 restricts intervention to circumstances in which the arbitration agreement is "void, inoperative or incapable of being performed". This section was changed two years after the B.C. legislation was enacted, to reflect the wording of article 8 of the UNCITRAL Model Law on International Commercial Arbitration, U.N. Doc. A/40/17 (1985), Ann. 1. Ontario, by contrast, only adopted the UNCITRAL model law for international arbitrations through the enactment of the International Commercial Arbitration Act, 2017, S.O. 2017, c. 2, Sched. 5, and its predecessor R.S.O. 1990, c. I.9.

[70] Ontario's Arbitration Act, which governs domestic arbitrations, provides broader authority for the court's intervention in arbitrations than legislation enacted based on the UNCITRAL model law. Ontario's legislation is based on a model law created by the Uniform Law Conference of Canada ("ULCC") in 1990. Section 7 of the Uniform Arbitration Act (1990) deals with stays of court proceedings.

[71] While s. 7(1) of Ontario's Arbitration Act provides that a court "shall" stay a court proceeding commenced by a party to an arbitration agreement on the motion of another party to the agreement, this is subject to the exceptions set out in s. 7(2). The exceptions confer a discretion on the court to intervene: (1) where a party entered into the agreement while under a legal incapacity, (2) where the arbitration agreement is invalid, (3) where the subject-matter of the dispute is not capable of being the subject of arbitration under Ontario law, (4) where the motion was brought with undue delay, and (5) where the matter is a proper one for default or summary judgment. The grounds upon which a court may intervene in domestic arbitrations in Ontario by refusing to stay a court proceeding are broader than the grounds for intervention provided for under s. 15 of the B.C. legislation. Ontario's legislation permits the court to consider the conduct of a defendant who fails to move promptly to stay a court proceeding and to consider the substance of the claim to determine whether default or summary judgment would be appropriate.

[72] Section 7(5) of the Arbitration Act is an extension of the court's discretion and operates where an action has been commenced and the arbitration agreement covers some, but not all, claims. In such a case, the court may grant a partial stay, but only where it is "reasonable to separate the matters dealt with in the agreement from the other matters." Section 7(5) anticipates that when an action contains claims that are subject to an arbitration agreement and claims that are not, bifurcated proceedings will result when it is reasonable to impose a partial stay. When a partial stay is not reasonable, the proceedings will not be bifurcated.

[73] In Ontario, accordingly, courts have the discretion to refuse to enforce an arbitration clause that covers some claims in an action when other claims are not subject to domestic arbitration. It is this legislative choice that drives the analysis. The bifurcation of proceedings in Seidel resulted from B.C.'s statutory scheme and was described as "an outcome…consistent with the legislative choice made by British Columbia in drawing the boundaries of s. 172 as narrowly as it did": Seidel, at para. 50. One might add that the bifurcation of proceedings in Seidel also resulted from the absence of a discretion similar to that granted to courts pursuant to s. 7(5) of the Arbitration Act in B.C.'s arbitration legislation.

[74] A recent case in Manitoba considered whether Seidel requires a different approach to the question of "reasonableness" in stay applications in class proceedings where only some claims are arbitrable: Briones v. National Money Mart, 2013 MBQB 168, 295 Man. R. (2d) 101. Briones involved a proposed class action that included consumer protection claims under The Consumer Protection Act, C.C.S.M., c. C200, and The Unconscionable Transactions Act, C.C.S.M., c. U20, that the court interpreted as non-arbitrable, and other claims, which were subject to the arbitration clause. The defendant applied for a partial stay of proceedings under s. 7(5) of The Arbitration Act, C.C.S.M., c. A120 (the equivalent to Ontario's s. 7(5)), asserting that, following Seidel and its express approval of bifurcated proceedings, it would be "reasonable" to grant a partial stay.

[75] The Court of Queen's Bench denied a partial stay on the basis that, having regard to the overlapping matters that could not be reasonably separated, the undesirability and inefficiency of multiple proceedings, and the risk of inconsistent results, it would not be reasonable to separate the matters subject to arbitration from other matters in the litigation. The court expressly referred to and followed the approach in Griffin. The court concluded that "there was no issue in Seidel as to whether a partial stay should be granted as the [B.C. legislation] did not have a provision equivalent to s. 7(5) of the Arbitration Acts of Manitoba, Alberta, and Ontario" (at para. 62). This decision was upheld by the Manitoba Court of Appeal as a reasonable exercise of the motion judge's discretion: 2014 MBCA 57, 306 Man. R. (2d) 129, at para. 42, leave to appeal refused, [2014] SCCA No. 355.

[76] I agree with the reasoning in Briones and the position of the respondent in this appeal. The differences between the legislation of Ontario and B.C. account for the different approaches in Griffin and Seidel to the bifurcation of proceedings where some claims are subject to an arbitration agreement and some are not. In Ontario, the legislature chose to exempt consumer claims from mandatory arbitration and, in the domestic context, to provide the court with the discretion to determine whether it is reasonable to separate matters subject to an arbitration clause from other matters in the litigation. The combination of these legislative provisions, which differ from those in B.C., drove the result in Griffin as well as the result in this case.

(b) No Ousting of the Court's Jurisdiction and No Issue of Substantive Rights

[77] The appellants also rely on Seidel to advance what was one of their central arguments before this court. They contend that Seidel confirms that the procedural device of a class proceeding does not alter the parties' substantive right to arbitrate and does not give the court jurisdiction over claims required to be submitted to arbitration. Further, the appellants argue that, in light of Seidel, s. 7(5) of the Arbitration Act cannot be read as "conferring jurisdiction" over claims the parties have agreed to submit to arbitration and that such claims are subject to the mandatory stay provision in s. 7(1).

[78] In support of their jurisdiction argument, the appellants point to the Supreme Court's decision in Bisaillon v. Concordia University, 2006 SCC 19, [2006] 1 S.C.R. 666, where a class action commenced by a unionized employee was dismissed for lack of jurisdiction. The court found the procedural vehicle of a class proceeding to be incompatible with the exclusive jurisdiction of grievance arbitrators over the dispute in question. LeBel J., for a unanimous court, described the class action as "a procedural vehicle whose use neither modifies nor creates substantive rights" (at para. 17). He stated, at para. 22:

[T]he class action procedure cannot have the effect of conferring jurisdiction on the Superior Court over a group of cases that would otherwise fall within the subject-matter jurisdiction of another court or tribunal. Except as provided for by law, this procedure does not alter the jurisdiction of courts and tribunals. Nor does it create new substantive rights.

[79] Comments similar to these were made by the Supreme Court in Dell (at paras. 105-108) and in Rogers Wireless (at paras. 1, 11-13, 20), and were echoed in the dissenting opinion in Seidel (at paras. 65-69 and 136-138).

[80] The respondent asserts that, in Ontario, arbitration clauses do not oust the court's jurisdiction. Rather, the court will defer to an arbitration agreement, subject to the exercise of its powers under the Arbitration Act.

[81] In my view, the appellants misinterpret the majority decision in Seidel and ignore the main teaching from that decision – that the enforceability of an arbitration clause depends on the legislative context and whether the legislature intended to limit the freedom to arbitrate.

[82] The majority in Seidel did not characterize the issue as one of jurisdiction and did not speak of procedural versus substantive rights because these distinctions were not relevant to its analysis. Rather, the issue was recast as one of statutory interpretation.

[83] Binnie J. specifically rejected the suggestion that Dell and Rogers Wireless apply outside of Québec, noting that these cases were decided under "[t]he intricacies of the Civil Code of Québec" (at para. 41). Indeed, article 2638 of the Civil Code of Québec provides: "An arbitration agreement is a contract by which the parties undertake to submit a present or future dispute to the decision of one or more arbitrators, to the exclusion of the courts" (emphasis added).

[84] As the dissent in Seidel observed, unlike Québec's legislation, B.C.'s Commercial Arbitration Act does not contain a provision that "ousts the jurisdiction of the courts" (at para. 111).

[85] Similarly, there is nothing in Ontario's Arbitration Act, which governs domestic arbitrations, to suggest that an arbitration clause removes or ousts the court's jurisdiction over a dispute. Perell J. observed in Smith Estate ONSC 2008 that "as a matter of doctrine, whatever the situation may be in Québec… the court's jurisdiction in Ontario is not ousted by the presence of an arbitration agreement, but rather the court's jurisdiction is governed by its own jurisdiction and by s. 7 of the Arbitration Act, 1991" (at para. 257).

[86] In my view, it is sufficient for the purpose of this appeal to note that injecting the question of jurisdiction into the discussion of whether a partial stay of proceedings can be granted under Ontario's Arbitration Act is both unnecessary and misleading.

[87] As for the appellants' argument that the contractual right to arbitrate is a "substantive right" that is unaffected by the "procedural vehicle" of a class proceeding, this issue simply does not arise in the present case nor was it the basis on which the Supreme Court of Canada decided Seidel. While this distinction informed the decisions in Dell, Rogers Wireless and MacKinnon BCCA 2009, as well as Seidel in the courts below, the majority in Seidel did not address the issue in this way.

[88] The class proceeding context did not inform the preliminary question of whether Ms. Seidel's claims should be stayed. While the question of a stay in favour of arbitration arose in the context of class proceedings, Binnie J. specifically stated that the appeal only concerned Ms. Seidel's individual action and that "[w]hether or not the s. 172 claims should be certified as a class action is a matter that will have to be determined by the courts of British Columbia, which have yet to address the issue" (at para. 8). Accordingly, the distinction between substantive and procedural rights did not arise in and was irrelevant to the analysis of the majority of the court in Seidel.

[89] Similarly in Griffin, this court determined the issues without addressing the effect of the procedural device of a class proceeding on the substantive rights conferred by an arbitration clause. Instead, because the action involved both consumer claims (which are not subject to mandatory arbitration pursuant to s. 7 of the Consumer Protection Act) and non-consumer claims, the issue was whether s. 7(5) of the Arbitration Act grants a court the discretion to refuse a partial stay of non-consumer claims so that these claims may be adjudicated alongside those of consumers.

[90] I therefore reject the appellants' submission that the Arbitration Agreement ousts the jurisdiction of the court, the suggestion that one must look for a specific provision to confer jurisdiction before the Arbitration Agreement will not be given effect, and the argument that the substantive right to arbitrate must be given primacy over the procedural vehicle of a class proceeding. The question of whether the substantive right to arbitrate must be given effect is governed by the domestic legislation of Ontario and cannot be determined in a legislative vacuum as the appellants would have us do. Under the Ontario Arbitration Act, jurisdiction is specifically retained in the situations covered by s. 7(5) and the present situation is governed by this provision.

(c) The Conflation of the Stay Issue and the Preferability Analysis

[91] Finally, the appellants contend that the motions judge erred in deciding the issue of whether a stay should be granted in the context of a preferability analysis (whether a class proceeding would be the "preferable procedure" under s. 5(1)(d) of the Class Proceedings Act), and that this approach has been overtaken by Seidel and other authorities. They say that, having decided that a class proceeding was the "preferable procedure", the motions judge then refused to enforce the arbitration clause.

[92] The respondent contends that, whether or not Seidel should be interpreted as overturning prior authorities such as Smith ONCA 2005, the motions judge did not deal with the stay issue as part of the preferability analysis on certification and therefore did not err in this regard.

[93] In my view, the appellants' argument mischaracterizes the motions judge's decision in this case.

[94] As I have already noted, the earlier decision of this court in Smith ONCA 2005 concluded that the issue of the enforceability of an arbitration clause should be determined only after the preferability analysis in a class proceeding certification motion. The subsequent cases of Dell and Rogers Wireless called that approach into question. In Griffin, the judge at first instance adopted the approach of this court in Smith ONCA 2005, however, as Sharpe J.A. noted on appeal, it was unnecessary to determine the effect of Dell on cases in Ontario due to the Consumer Protection Act. By outlawing mandatory arbitration clauses in consumer agreements, the legislature in Ontario excluded the application of the reasoning in Dell to agreements covered by the Consumer Protection Act: Griffin, at para. 64.

[95] Similarly, the motions judge in this case, although dealing with two motions – one to stay and the other to certify the class proceeding – did not approach the issue of whether to grant a stay by undertaking a preferability analysis, as the appellants assert. This is notwithstanding that the motions judge's reasons set out her analysis and conclusions on the stay motion in a section under the heading "Preferable Procedure." The issue before her was the same as the issue before this court in Griffin – because of the combined effect of the Consumer Protection Act and the Arbitration Act, she had to determine whether it was reasonable to separate the proceedings. Neither the motions judge in this case, nor this court in Griffin, refused a stay of proceedings of arbitrable claims based on the conclusion that a class action would be a "preferable procedure".

[96] In the present appeal, and in this court's decision in Griffin, the question of the enforceability of the arbitration agreement was determined without resort to the Class Proceedings Act. As such, the appellants are wrong when they suggest that the motions judge erred in determining the issue as part of the preferability analysis. While this was the approach endorsed in Griffin and Seidel at first instance, it is not how the matter was determined on appeal in Griffin, in the Supreme Court in Seidel or by the motions judge in this case.

E. CONCLUSION AND DISPOSITION

[97] It bears repeating that the sole issue in this appeal is whether the Griffin analysis and framework for determining whether a partial stay of proceedings should be granted has been overtaken by a new and different analysis in Seidel. There was no challenge to the exercise of the motions judge's discretion in refusing a partial stay and, in particular, her assessment on the facts of this case, of whether it would be "reasonable" to bifurcate the proceedings.

[98] For the foregoing reasons I conclude that the motions judge did not err in rejecting the argument that Griffin has been overtaken by Seidel and that, applying Seidel, a partial stay ought to have been granted. As such, I would uphold the motions judge's decision to refuse a stay.

[99] I would therefore dismiss the appeal. I would award costs to the respondents fixed at $30,000, the amount agreed between the parties, inclusive of HST and disbursements.

K. van Rensburg J.A.

I agree. K.M. Weiler J.A.

R.A. Blair J.A. (Concurring in the result):

[100] I have had the opportunity to read the careful and thorough reasons of my colleague, van Rensburg J.A. I agree with her that the appeal must be dismissed, but would do so on a more restricted basis.

[101] First, I agree that this Court's decision in Griffin v. Dell Canada Inc. has not been overtaken, or effectively overruled, by the Supreme Court of Canada's later decision in Seidel v. TELUS Communications Inc.. Secondly, while I have reservations about the correctness of the decision in Griffin as it relates to a partial stay of the non-consumer claims, it is binding on us and dispositive of the issue.

Seidel and Griffin

[102] Seidel has not overtaken Griffin because it did not determine the same issues as those raised in Griffin. As decided by the majority in the Supreme Court of Canada, Seidel concerned only the claim of Ms. Seidel as an individual consumer plaintiff. The majority confined its analysis to a determination of whether the British Columbia legislative scheme operated as an override to her individual arbitration clause, and decided that it did. The majority did not deal with the interface between consumer and non-consumer claims that are subject to different arbitration agreements, nor did it address the complication of the class action nature of her claim. Griffin dealt squarely with those issues, and decided that s. 7(5) of the Arbitration Act 1991, S.O. 1991, c. 17 provided the court with a discretion in such cases to refuse to grant the mandatory stay of a proceeding that would otherwise flow from s. 7(1) of the Act. That decision is binding and dispositive.

Griffin

[103] In the circumstances, this is not the place to address in detail the reasons why, in my respectful view, Griffin may not be correctly decided insofar as it relates to a partial stay of the non-consumer claims. Suffice it to say, there are questions remaining that may warrant further consideration at another time and that were not fully addressed in that case. Two come to mind, for example (one more specific in nature, and the other, more general).

[104] First, as a matter of statutory interpretation, may the words "other matters" in s. 7(5) of the Arbitration Act 1991 – when considered in the context of s. 7 as a whole and the purposes of that Act – be read in a way that cross-pollinates the partial-refusal-to-stay power from a single arbitration agreement context to other arbitration agreements involving different parties and containing arbitration clauses that are otherwise valid and enforceable? Or do "other matters" refer to other matters arising between the same contracting parties but that are not covered by the arbitration agreement between them? One of the purposes of the Arbitration Act 1991 is to encourage parties to resolve their disputes through private arbitration proceedings and to support their agreements to do so. Section 7 accomplishes the latter by providing for a mandatory stay of court proceedings unless one of the enumerated exceptions applies (which is not the case here) and, having regard to its overall wording, appears to address circumstances relating to a single arbitration agreement, and not the interconnection between a number of such agreements involving different parties. This would work against the approach taken in Griffin, but was not considered in that case.

[105] Secondly, and more generally, ought litigants be entitled to sidestep what would otherwise be substantive and statutory impediments to proceeding in court with an arbitral claim by the simple expedient of adding consumer claims (which cannot be stayed, by virtue of the Consumer Protection Act, 2002, S.O. 2002, c. 30) to non-consumer claims (which generally are subject to a mandatory stay) and wrapping all claims in the cloak of a class proceeding? Put another way, may the Class Proceedings Act, 1992, S.O. 1992, c. 6 (a procedural rights statute) be used to override the provisions of the Arbitration Act 1991 affording contractual parties the right to agree to binding arbitration (a substantive right)? As my colleague notes, courts have repeatedly said class action proceedings do not alter the jurisdiction of courts or tribunals or create new substantive rights: see Bisaillon v. Concordia University, 2006 SCC 19, [2006] 1 S.C.R. 666, at para. 22; Dell Computer Corp. v. Union des consommateurs, 2007 SCC 34, 284 D.L.R. (4th) 577, at paras. 105-108; Rogers Wireless Inc. v. Muroff, 2007 SCC 35, 284 D.L.R. (4th) 675, at paras. 1, 11-13, and 20; Seidel, at paras. 65-69, 89, 96-119 and 135-138, per LeBel and Deschamps JJ. in dissent. They have not said this principle may be overridden by resort to the preferable proceedings provisions under the Class Proceedings Act.

[106] I flag these questions only to explain in a general way why I have reservations about the correctness of this Court's decision in Griffin. Whatever the answers to them may be, they were not addressed by the Griffin court, which appears to have approached the problem more from the perspective of whether the class action was a preferable approach in order to avoid a multiplicity of proceedings or, in some cases, to avoid the impracticality of no proceedings at all. While those are very legitimate concerns, it may be that a response to the foregoing questions is necessary before the court can reach the stage where class proceeding principles come into play.

Resolution

[107] The Griffin decision is binding, however, and has not been affected in terms of that binding effect by Seidel.

[108] I agree, therefore, that the appeal must be dismissed.

R.A. Blair J.A.

Released: May 31, 2017

Appendix A

Consumer Protection Act, 2002, S.O. 2002, c. 30, Sched. A

7 (1) The substantive and procedural rights given under this Act apply despite any agreement or waiver to the contrary.

(2) Without limiting the generality of subsection (1), any term or acknowledgment in a consumer agreement or a related agreement that requires or has the effect of requiring that disputes arising out of the consumer agreement be submitted to arbitration is invalid insofar as it prevents a consumer from exercising a right to commence an action in the Superior Court of Justice given under this Act.

(3) Despite subsections (1) and (2), after a dispute over which a consumer may commence an action in the Superior Court of Justice arises, the consumer, the supplier and any other person involved in the dispute may agree to resolve the dispute using any procedure that is available in law.

(4) A settlement or decision that results from the procedure agreed to under subsection (3) is as binding on the parties as such a settlement or decision would be if it were reached in respect of a dispute concerning an agreement to which this Act does not apply. Subsection 7(1) of the Arbitration Act, 1991 does not apply in respect of any proceeding to which subsection (2) applies unless, after the dispute arises, the consumer agrees to submit the dispute to arbitration.

8 (1) A consumer may commence a proceeding on behalf of members of a class under the Class Proceedings Act, 1992 or may become a member of a class in such a proceeding in respect of a dispute arising out of a consumer agreement despite any term or acknowledgment in the consumer agreement or a related agreement that purports to prevent or has the effect of preventing the consumer from commencing or becoming a member of a class proceeding.

(2) After a dispute that may result in a class proceeding arises, the consumer, the supplier and any other person involved in it may agree to resolve the dispute using any procedure that is available in law.

(3) A settlement or decision that results from the procedure agreed to under subsection (2) is as binding on the parties as such a settlement or decision would be if it were reached in respect of a dispute concerning an agreement to which this Act does not apply.

(4) Subsection 7(1) of the Arbitration Act, 1991 does not apply in respect of any proceeding to which subsection (1) applies unless, after the dispute arises, the consumer agrees to submit the dispute to arbitration.

Arbitration Act, 1991, S.O. 1991, c. 17

6 No court shall intervene in matters governed by this Act, except for the following purposes, in accordance with this Act:

1. To assist the conducting of arbitrations.
2. To ensure that arbitrations are conducted in accordance with arbitration agreements.
3. To prevent unequal or unfair treatment of parties to arbitration agreements.
4. To enforce awards.

7 (1) If a party to an arbitration agreement commences a proceeding in respect of a matter to be submitted to arbitration under the agreement, the court in which the proceeding is commenced shall, on the motion of another party to the arbitration agreement, stay the proceeding.

(2) However, the court may refuse to stay the proceeding in any of the following cases:

1. A party entered into the arbitration agreement while under a legal incapacity.
2. The arbitration agreement is invalid.
3. The subject-matter of the dispute is not capable of being the subject of arbitration under Ontario law.
4. The motion was brought with undue delay.
5. The matter is a proper one for default or summary judgment.

(3) An arbitration of the dispute may be commenced and continued while the motion is before the court.

(4) If the court refuses to stay the proceeding,

(a) no arbitration of the dispute shall be commenced; and

(b) an arbitration that has been commenced shall not be continued, and anything done in connection with the arbitration before the court made its decision is without effect.

(5) The court may stay the proceeding with respect to the matters dealt with in the arbitration agreement and allow it to continue with respect to other matters if it finds that,

(a) the agreement deals with only some of the matters in respect of which the proceeding was commenced; and

(b) it is reasonable to separate the matters dealt with in the agreement from the other matters.

(6) There is no appeal from the court's decision.

Class Proceedings Act, 1992, S.O. 1992, c. 6

5 (1) The court shall certify a class proceeding on a motion under section 2, 3 or 4 if,

(a) the pleadings or the notice of application discloses a cause of action;

(b) there is an identifiable class of two or more persons that would be represented by the representative plaintiff or defendant;

(c) the claims or defences of the class members raise common issues;

(d) a class proceeding would be the preferable procedure for the resolution of the common issues; and

(e) there is a representative plaintiff or defendant who,

(i) would fairly and adequately represent the interests of the class,

(ii) has produced a plan for the proceeding that sets out a workable method of advancing the proceeding on behalf of the class and of notifying class members of the proceeding, and

(iii) does not have, on the common issues for the class, an interest in conflict with the interests of other class members.

Business Practices and Consumer Protection Act, S.B.C. 2004, c. 2

3 Any waiver or release by a person of the person's rights, benefits or protections under this Act is void except to the extent that the waiver or release is expressly permitted by this Act.

172 (1) The director or a person other than a supplier, whether or not the person bringing the action has a special interest or any interest under this Act or is affected by a consumer transaction that gives rise to the action, may bring an action in Supreme Court for one or both of the following:

(a) a declaration that an act or practice engaged in or about to be engaged in by a supplier in respect of a consumer transaction contravenes this Act or the regulations;

(b) an interim or permanent injunction restraining a supplier from contravening this Act or the regulations.

Commercial Arbitration Act, R.S.B.C. 1996, c. 55

15 (1) If a party to an arbitration agreement commences legal proceedings in a court against another party to the agreement in respect of a matter agreed to be submitted to arbitration, a party to the legal proceedings may apply, before filing a response to civil claim or a response to family claim or taking any other step in the proceedings, to that court to stay the legal proceedings.

(2) In an application under subsection (1), the court must make an order staying the legal proceedings unless it determines that the arbitration agreement is void, inoperative or incapable of being performed.

(3) An arbitration may be commenced or continued and an arbitral award made even though an application has been brought under subsection (1) and the issue is pending before the court.

(4) It is not incompatible with an arbitration agreement for a party to request from the Supreme Court, before or during arbitral proceedings, an interim measure of protection and for the court to grant that measure.