Supreme Court of Canada

Appeal Heard: November 6, 2018 Judgment Rendered: April 4, 2019 Docket: 37722

Between:

TELUS Communications Inc. Appellant

and

Avraham Wellman Respondent

— and —

Attorney General of British Columbia, ADR Chambers Inc., Canadian Chamber of Commerce, Public Interest Advocacy Centre, Consumers Council of Canada, Canadian Federation of Independent Business, Samuelson-Glushko Canadian Internet Policy and Public Interest Clinic and Consumers' Association of Canada Interveners

Coram: Wagner C.J. and Abella, Moldaver, Karakatsanis, Gascon, Côté, Brown, Rowe and Martin JJ.

Reasons for Judgment: (paras. 1 to 105) Moldaver J. (Gascon, Côté, Brown and Rowe JJ. concurring)

Dissenting Reasons: (paras. 106 to 172) Abella and Karakatsanis JJ. (Wagner C.J. and Martin J. concurring)

TELUS Communications Inc. v. Wellman, 2019 SCC 19, [2019] 2 S.C.R. 144

TELUS Communications Inc. — Appellant

v.

Avraham Wellman — Respondent

and

Attorney General of British Columbia, ADR Chambers Inc., Canadian Chamber of Commerce, Public Interest Advocacy Centre, Consumers Council of Canada, Canadian Federation of Independent Business, Samuelson‑Glushko Canadian Internet Policy and Public Interest Clinic and Consumers' Association of Canada — Interveners

Indexed as: TELUS Communications Inc. v. Wellman

2019 SCC 19

File No.: 37722.

2018: November 6; 2019: April 4.

Present: Wagner C.J. and Abella, Moldaver, Karakatsanis, Gascon, Côté, Brown, Rowe and Martin JJ.

on appeal from the court of appeal for ontario

Headnote

Civil procedure — Stay — Class actions — Consumer and non‑consumer claims — Arbitration clause — Customer filing class action for damages alleging cell phone service provider engaged in deceptive practices — Class consisting of both consumers and non‑consumers — Cell phone service provider's standard terms and conditions containing mandatory arbitration clause — Arbitration clause invalidated by provincial consumer protection legislation with respect to claims by consumers — Cell phone service provider relying on arbitration clause to seek stay of proceedings with respect to non‑consumers' claims — Whether provincial statute governing arbitration grants court discretion to refuse to stay non‑consumers' claims — Arbitration Act, 1991, S.O. 1991, c. 17, s. 7 — Consumer Protection Act, 2002, S.O. 2002, c. 30, Sch. A.

W filed a proposed class action for damages against TELUS on behalf of about two million Ontario residents who entered into mobile phone service contracts with TELUS during a specified timeframe. The class consists of both consumers and non‑consumers (business customers). W alleges that TELUS engaged in an undisclosed practice of rounding up calls to the next minute such that customers were overcharged and were not provided the number of minutes to which they were entitled. The standard terms and conditions of the service contracts included an arbitration clause stipulating that all claims arising out of or in relation to the contract, apart from the collection of accounts, must be determined through mediation and, failing that, arbitration. This clause was invalidated by the Consumer Protection Act to the extent that it would otherwise prevent class members who qualify as consumers from pursuing their claims in court. However, since the business customers do not benefit from this protection, TELUS sought to have the proceeding stayed with respect to the business customer claims, relying on the arbitration clause. The motions judge dismissed TELUS's motion for a stay and certified the action. She held that s. 7(5) of the Arbitration Act, 1991 grants the courts discretion to refuse a stay where it would not be reasonable to separate the matters dealt with in the arbitration agreement from the other matters, thereby allowing all of the matters to proceed in court. She was of the view that 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. The Court of Appeal dismissed TELUS's appeal.

Held (Wagner C.J. and Abella, Karakatsanis and Martin JJ. dissenting): The appeal should be allowed and the claims of the business customers stayed.

Per Moldaver, Gascon, Côté, Brown and Rowe JJ.: Section 7(5) of the Arbitration Act, 1991 does not grant the court discretion to refuse to stay claims that are dealt with in an arbitration agreement. The protections afforded by the Consumer Protection Act allow the consumers to pursue their claims in court, but the business customers remain bound by the arbitration agreements into which they entered. Accordingly, the latter are exposed to a stay under s. 7(1) of the Arbitration Act, 1991. Since the only potential exception to the general rule under s. 7(1) relied on by W does not apply, the business customer claims should be stayed.

In keeping with the modern approach that sees arbitration as an autonomous, self‑contained, self‑sufficient process pursuant to which the parties agree to have their disputes resolved by an arbitrator, not by the courts, s. 6 of the Arbitration Act, 1991 signals that courts are generally to take a hands off approach to matters governed by that statute. Section 7(1) of the Arbitration Act, 1991 establishes the general rule that where a party to an arbitration agreement commences a proceeding in respect of a matter dealt with in the agreement, the court shall, on the motion of another party to the agreement, stay the court proceeding in favour of arbitration. This general rule reaffirms the concept of party autonomy and upholds the policy underlying the Arbitration Act, 1991 that parties to a valid arbitration agreement should abide by their agreement. Section 7(2) lists five exceptions to the general rule under s. 7(1) where it would be either unfair or impractical to refer the matter to arbitration. Section 7(5) provides a further exception to the general rule under s. 7(1) and consists of two main components. First, s. 7(5)(a) and (b) set out two preconditions. The first precondition is met if the agreement deals with only some of the matters in respect of which the proceeding was commenced. That is, the proceeding must involve at least one matter that is dealt with in the arbitration agreement and at least one matter that is not dealt with in the arbitration agreement. The second precondition is met if it is reasonable to separate the matters dealt with in the agreement from the other matters. Second, if both preconditions are satisfied, then instead of ordering a full stay, the court may allow the matters that are not dealt with in the arbitration agreement to proceed in court, though it must nonetheless stay the court proceeding in respect of the matters that are dealt with in the agreement. If the preconditions are not met, then the discretionary exception under s. 7(5) is not triggered as s. 7(5) can have effect only if the two preconditions are satisfied. At that point, unless one of the exceptions listed in s. 7(2) applies, the general rule under s. 7(1) would apply, meaning that the proceeding must be stayed.

Policy considerations cannot be permitted to distort the actual words of the statute, read harmoniously with the scheme of the statute, its object, and the intention of the legislature, so as to make s. 7(5) say something it does not. While policy analysis has a legitimate role in the interpretive process, the responsibility for setting policy in a parliamentary democracy rests with the legislature, not with the courts. This is particularly so given that the Ontario legislature has already spoken to some of these policy concerns by shielding consumers from the potentially harsh results of enforcing arbitration agreements contained in consumer agreements, which often take the form of standard form contracts, through the Consumer Protection Act. The legislature made a careful policy choice to exempt consumers — and only consumers — from the ordinary enforcement of arbitration agreements. That choice must be respected, not undermined by reading s. 7(5) in a way that permits courts to treat consumers and non‑consumers as one and the same.

While there can be no doubt as to the importance of promoting access to justice, this objective cannot, absent express direction from the legislature, be permitted to overwhelm the other important objectives pursued by the Arbitration Act, 1991. To do so would undermine the legislature's stated objective of ensuring parties to a valid arbitration agreement abide by their agreement, reduce the degree of certainty and predictability associated with arbitration agreements, and weaken the concept of party autonomy in the commercial setting. It would expand the opportunities for parties to a valid arbitration agreement to avoid their agreement and seek relief in court. Furthermore, this case is not about debating the merits and demerits of enforcing arbitration clauses contained in standard from contracts. Rather, it is about the proper interpretation of s. 7(5) of the Arbitration Act, 1991. And, while distinguishing between consumers and non‑consumers may be a difficult exercise in certain cases, that difficulty does not bear on the proper interpretation of s. 7(5). Sorting between consumers and non‑consumers may be cumbersome in certain cases, but this inconvenience does not permit the court to recast the legislation as it sees fit in order to avoid such difficulties. Permitting non‑consumers to tag along with consumers on the basis that it would be cumbersome to sort between the two would also allow commercial entities to find the inside of a courtroom despite having agreed to arbitration, even where the arbitration agreement was fully negotiated. This would reduce the degree of certainty and predictability associated with arbitration agreements and permit parties to those agreements to piggyback onto the claims of others. Lastly, where the application of an Ontario statute, properly interpreted, leads to a multiplicity of proceedings, the court must give effect to the will of the legislature. Section 7(5) of the Arbitration Act, 1991 expressly contemplates bifurcation of proceedings, as it permits the court to order a partial stay, thereby potentially resulting in concurrent arbitration and court adjudication.

The sole matter at issue in the proceeding commenced by W is alleged overbilling. This matter is dealt with in the arbitration agreements into which the consumers and business customers entered. Therefore, because there is at least one matter in the proceeding that is dealt with in the arbitration agreements, the general rule under s. 7(1) of the Arbitration Act, 1991 would ordinarily require a stay of the proceeding as a whole, leaving both consumers and business customers locked out of court. But, s. 7(5) of the Consumer Protection Act renders the arbitration agreements entered into by the consumers invalid to the extent that they would otherwise prevent the consumers from commencing or joining a class action of the kind commenced by W. The business customers, however, do not qualify as consumers and as such they cannot invoke the protections that the consumers enjoy.

The only potential exception to s. 7(1) of the Arbitration Act, 1991 sought to be invoked on behalf of the business customers in this case, the partial stay provision under s. 7(5), offers no assistance. This is because the sole matter at issue in the proceeding is dealt with in the arbitration agreements into which the consumers and business customers entered, such that the first precondition set out in s. 7(5)(a) is not met. Consequently, the general rule under s. 7(1) is left intact insofar as the business customers are concerned and the proceeding must be stayed. However, this stay must be restricted to the parties who are legally bound by an arbitration agreement — namely, TELUS and the business customers. In sum, the motions judge and the Court of Appeal erred in law by interpreting s. 7(5) of the Arbitration Act, 1991 incorrectly and refusing to order a stay that, under s. 7(1), was mandatory. Section 7(5) of the Arbitration Act, 1991 does not permit the court to ignore a valid and binding arbitration agreement.

Per Wagner C.J. and Abella, Karakatsanis and Martin JJ. (dissenting): The appeal should be dismissed. Where a proceeding includes matters covered by an arbitration agreement and other matters that are not, s. 7(5) of the Arbitration Act, 1991 gives a judge discretion to allow the entire proceeding to continue in court, even if some parties would otherwise be subject to an arbitration clause.

Section 7(5) of the Arbitration Act, 1991 reflects an explicit legislative intention to override an otherwise applicable arbitration clause. The words of the provision state that "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". This means that the court can either stay the arbitrable matters before it or allow them to proceed. Logically, a discretionary ability to grant a partial stay also includes the power to refuse a partial stay. The only interpretation that gives meaningful effect to the discretionary language of s. 7(5) is one that confers on judges the ability to allow both arbitrable and non‑arbitrable disputes to proceed in court. An assertion that a court can never stay arbitrable matters under s. 7(5) renders the opening phrase — "may stay the proceeding with respect to the matters dealt with in the arbitration agreement" — superfluous. By interpreting the provision to apply only to non‑arbitrable matters, s. 7(5) adds nothing to a judge's existing discretion.

Ontario's Arbitration Act, 1991 was enacted to allow parties to design their own settlement processes and resolve their disputes outside the courts. It anticipated two or more parties freely negotiating their arbitral process. To ensure expedient resolution and lower litigation costs, the Arbitration Act, 1991 limited court intervention in arbitrable disputes. But it also gave judges discretion to permit court proceedings in certain limited circumstances, such as where the arbitration agreement was manifestly unfair. Where a proceeding includes both matters covered by an arbitration agreement and other matters that are not, s. 7(5) gives a judge discretion to allow the entire proceeding to continue in court, even if some parties would otherwise be subject to an arbitration clause. Since 2002, the Ontario Court of Appeal has interpreted s. 7(5) as granting the discretion to stay matters that would otherwise be subject to arbitration. Similarly, for nearly a decade, the Ontario Court of Appeal has interpreted s. 7(5) as permitting otherwise arbitrable matters to be joined with class actions in the public interests of avoiding duplicative proceedings, increased costs, and the risk of inconsistent results. This interpretation aligns with the text and scheme of the provisions and is consistent not only with the purposes motivating the enactment of the Arbitration Act, 1991 but also with the purpose of s. 7(5) itself.

The overall purpose of the Arbitration Act, 1991 was to promote access to justice. Its chosen means of achieving that goal was to promote accessibility by giving parties the choice of resolving disputes outside the court system. The reason for creating this option was a recognition that the court system could be costly and slow. The courts' discretion to intervene in arbitrable matters was therefore narrowed to further the goals of expedient dispute resolution.

Arbitration was intended to be a means by which parties on a relatively equal bargaining footing chose to design an alternative dispute mechanism. One cannot talk about "equal bargaining power" and "party autonomy" if the very nature of the contract reveals that one party has exclusive contractual authority. Parties to mandatory individual arbitration clauses cannot reasonably be said to have "come to the table" and bargained, since there is no bargaining table. That individuals and companies sign these contracts is a function not of bargaining choices, but of an absence of choice. All of TELUS's clients — both business and consumer — signed the same, non‑negotiable standard form agreement. TELUS's individualized arbitration clause effectively precludes access to justice for business clients when a low‑value claim does not justify the expense. And its mandatory nature illustrates that the animating rationales of party autonomy and freedom of contract are nowhere to be seen.

By inserting the reasonableness requirement in s. 7(5)(b) of the Arbitration Act, 1991, the provincial legislature clearly contemplated that in certain circumstances, it would be unreasonable to separate the matters dealt with in the arbitration agreement from the other matters. The availability of judicial discretion in s. 7(5) does not require judges to allow a class action including arbitrable claims to proceed: it simply lets them decide when it is reasonable to do so. Eliminating judicial discretion, on the other hand, effectively eliminates access to justice. In this light, s. 7(5) must be interpreted to give judges the discretion to refuse to stay arbitrable claims if it is unreasonable to separate them from non‑arbitrable claims. This interpretation applies with equal force whether the proceeding is between two or more named parties, or is a class action. An interpretation of s. 7(5) of the Arbitration Act, 1991 which permits otherwise arbitrable matters to be joined with class actions in the public interest of avoiding duplicative proceedings, increased costs, and the risk of inconsistent results aligns with the text and scheme of the provisions and is consistent not only with the purposes motivating the enactment of the Arbitration Act, 1991 but also with the purpose of s. 7(5) itself.

TELUS's interpretation would result in costly and time‑consuming factual inquiries on how to divide the arbitrable and non‑arbitrable claims even where the substance of both claims is identical, as in this case. Both parties acknowledged the potential difficulties associated with drawing the line between a "consumer" as defined by the Consumer Protection Act, who is exempt from arbitration, and a business customer, who is not. This distinction may be especially difficult to determine for those individuals who use their cell phone for both personal and business purposes. For these individuals, determining whether they fall within the scope of the exception in the Consumer Protection Act adds unnecessary complexity.

The purpose of the Arbitration Act, 1991, was to facilitate the ability of parties to negotiate their own process for resolving disputes outside of the courts, on the premise that access to justice had as much to do with access to a result as with access to a judge. To impose arbitration on unwilling parties violates the spirit of the Arbitration Act, 1991 and the arbitral process. This operates as an invisible but formidable barrier to a remedy and presumptively immunizes wrongdoing from accountability contrary to our most fundamental notions of civil justice. Section 7(5)(b) of the Arbitration Act, 1991 gave the motions judge discretion to consider whether it was reasonable to separate the matters dealt with in the agreement (claims of business customers) from the other matters (the consumer claims). The discretion was properly exercised in this case to allow the business claims to be joined with the consumer class action dealing with the same issues.

Cases Cited

By Moldaver J.

Considered: Griffin v. Dell Canada Inc., 2010 ONCA 29, 98 O.R. (3d) 481; Seidel v. TELUS Communications Inc., 2011 SCC 15, [2011] 1 S.C.R. 531; referred to: Corless v. Bell Mobility Inc., 2015 ONSC 7682; Bisaillon v. Concordia University, 2006 SCC 19, [2006] 1 S.C.R. 666; Canadian National Railway Co. v. Canada (Attorney General), 2014 SCC 40, [2014] 2 S.C.R. 135; Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235; Radewych v. Brookfield Homes (Ontario) Ltd., 2007 CanLII 23358, aff'd 2007 ONCA 721; Johnston v. Goudie (2006), 2006 CanLII 19931 (ON CA), 212 O.A.C. 79; Penn‑Co Construction Canada (2003) Ltd. v. Constance Lake First Nation (2007), 66 C.L.R. (3d) 78, aff'd 2008 ONCA 768, 76 C.L.R. (3d) 1; Frambordeaux Developments Inc. v. Romandale Farms Ltd., 2007 CanLII 55364; New Era Nutrition Inc. v. Balance Bar Co., 2004 ABCA 280, 357 A.R. 184; Griffin v. Dell Canada Inc. (2009), 2009 CanLII 3557 (ON SC), 72 C.P.C. (6th) 158; Dell Computer Corp. v. Union des consommateurs, 2007 SCC 34, [2007] 2 S.C.R. 801; Rogers Wireless Inc. v. Muroff, 2007 SCC 35, [2007] 2 S.C.R. 921; GreCon Dimter inc. v. J.R. Normand inc., 2005 SCC 46, [2005] 2 S.C.R. 401; Desputeaux v. Éditions Chouette (1987) inc., 2003 SCC 17, [2003] 1 S.C.R. 178; Bell ExpressVu Limited Partnership v. Rex, 2002 SCC 42, [2002] 2 S.C.R. 559; Re Rootes Motors (Canada) Ltd. and Wm. Halliday Contracting Co., 1952 CanLII 304 (ON SC), [1952] 4 D.L.R. 300; Ontario Hydro v. Denison Mines Ltd., 1992 CarswellOnt 3497; Astoria Medical Group v. Health Insurance Plan of Greater New York, 182 N.E.2d 85 (1962); Re Arbitration Act (1964), 1964 CanLII 732 (AB KB), 47 W.W.R. 544; Haas v. Gunasekaram, 2016 ONCA 744, 62 B.L.R. (5th) 1; Inforica Inc. v. CGI Information Systems and Management Consultants Inc., 2009 ONCA 642, 97 O.R. (3d) 161; Alberici Western Constructors Ltd. v. Saskatchewan Power Corp., 2016 SKCA 46, 476 Sask. R. 255; Briones v. National Money Mart Co., 2013 MBQB 168, 295 Man. R. (2d) 101, aff'd 2014 MBCA 57, 306 Man. R. (2d) 129; MDG Kingston Inc. v. MDG Computers Canada Inc., 2008 ONCA 656, 92 O.R. (3d) 4; Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87; Heller v. Uber Technologies Inc., 2019 ONCA 1.

By Abella and Karakatsanis JJ. (dissenting)

Rizzo & Rizzo Shoes Ltd. (Re), 1998 CanLII 837 (SCC), [1998] 1 S.C.R. 27; Griffin v. Dell Canada Inc., 2010 ONCA 29, 98 O.R. (3d) 481; Griffin v. Dell Canada Inc. (2009), 2009 CanLII 3557 (ON SC), 72 C.P.C. (6th) 158; Radewych v. Brookfield Homes (Ontario) Ltd., 2007 CanLII 23358, aff'd 2007 ONCA 721; Johnston v. Goudie (2006), 2006 CanLII 19931 (ON CA), 212 O.A.C. 79; Penn‑Co Construction Canada (2003) Ltd. v. Constance Lake First Nation (2007), 66 C.L.R. (3d) 78 (S.C.J.), aff'd 2008 ONCA 768, 76 C.L.R. (3d) 1; Frambordeaux Developments Inc. v. Romandale Farms Ltd., 2007 CanLII 55364; New Era Nutrition Inc. v. Balance Bar Co., 2004 ABCA 280, 245 D.L.R. (4th) 107; R. v. Alex, 2017 SCC 37, [2017] 1 S.C.R. 967; Rosedale Motors Inc. v. Petro‑Canada Inc. (1998), 1998 CanLII 14721 (ON SC), 42 O.R. (3d) 776; Brown v. Murphy (2002), 2002 CanLII 41652 (ON CA), 59 O.R. (3d) 404; Seidel v. TELUS Communications Inc., 2011 SCC 15, [2011] 1 S.C.R. 531.

Statutes and Regulations Cited

Arbitration Act, 1991, S.O. 1991, c. 17, ss. 1 "arbitration agreement", 6, 7.

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

Consumer Protection Act, 2002, S.O. 2002, c. 30, Sch. A, ss. 1 "consumer", "consumer agreement", "supplier", 7, 8.

Courts of Justice Act, R.S.O. 1990, c. C.43, ss. 106, 138.

Interpretation Act, R.S.O. 1990, c. I.11, s. 10.

Rules of Civil Procedure, R.R.O. 1990, Reg. 194, r. 1.03(1) "proceeding".

Authors Cited

Alberta. Institute of Law Research and Reform. Report No. 51. Proposals for a New Alberta Arbitration Act. Edmonton: Institute of Law Research and Reform, 1988.

Alberta Law Reform Institute. Final Report No. 103. Arbitration Act: Stay and Appeal Issues. Edmonton: Alberta Law Reform Institute, 2013.

Casey, J. Brian. Arbitration Law of Canada: Practice and Procedure, 3rd ed. Huntington, N.Y.: Juris, 2017.

Driedger, Elmer A. Construction of Statutes, 2nd ed. Toronto: Butterworths, 1983.

Estlund, Cynthia. "The Black Hole of Mandatory Arbitration" (2018), 96 N.C. L. Rev. 679.

McEwan, J. Kenneth, and Ludmila B. Herbst. Commercial Arbitration in Canada: A Guide to Domestic and International Arbitrations. Aurora, Ont.: Canada Law Book, 2004 (loose‑leaf updated December 2018, release 16).

McGill, Shelley. "The Conflict Between Consumer Class Actions and Contractual Arbitration Clauses" (2006), 43 Can. Bus. L.J. 359.

Ontario. Legislative Assembly. Official Report of Debates (Hansard), 1st Sess., 35th Parl., March 27, 1991, pp. 245, 256.

Ontario. Legislative Assembly. Official Report of Debates (Hansard), 1st Sess., 35th Parl., November 5, 1991, p. 3384.

Pavlović, Marina, and Anthony Daimsis. "Arbitration", in John C. Kleefeld et al., eds., Dispute Resolution: Readings and Case Studies, 4th ed. Toronto: Emond Montgomery, 2016.

Sullivan, Ruth. Statutory Interpretation, 3rd ed. Toronto: Irwin Law, 2016.

Sullivan, Ruth. Sullivan on the Construction of Statutes, 6th ed. Markham, Ont.: LexisNexis, 2014.

Uniform Law Conference of Canada. Arbitration Amendment Act (2002) (online: https://www.ulcc.ca/en/uniform‑acts‑new‑order/drafting‑conventions/117‑josetta‑1‑en‑gb/uniform‑actsa/arbitration‑act/1108‑arbitration‑act‑amendment; archived version: https://www.scc-csc.ca/cso-dce/2019SCC-CSC19_2_eng.pdf).

Uniform Law Conference of Canada. Uniform Arbitration Act (1990) (online: https://www.ulcc.ca/images/stories/Uniform_Acts_EN/Arbitrat_En.pdf; archived version: https://www.scc-csc.ca/cso-dce/2019SCC-CSC19_1_eng.pdf).

APPEAL from a judgment of the Ontario Court of Appeal (Weiler, Blair and van Rensburg JJ.A.), 2017 ONCA 433, 138 O.R. (3d) 413, 413 D.L.R. (4th) 684, 100 C.P.C. (7th) 1, [2017] O.J. No. 2800 (QL), 2017 CarswellOnt 8100 (WL Can.), [2017] AZ‑51397363, affirming a decision of Conway J., 2014 ONSC 3318, 63 C.P.C. (7th) 50, [2014] O.J. No. 5613 (QL), 2014 CarswellOnt 16562 (WL Can.). Appeal allowed, Wagner C.J., Abella, Karakatsanis and Martin JJ. dissenting.

Counsel

For the appellant: D. Geoffrey G. Cowper, Q.C., Andrew D. Borrell, Alexandra Mitretodis and Alan Dabb.

For the respondent: Joel P. Rochon, Peter R. Jervis, Golnaz Nayerahmadi and Eli Karp.

For the intervener the Attorney General of British Columbia: Jonathan Eades and James L. Maxwell.

For the intervener ADR Chambers Inc.: Michael Eizenga, Andrew Little, Ranjan Agarwal and Charlotte Harman.

For the intervener the Canadian Chamber of Commerce: Brandon Kain, Adam Goldenberg and Ljiljana Stanić.

For the interveners the Public Interest Advocacy Centre and the Consumers Council of Canada: Mohsen Seddigh and Daniel Hamson.

For the intervener the Canadian Federation of Independent Business: Anthony Daimsis.

For the intervener Samuelson‑Glushko Canadian Internet Policy and Public Interest Clinic: Marina Pavlović and Cynthia Khoo.

For the intervener the Consumers' Association of Canada: Daniel E. H. Bach, Tyler J. Planeta and Michael Sobkin.

Reasons for Judgment

The judgment of Moldaver, Gascon, Côté, Brown and Rowe JJ. was delivered by

Moldaver J. —

I. Overview

[1] This appeal requires the Court to decide what happens when a series of arbitration agreements, the Ontario Arbitration Act, 1991, S.O. 1991, c. 17 ("Arbitration Act"),[^1] the Consumer Protection Act, 2002, S.O. 2002, c. 30, Sch. A ("Consumer Protection Act"), and a consumer/non-consumer class action collide.

[2] This collision occurred when the respondent, Avraham Wellman, filed a proposed class action in Ontario against the appellant, TELUS Communications Inc. ("TELUS"), on behalf of about two million Ontario residents who entered into mobile phone service contracts with the company during a specified timeframe. The class consists of both consumers and non-consumers, the latter being business customers. The action centres on the allegation that TELUS engaged in an undisclosed practice of "rounding up" calls to the next minute such that customers were overcharged and were not provided the number of minutes to which they were entitled.

[3] The contracts in question, which were not negotiated, contain standard terms and conditions drafted by TELUS, including an arbitration clause which, broadly speaking, stipulates that all claims arising out of or in relation to the contract, apart from the collection of accounts by TELUS, shall be determined through mediation and, failing that, arbitration.

[4] By virtue of the Consumer Protection Act, however, this arbitration clause is invalid to the extent that it would otherwise prevent class members who qualify as "consumers" from commencing or joining a class action of the kind commenced by Mr. Wellman. Indeed, as we shall see, the Consumer Protection Act expressly shields consumers from a stay of proceedings under the Arbitration Act. Consequently, they are free to pursue their claims in court. The business customers, however, do not benefit from these protections. So where does this leave them?

[5] The answer, Mr. Wellman says, lies in s. 7(5) of the Arbitration Act which, read alongside s. 7(1), provides as follows:

Stay

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.

Agreement covering part of dispute

(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] In Mr. Wellman's submission, s. 7(5) grants the court discretion to allow all of the class members, consumers and business customers alike, to pursue their claims together in court, provided it would not be reasonable to separate their claims. This is so, Mr. Wellman maintains, despite the fact that the business customers contracted to resolve their claims through arbitration and would otherwise be bound by that agreement. The courts below, following Griffin v. Dell Canada Inc., 2010 ONCA 29, 98 O.R. (3d) 481, leave to appeal refused, [2010] 1 S.C.R. viii, agreed with Mr. Wellman.

[7] TELUS sees things differently. It contends that under s. 7(5), a court has no authority to refuse to stay claims that are subject to an otherwise valid and enforceable arbitration agreement. Rather, it says that the only exceptions to the general stay provision under s. 7(1) are found in s. 7(2), and unless one of those exceptions applies, claims that are subject to arbitration must be stayed — full stop. It submits that since none of these exceptions applies, the business customer claims must be stayed.

[8] For reasons that follow, I am of the view that s. 7(5) of the Arbitration Act does not grant the court discretion to refuse to stay claims that are dealt with in an arbitration agreement. To borrow the language from this Court's decision in Seidel v. TELUS Communications Inc., 2011 SCC 15, [2011] 1 S.C.R. 531, it is not "a legislative override of the parties' freedom to choose arbitration" (para. 40). Instead, as I will develop, when the s. 7 framework is considered along with the protections afforded by the Consumer Protection Act, it becomes clear that while the consumers remain free to pursue their claims in court, the business customers do not. Rather, they remain bound by the arbitration agreements into which they entered, thereby leaving them exposed to a stay under s. 7(1) of the Arbitration Act. The only potential exception to s. 7(1) sought to be invoked on behalf of the business customers in this case, the partial stay provision under s. 7(5), offers no assistance. This is because the sole "matter" at issue in the proceeding — alleged overbilling — is dealt with in the arbitration agreements into which the consumers and business customers entered, such that the first precondition set out in s. 7(5)(a) is not met. Consequently, the general rule under s. 7(1) is left intact insofar as the business customers are concerned.

[9] I would therefore allow the appeal and stay the business customer claims accordingly.

II. Background

A. TELUS Mobile Phone Service Contracts

[10] Mobile phone services arrived in Canada in the mid-1980s. For about a decade, the main service providers, including TELUS, billed customers on a per-minute basis. TELUS then started offering per-second billing but returned to per-minute billing in 2002.

[11] Throughout the relevant period, TELUS's monthly plans included a fixed number of minutes for a set fee, with additional charges for excess usage. For example, TELUS offered a plan giving customers 50 minutes of service plus 50 local minutes for $30, with a charge of 30 cents for each additional local minute. Usage was calculated by rounding up call length to the next minute. So, for example, a call lasting one minute and one second was rounded up to two minutes.

[12] Each customer who signed up for a per-minute plan entered into a written contract incorporating TELUS's standard terms and conditions, including an arbitration clause which, broadly speaking, stipulates that all claims arising out of or in relation to the contract, apart from the collection of accounts by TELUS, must be determined by private and confidential mediation and, failing that, private, confidential, and binding arbitration.

B. Mr. Wellman's Class Action

[13] In 2006, Mr. Wellman entered into a per-minute plan with TELUS. Years later, he filed a proposed class action in Ontario against TELUS[^2] alleging that between 2002 and 2010, TELUS's standard terms and conditions made no mention of the practice of rounding up. The action consists of some two million Ontario residents who entered into per-minute plans with TELUS between August 2006 and July 2010. Seventy percent of the class members (about 1,400,000) are consumers who purchased plans for personal use, while 30 percent (about 600,000) are non-consumers who purchased plans for business use.

[14] Mr. Wellman, who pleads that he qualifies as a consumer, alleges that TELUS's undisclosed practice of rounding up accelerated the depletion of the fixed number of minutes class members purchased and prematurely subjected them to excess usage charges. Consequently, he says, class members were overcharged and were not provided the number of minutes to which they were entitled. On this basis, he asserts three causes of action: breach of contract, breach of the Consumer Protection Act, and unjust enrichment. He claims $500 million in damages and $20 million in punitive damages on behalf of the class.

[15] Mr. Wellman brought a motion to have the action certified as a class action under the Class Proceedings Act, 1992, S.O. 1992, c. 6 ("Class Proceedings Act").[^3] In response, TELUS brought a motion to have the proceeding stayed with respect to the non-consumer claims, relying on the arbitration clause contained in its standard terms and conditions.

III. Statutory Provisions

[16] Two statutes lie at the heart of this appeal: the Arbitration Act and the Consumer Protection Act. The key sections of these two pieces of legislation are set out below. As it happens, there is some overlap in terms of section numbers, so care must be taken to keep in mind which statute is being discussed when a section number is referred to in these reasons.

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

Definitions

1 In this Act,

"arbitration agreement" means an agreement by which two or more persons agree to submit to arbitration a dispute that has arisen or may arise between them;

Court Intervention

Court intervention limited

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.

Stay

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.

Exceptions

(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.

Arbitration may continue

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

Effect of refusal to stay

(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.

Agreement covering part of dispute

(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.

No appeal

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

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

No waiver of substantive and procedural rights

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

Limitation on effect of term requiring arbitration

(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.

Non-application of Arbitration Act, 1991

(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.

Class proceedings

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.

IV. Decisions Below

A. Ontario Superior Court (Conway J.), 2014 ONSC 3318, 63 C.P.C. (7th) 50

[17] Before the motions judge, Conway J., TELUS conceded that s. 7(2) of the Consumer Protection Act shielded the consumers from the effect of the arbitration clause. It maintained, however, that the claims of the business customers, who enjoy no protection under the Consumer Protection Act, had to be stayed because they were subject to a valid and binding arbitration agreement.

[18] The motions judge disagreed. Relying on the Ontario Court of Appeal's decision in Griffin, she held that s. 7(5) of the Arbitration Act grants the courts discretion to refuse a stay where it would not be reasonable to separate the matters dealt with in the arbitration agreement from the other matters, thereby allowing all of the matters to proceed in court. She added that 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" (para. 89). She rejected TELUS's contention that Griffin had been overruled by this Court's decision in Seidel.

[19] She then turned to the application of s. 7(5) of the Arbitration Act. She found that it would not be reasonable to separate the consumer claims from the business customer claims, observing that:

• the class members' claims arise from the same facts, involve the same legal issues and require the same evidence;
• similar findings would need to be made;
• separate proceedings would result in increased costs;
• there is a risk of inconsistent findings;
• the claims of consumers and non-consumers are inextricably linked and mixed; and
• the ability of each of the members of the class to individually vindicate their rights would not justify the cost of arbitration (para. 107).

[20] In the result, the motions judge dismissed TELUS's motion for a stay of the business customer claims and certified the action.[^4]

B. Ontario Court of Appeal (Weiler, Blair and van Rensburg JJ.A.), [2017 ONCA 433](https://www.minicounsel.ca/oca/2017/433), 138 O.R. (3d) 413

[21] Writing for a unanimous Court of Appeal, Blair J.A. dismissed TELUS's appeal.

[22] He began by addressing the main issue: the interpretation of s. 7(5) of the Arbitration Act. He was of the view that Griffin remained authoritative and that it had not been overruled by Seidel. He maintained that under Griffin, s. 7(5) grants the court discretion to allow arbitrable claims to proceed in court where it would be unreasonable to separate them from the non-arbitrable claims.

[23] Having found that Griffin was still binding authority, Blair J.A. held that the motions judge had not erred in the exercise of her discretion. He agreed with her analysis and conclusion, observing that the motions judge had carefully addressed each of the factors that were relevant and had arrived at a well-reasoned decision that was entitled to deference.

[24] Blair J.A. also addressed a secondary issue: whether the Consumer Protection Act protections that the consumers enjoy could be conferred on the business customers. He concluded, as I do, that the Consumer Protection Act's provisions regarding arbitration apply only to "consumers" as defined in that statute. TELUS and the business customers are therefore bound by their arbitration agreement.

V. Issues

[25] This appeal raises two questions:

1. Does s. 7(5) of the Arbitration Act grant the court discretion to refuse to stay the claims of business customers that are subject to a valid and binding arbitration agreement?

2. Alternatively, do the protections afforded by the Consumer Protection Act to consumers extend to business customers?

[26] As stated above, Blair J.A. answered the second question — which TELUS also raised in this Court — in the negative. I agree with him, as does Mr. Wellman. This question is therefore not in dispute and needs no further discussion.

[27] The first question is the key issue in this appeal. With respect, I disagree with the courts below. As I will develop, s. 7(5) does not grant the court discretion to refuse to stay claims that are subject to an otherwise valid and enforceable arbitration agreement. And since the only potential exception to the general stay provision that was sought to be invoked on behalf of the business customers — the partial stay provision under s. 7(5) — does not apply in this case, the business customer claims must be stayed.

VI. Analysis

A. Standard of Review

[28] The issue in this appeal is one of statutory interpretation — a question of law reviewed on a correctness standard (Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, at para. 8).

B. Section 7(5) of the Arbitration Act Does Not Grant the Court Discretion to Refuse a Stay

(1) Overview of the Section 7 Framework

[29] Section 7 of the Arbitration Act sets out when a court is required to stay a proceeding, as well as the limited circumstances in which a court may refuse to stay a proceeding or order only a partial stay.

[30] Section 7(1) establishes the general rule: where a party to an arbitration agreement commences a proceeding in respect of a matter dealt with in the agreement, the court shall, on the motion of another party to the agreement, stay the court proceeding. This general rule reaffirms the concept of party autonomy and upholds the policy underlying the Arbitration Act that parties to a valid arbitration agreement should abide by their agreement: see Seidel, at para. 27.

[31] Section 7(2) lists five exceptions to the general rule under s. 7(1) where it would be either unfair or impractical to refer the matter to arbitration. None of these exceptions is relied upon in this case.

[32] Finally, s. 7(5) provides a further exception to the general rule under s. 7(1). Unlike the exceptions in s. 7(2), which permit the court to refuse to stay the proceeding altogether, s. 7(5) provides for a partial stay only. It contemplates a scenario where the proceeding involves some matters that are dealt with in the arbitration agreement and some that are not, and where it is reasonable to separate the matters dealt with in the agreement from the other matters. In such a scenario, 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."

[33] As I will explain, s. 7(5) does not give the court a general discretion to disregard a valid and binding arbitration agreement. Rather, under s. 7(5), the court's authority is confined to allowing the matters not dealt with in the arbitration agreement to proceed in court; with respect to the matters dealt with in the agreement, the court must still stay the proceeding.

(2) Interpretation of Section 7(5)

[34] The modern approach to statutory interpretation requires that "the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament": Elmer Driedger, Construction of Statutes (2nd ed. 1983), at p. 87, cited in Rizzo & Rizzo Shoes Ltd. (Re), 1998 CanLII 837 (SCC), [1998] 1 S.C.R. 27, at para. 21.

[35] I begin with the text of s. 7(5), which reads 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.

[36] Section 7(5) consists of two main components. First, s. 7(5)(a) and (b) set out two preconditions that must be satisfied before the provision can have any effect. Second, if those preconditions are satisfied, the provision allows for only a partial stay — not the denial of a stay altogether.

[37] The first precondition — s. 7(5)(a) — is met if "the agreement deals with only some of the matters in respect of which the proceeding was commenced." The word "only" is critical here. Section 7(5)(a) requires that the agreement deal with only some of the matters in the proceeding. That is, the proceeding must involve at least one matter that is dealt with in the arbitration agreement and at least one matter that is not dealt with in the arbitration agreement.

[38] The second precondition — s. 7(5)(b) — is met if "it is reasonable to separate the matters dealt with in the agreement from the other matters."

[39] If both preconditions are satisfied, then instead of ordering a full stay, the court may allow the matters that are not dealt with in the arbitration agreement to proceed in court, though it must nonetheless stay the court proceeding in respect of the matters that are dealt with in the agreement.

[40] If the preconditions are not met, then the discretionary exception under s. 7(5) is not triggered — s. 7(5) can have effect only if the two preconditions are satisfied. At that point, unless one of the exceptions listed in s. 7(2) applies, the general rule under s. 7(1) would apply, meaning that the proceeding must be stayed.

[41] In other words, even if I were to accept (which I do not) that s. 7(5) grants the court a discretion to refuse to stay claims that are dealt with in an arbitration agreement, the preconditions of s. 7(5) would still have to be satisfied in order to trigger that discretion. As I will discuss, in this case the preconditions of s. 7(5) are not satisfied.

(3) Proper Reading of Section 7(5)

[42] With respect to the majority of the Court of Appeal and the dissenting judges on this Court, the approach endorsed by Mr. Wellman fundamentally misreads s. 7(5). On Mr. Wellman's interpretation, s. 7(5) gives the court discretion not to stay proceedings even though they are dealt with in an arbitration agreement. But this is precisely what s. 7(5) does not say. Section 7(5) does not authorize the court to allow claims that are dealt with in an arbitration agreement to proceed. Rather, s. 7(5) authorizes the court to allow claims that are not dealt with in an arbitration agreement to proceed — claims that, absent s. 7(5), might otherwise be stayed as part of the general proceeding. With respect to the claims that are dealt with in an arbitration agreement, even under s. 7(5), the court can do no more than stay those claims.

[43] The heading of s. 7(5) confirms this. Section 7(5) is titled "Agreement covering part of dispute", and the opening words — "The court may stay the proceeding with respect to the matters dealt with in the arbitration agreement" — speak of a partial stay, not the refusal of a stay. While I would not rest my interpretation of s. 7(5) on the heading alone, the heading here is consistent with the text.

[44] What does the phrase "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" (emphasis added) mean? Mr. Wellman and the dissenting judges read this phrase as permitting the court to allow matters dealt with in the arbitration agreement — as well as other matters — to proceed in court. In other words, they read the phrase as encompassing both the arbitrable matters and the non-arbitrable matters.

[45] I cannot accept this interpretation. On Mr. Wellman's reading, the preconditions of s. 7(5)(a) and (b) would become largely irrelevant: if s. 7(5) gives the court a general discretion to allow all claims, including those that are subject to an arbitration agreement, to proceed in court, then one would expect the legislature to frame the provision entirely in terms of that discretion rather than building in preconditions to its exercise. On the contrary, the preconditions — particularly s. 7(5)(a) — signal that s. 7(5) has a limited and specific scope: it applies only to the "other matters" that are not dealt with in the arbitration agreement. This is the only reading that gives meaningful effect to s. 7(5)(a).

[46] I also note that s. 7(5) states that the court "may stay the proceeding with respect to the matters dealt with in the arbitration agreement". This text must be given meaning. On the dissent's interpretation, this phrase is little more than dead letter since the phrase is only part of the "either/or" choice the court has — it can stay the arbitrable claims or not. On the dissent's view, then, the phrase "may stay the proceeding with respect to the matters dealt with in the arbitration agreement" adds nothing to the provision because the court already has the power to stay proceedings through s. 7(1). But the principles of statutory interpretation require us to give meaning to every word in a provision; we should not read provisions so as to render some words superfluous. The better reading is that the phrase "the court may stay the proceeding with respect to the matters dealt with in the arbitration agreement" confirms that, under s. 7(5), the court's authority with respect to matters that are the subject of an arbitration agreement is limited to staying those matters.

[47] Finally, the text of s. 7(5) is reinforced by the broader s. 7 framework. The general rule under s. 7(1) is that where a party to an arbitration agreement commences a proceeding, the court shall stay the proceeding. The exceptions under s. 7(2) may permit the court to refuse the stay altogether in certain narrowly defined circumstances. Section 7(5) provides an additional exception — but a partial stay exception — where the proceeding involves some matters that fall under an arbitration agreement and some that do not, and where it is reasonable to separate the matters. Read in this context, s. 7(5) serves a specific and limited function: it provides a mechanism for courts to allow the non-arbitrable claims to proceed in court, even where they are brought together with arbitrable claims. But s. 7(5) does not authorize courts to allow the arbitrable claims to proceed in court — those claims remain subject to the mandatory stay under s. 7(1).

(4) Section 7(5) Has a Clear Purpose

[48] To appreciate the proper scope of s. 7(5), it is helpful to consider what mischief the provision was intended to address. The historical context of the Arbitration Act illuminates this.

[49] Like many Canadian provinces and territories, Ontario modelled its Arbitration Act, 1991 largely after the Uniform Arbitration Act that was developed by the Uniform Law Conference of Canada in 1990. Both the Uniform Arbitration Act and the Uniform Arbitration Amendment Act (2002) — enacted to deal with class proceedings — are available on the website of the Uniform Law Conference of Canada (now archived at https://www.scc-csc.ca/cso-dce/2019SCC-CSC19_1_eng.pdf and https://www.scc-csc.ca/cso-dce/2019SCC-CSC19_2_eng.pdf, respectively). The Arbitration Act's predecessor, the Arbitrations Act, R.S.O. 1980, c. 25, did not include a provision comparable to s. 7(5). The introduction of s. 7(5) filled a gap in the pre-existing legislation.[^6]

[50] Before the enactment of the Arbitration Act, courts had difficulty dealing with proceedings that involved some matters that were subject to an arbitration agreement and some that were not, because the governing legislation generally required courts to stay the entire proceeding if part of it was subject to arbitration. This left the parties in an awkward position, particularly where not all of the claims in the proceeding were subject to the arbitration agreement. Section 7(5) was designed to address this problem by giving courts the flexibility to allow the non-arbitrable claims to proceed in court while staying the arbitrable claims.

[51] Understanding the purpose of s. 7(5) confirms that it was not designed to give courts the authority to allow arbitrable claims to proceed in court. Rather, it was designed to give courts the authority to allow non-arbitrable claims to proceed in court, even where they are mixed together with arbitrable claims. Section 7(5) does not purport to displace or modify the mandatory stay under s. 7(1); rather, it provides a mechanism to ensure that the non-arbitrable claims can proceed in court even in the face of a mandatory stay with respect to the arbitrable claims.

(5) Policy Considerations Cannot Override the Text

[52] It has been said that courts must always be alive to the policy considerations underlying legislation, and that the modern approach to statutory interpretation requires courts to consider the object and purpose of the legislation as a whole. I agree. But policy considerations cannot be permitted to distort the actual words of the statute, read harmoniously with the scheme of the statute, its object, and the intention of the legislature, so as to make s. 7(5) say something it does not.

[53] At the same time, while policy analysis has a legitimate role in the interpretive process, the responsibility for setting policy in a parliamentary democracy rests with the legislature, not with the courts: see Canadian National Railway Co. v. Canada (Attorney General), 2014 SCC 40, [2014] 2 S.C.R. 135, at para. 54. This is particularly so given that the Ontario legislature has already spoken to some of these policy concerns by shielding consumers from the potentially harsh results of enforcing arbitration agreements contained in consumer agreements, which often take the form of standard form contracts, through the Consumer Protection Act. The legislature made a careful policy choice to exempt consumers — and only consumers — from the ordinary enforcement of arbitration agreements. That choice must be respected, not undermined by reading s. 7(5) in a way that permits courts to treat consumers and non-consumers as one and the same.

[54] While there can be no doubt as to the importance of promoting access to justice, this objective cannot, absent express direction from the legislature, be permitted to overwhelm the other important objectives pursued by the Arbitration Act. To do so would undermine the legislature's stated objective of ensuring parties to a valid arbitration agreement abide by their agreement, reduce the degree of certainty and predictability associated with arbitration agreements, and weaken the concept of party autonomy in the commercial setting. It would expand the opportunities for parties to a valid arbitration agreement to avoid their agreement and seek relief in court.

[55] Furthermore, this case is not about debating the merits and demerits of enforcing arbitration clauses contained in standard from contracts. Rather, it is about the proper interpretation of s. 7(5) of the Arbitration Act. And, while distinguishing between consumers and non-consumers may be a difficult exercise in certain cases, that difficulty does not bear on the proper interpretation of s. 7(5). Sorting between consumers and non-consumers may be cumbersome in certain cases, but this inconvenience does not permit the court to recast the legislation as it sees fit in order to avoid such difficulties.

[56] Permitting non-consumers to tag along with consumers on the basis that it would be cumbersome to sort between the two would also allow commercial entities to find the inside of a courtroom despite having agreed to arbitration, even where the arbitration agreement was fully negotiated. This would reduce the degree of certainty and predictability associated with arbitration agreements and permit parties to those agreements to piggyback onto the claims of others.

[57] Lastly, where the application of an Ontario statute, properly interpreted, leads to a multiplicity of proceedings, the court must give effect to the will of the legislature. Section 7(5) of the Arbitration Act expressly contemplates bifurcation of proceedings, as it permits the court to order a partial stay, thereby potentially resulting in concurrent arbitration and court adjudication.

C. The Griffin Decision

[58] As I noted above, the courts below relied on the Ontario Court of Appeal's decision in Griffin for the proposition that s. 7(5) grants the court discretion to allow arbitrable claims to proceed in court. With respect, I am of the view that Griffin was wrongly decided on this point and should not be followed.

[59] In Griffin, the plaintiff brought a proposed class action against a computer manufacturer for allegedly misleading warranty representations. The class consisted of both consumers and non-consumers. The computer manufacturer's sales contracts contained an arbitration clause that — like the Consumer Protection Act — invalidated the clause with respect to consumer claims. The computer manufacturer sought to have the non-consumer claims stayed. The Ontario Court of Appeal held that s. 7(5) gives the court discretion to allow non-consumer claims to proceed in court where it would be unreasonable to separate them from the consumer claims.

[60] The Court of Appeal in Griffin concluded that "the discretion conferred by s. 7(5) extends not just to allowing the non-arbitrable matters to proceed in the court action, but also the arbitrable matters, where it would be unreasonable to separate them" (para. 47, emphasis in original). This conclusion rests on the view that the word "may" in the opening of s. 7(5) confers a discretion to refuse a stay with respect to matters that are dealt with in an arbitration agreement.

[61] With respect, this reading of s. 7(5) is untenable. As I have explained, the opening phrase of s. 7(5) — "The court may stay the proceeding with respect to the matters dealt with in the arbitration agreement" — refers to the partial stay that the court is authorized to impose. It does not authorize the court to refuse to stay the arbitrable claims. Indeed, a close reading of the text confirms this.

[62] Section 7(5) provides that 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" (emphasis added). The use of "and" is crucial here. Section 7(5) authorizes the court to stay some matters and allow other matters to continue. The "stay" of the arbitrable matters and the "allowance to continue" of the non-arbitrable matters are presented as two sides of the same coin. The two parts of s. 7(5) — the stay and the allowance to continue — go together. They are not presented as alternatives. The provision authorizes a partial stay — not a refusal to stay.

[63] Furthermore, the preconditions of s. 7(5) — particularly s. 7(5)(a) — support this reading. If, as the Court of Appeal in Griffin held, s. 7(5) gives the court a general discretion to allow arbitrable claims to proceed in court where it would be unreasonable to separate them from the non-arbitrable claims, then the precondition of s. 7(5)(a) would be largely redundant. On Griffin's interpretation, the key question under s. 7(5) is whether it is reasonable to separate the matters, as set out in s. 7(5)(b). But s. 7(5)(a) — which asks whether the agreement covers only some of the matters — would have no independent role to play. The condition that the agreement cover only some of the matters becomes meaningful only if s. 7(5) is read as authorizing the court to deal with the non-arbitrable matters, not the arbitrable ones. On this reading, the precondition serves as a gatekeeper: s. 7(5) applies only where there are some non-arbitrable matters that the court might allow to proceed.

[64] As I indicated above, Seidel v. TELUS Communications Inc., 2011 SCC 15, did not address the question of whether Griffin's interpretation of s. 7(5) was correct. However, since the issue is squarely before this Court, the opportunity has arrived to address it. I would hold that Griffin's interpretation of s. 7(5) is wrong for the reasons set out above, and that it should not be followed.

D. Application

(1) The Proceeding

[93] The "proceeding" in this case is simply the class action proceeding commenced by Mr. Wellman, who claims to be a "consumer" under the Consumer Protection Act. This proceeding serves as a procedural vehicle through which multiple parties can pursue their individual claims together (see Bisaillon, at para. 17). As indicated, some of these parties are consumers, while others are business customers.

(2) The Arbitration Agreements

[94] This proceeding involves not a single arbitration "agreement", but rather a constellation of "agreements", each taking the form of a standard form arbitration clause incorporated into every individual mobile phone service contract between TELUS and each of its customers, consumers and non-consumers alike. Each agreement contains identical terms regarding the types of matters covered by the agreement. Broadly speaking, they stipulate that all claims arising out of or in relation to the contract, apart from the collection of accounts by TELUS, shall be determined through mediation and, failing that, arbitration. In this way, the agreements identify the "matters" in respect of which arbitration is mandatory, as well as the "matters" in respect of which arbitration is not mandatory: disputes over collections are not subject to mandatory arbitration, whereas disputes over any other matter arising out of or in relation to the contract are.

(3) Whether Section 7(5) Applies

[95] As I explained above, s. 7(5) applies only if two preconditions are met. The first precondition is found in s. 7(5)(a): the arbitration agreement must deal with only some of the matters in respect of which the proceeding was commenced. If this precondition is not met, the second precondition is irrelevant, and s. 7(5) cannot be invoked.

[96] This raises the question: what is the "matter" or what are the "matters" in respect of which the proceeding was commenced? In my view, the answer to this question is straightforward: the "matter" in this case is the alleged overbilling. Mr. Wellman's class action is about one thing and one thing only — the allegation that TELUS engaged in an undisclosed practice of rounding up calls to the next minute such that class members were overcharged. This is the only "matter" in the proceeding.

[97] This "matter" — alleged overbilling — is dealt with in the arbitration agreements into which both the consumers and business customers entered. Indeed, the arbitration clause is broadly drafted: it covers all claims arising out of or in relation to the contract, with the sole exception of collection actions by TELUS. Alleged overbilling falls squarely within this description. It is not a matter relating to collections; rather, it is a matter relating to how usage was calculated and charged — precisely the type of dispute that the arbitration clause was intended to cover.

[98] Thus, the sole "matter" at issue in the proceeding — alleged overbilling — is dealt with in the arbitration agreements. This means that the precondition in s. 7(5)(a) — that the agreement deal with "only some" of the matters in the proceeding — is not met. Consequently, s. 7(5) cannot be invoked on behalf of the business customers in this case.

[99] I want to be clear about what this conclusion does and does not mean. It does not mean that the proceeding as a whole must be stayed. Because of the Consumer Protection Act, the arbitration agreements entered into by the consumers are invalid to the extent that they would otherwise prevent the consumers from commencing or joining a class action of the kind commenced by Mr. Wellman. The business customers, however, do not qualify as consumers and therefore cannot invoke the Consumer Protection Act's protections. As a result, the business customers remain bound by their arbitration agreements, and since the general rule under s. 7(1) requires a stay of their claims, their claims must be stayed.

[100] In sum, the precondition in s. 7(5)(a) is not met in this case, which means that s. 7(5) cannot be invoked on behalf of the business customers. Consequently, the general rule under s. 7(1) is left intact insofar as the business customers are concerned, and their claims must be stayed.

(4) The Scope of the Stay

[101] The stay, however, must be restricted to the parties who are legally bound by an arbitration agreement — namely, TELUS and the business customers. The consumers, as I noted, are shielded by the Consumer Protection Act from the effect of the arbitration clause, and they remain free to pursue their claims in court.

[102] I pause here to note that there may be class members whose status — consumer or business customer — is not clear-cut. Some people may use their cell phones for both personal and business purposes. For those individuals, there may be a question of whether they qualify as "consumers" under the Consumer Protection Act and are therefore shielded from the effect of the arbitration clause. I will leave that issue for another day, as it was not argued before this Court.

(5) Summary

[103] In summary, s. 7(5) of the Arbitration Act does not permit the court to ignore a valid and binding arbitration agreement. Rather, it allows the court to permit the claims that are not dealt with in the arbitration agreement to proceed in court, while still requiring the court to stay the claims that are dealt with in the agreement.

[104] In this case, the sole "matter" at issue in the proceeding — alleged overbilling — is dealt with in the arbitration agreements into which the consumers and business customers entered. The precondition in s. 7(5)(a) — that the agreement deal with "only some" of the matters in the proceeding — is not met, and s. 7(5) therefore does not apply. The business customer claims must accordingly be stayed under s. 7(1) of the Arbitration Act.

[105] The motions judge and the Court of Appeal erred in law by interpreting s. 7(5) of the Arbitration Act incorrectly and refusing to order a stay that, under s. 7(1), was mandatory. I would allow the appeal, set aside the order of the Court of Appeal, and order that the business customer claims be stayed pending arbitration of those claims.

Dissenting Reasons

The following are the reasons delivered by

Abella and Karakatsanis JJ. (Wagner C.J. and Martin J. concurring) (dissenting) —

I. Introduction

[106] We respectfully dissent. We would dismiss the appeal.

[107] This case is about an arbitration clause in a standard form contract — a classic take-it-or-leave-it agreement — that TELUS imposed on both consumer and business clients to immunize itself from accountability for allegedly cheating customers. The clause requires each individual to pursue any complaint through arbitration at a cost that likely exceeds the claim itself. The individual clients have no ability to aggregate their claims in group arbitration. For them, this arbitration clause is not a bespoke choice designed to facilitate an efficient dispute resolution process: it is an extinction event.

[108] The Ontario legislature, recognizing the access to justice crisis that mandatory arbitration clauses in consumer contracts create, protected consumers from these clauses. But that protection does not explicitly extend to business clients.

[109] The majority holds that because the legislature chose to exempt only consumers from mandatory arbitration clauses, courts have no discretion to allow business clients to pursue their claims in court. We disagree. Where a proceeding includes matters covered by an arbitration agreement and other matters that are not, s. 7(5) of the Arbitration Act, 1991 gives a judge discretion to allow the entire proceeding to continue in court, even if some parties would otherwise be subject to an arbitration clause.

[110] The legislature plainly granted judges discretion over the issue through s. 7(5). In limiting s. 7(5) to apply only where there are both "arbitrable" and "non-arbitrable" matters, the majority has stripped away that discretion. Interpreting s. 7(5) as the majority does would result in the perverse outcome that otherwise arbitrable claims can be joined with a class action only where all class members are, coincidentally, also engaged in some kind of unrelated business with the defendant. This is difficult to reconcile with the obvious purpose of the provision.

II. Analysis

A. Text of Section 7(5)

[111] Section 7(5) of the Arbitration Act reads 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.

[112] The opening word "may" signals a discretionary power. The words that follow — "stay the proceeding with respect to the matters dealt with in the arbitration agreement and allow it to continue with respect to other matters" — describe the kind of order a court can make: a partial stay. But the word "may" confers the overall discretion, which logically includes the power to decline to make such an order. As a matter of statutory interpretation, when a court is given the power to make a particular type of order, that power implies the discretion to decline to exercise it.

[113] Section 7(5) reflects an explicit legislative intention to override an otherwise applicable arbitration clause. The words of the provision state that "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". This means that the court can either stay the arbitrable matters before it or allow them to proceed. Logically, a discretionary ability to grant a partial stay also includes the power to refuse a partial stay. The only interpretation that gives meaningful effect to the discretionary language of s. 7(5) is one that confers on judges the ability to allow both arbitrable and non‑arbitrable disputes to proceed in court.

[114] An assertion that a court can never stay arbitrable matters under s. 7(5) renders the opening phrase — "may stay the proceeding with respect to the matters dealt with in the arbitration agreement" — superfluous. By interpreting the provision to apply only to non‑arbitrable matters, s. 7(5) adds nothing to a judge's existing discretion.

B. Scheme and Purpose of the Arbitration Act

[115] Ontario's Arbitration Act, 1991 was enacted to allow parties to design their own settlement processes and resolve their disputes outside the courts. It anticipated two or more parties freely negotiating their arbitral process. To ensure expedient resolution and lower litigation costs, the Arbitration Act, 1991 limited court intervention in arbitrable disputes. But it also gave judges discretion to permit court proceedings in certain limited circumstances, such as where the arbitration agreement was manifestly unfair.

[116] Where a proceeding includes both matters covered by an arbitration agreement and other matters that are not, s. 7(5) gives a judge discretion to allow the entire proceeding to continue in court, even if some parties would otherwise be subject to an arbitration clause. Since 2002, the Ontario Court of Appeal has interpreted s. 7(5) as granting the discretion to stay matters that would otherwise be subject to arbitration. Similarly, for nearly a decade, the Ontario Court of Appeal has interpreted s. 7(5) as permitting otherwise arbitrable matters to be joined with class actions in the public interests of avoiding duplicative proceedings, increased costs, and the risk of inconsistent results. This interpretation aligns with the text and scheme of the provisions and is consistent not only with the purposes motivating the enactment of the Arbitration Act, 1991 but also with the purpose of s. 7(5) itself.

[117] The overall purpose of the Arbitration Act, 1991 was to promote access to justice. Its chosen means of achieving that goal was to promote accessibility by giving parties the choice of resolving disputes outside the court system. The reason for creating this option was a recognition that the court system could be costly and slow. The courts' discretion to intervene in arbitrable matters was therefore narrowed to further the goals of expedient dispute resolution.

C. The Matter in Dispute

[118] In our view, the majority is incorrect in its interpretation of what constitutes the "matters" in dispute in this proceeding. The majority holds that the sole "matter" is the alleged overbilling, and that this single matter is dealt with in the arbitration agreements entered into by both consumers and business customers. Under s. 7(5)(a), the agreement must deal with "only some" of the matters in the proceeding. The majority holds that because the sole matter — overbilling — is covered by the arbitration clause, the first precondition of s. 7(5) is not met, and s. 7(5) therefore cannot apply at all.

[119] We disagree. The "matters" dealt with in the arbitration agreement are the claims of the business customers. The claims of the consumers are "other matters" which are not subject to the arbitration clause, by reason of the Consumer Protection Act. Therefore, the arbitration agreement deals with "only some" of the matters in the proceeding — namely, the business customer claims — and s. 7(5)(a) is satisfied.

[120] This reading is consistent with how the courts below characterized the "matters" in the proceeding. It also accords with the purpose of s. 7(5), which is to allow courts to deal flexibly with proceedings that include both arbitrable and non-arbitrable matters.

[121] Even the majority acknowledges that the effect of the Consumer Protection Act is to make the arbitration clause invalid as against the consumers. If the arbitration clause is invalid as against the consumers, then the consumer claims are simply not subject to the arbitration clause — they are not "matters dealt with in the arbitration agreement." From the perspective of the consumers, it is as if there were no arbitration clause at all. The consumer claims are therefore "other matters" not dealt with in the arbitration agreement.

[122] This means that the proceeding includes both matters dealt with in the arbitration agreement (the business customer claims) and matters not dealt with in the arbitration agreement (the consumer claims). The first precondition in s. 7(5)(a) — that the agreement deal with "only some" of the matters — is therefore satisfied.

D. Exercise of Discretion

[123] The question then becomes whether it is reasonable to separate the matters dealt with in the agreement (the business customer claims) from the other matters (the consumer claims). Under s. 7(5)(b), this is a question of reasonableness that falls within the judge's discretion.

[124] The motions judge considered the following factors:

• the class members' claims arise from the same facts, involve the same legal issues and require the same evidence;
• similar findings would need to be made;
• separate proceedings would result in increased costs;
• there is a risk of inconsistent findings;
• the claims of consumers and non-consumers are inextricably linked and mixed; and
• the ability of each of the members of the class to individually vindicate their rights would not justify the cost of arbitration.

[125] Based on these factors, she concluded that it would not be reasonable to separate the consumer claims from the business customer claims, and she declined to stay the business customer claims.

[126] In our view, the motions judge's exercise of discretion was proper and should not be disturbed on appeal. The factors she identified — the same facts, the same legal issues, the same evidence, the risk of inconsistent findings, and the inability to individually vindicate rights — are exactly the kinds of considerations that s. 7(5)(b) directs courts to consider.

E. Historical Context and Interpretation

[127] We would note that the decision to include s. 7(5) in the Arbitration Act was not made in a vacuum. The Ontario Law Reform Commission's Report on the Commercial Arbitration Act noted that the pre-existing legislation — the Arbitrations Act, R.S.O. 1980, c. 25 — created a gap when a proceeding involved matters both inside and outside an arbitration agreement. Section 7(5) was designed to fill this gap.

[128] Specifically, before the enactment of s. 7(5), courts were forced to either stay the entire proceeding (including the non-arbitrable matters) or allow the entire proceeding to continue (including the arbitrable matters). Section 7(5) was designed to give courts the flexibility to deal with the non-arbitrable matters in court while staying the arbitrable matters — but also, where appropriate, to allow all of the matters to proceed in court. This historical context supports an interpretation of s. 7(5) that confers broad judicial discretion.

[129] It is true that the majority's interpretation of s. 7(5) is linguistically plausible. But, as we shall explain, it produces anomalous results that are inconsistent with the purpose of the provision.

[130] The majority's interpretation would mean that s. 7(5) applies only where a single proceeding involves claims that are entirely different in subject matter — where some claims are covered by an arbitration clause and other claims are not covered at all. The classic example would be a proceeding where one claim arises out of a contract with an arbitration clause and another claim arises out of an entirely separate matter with no arbitration clause. In that scenario, s. 7(5)(a) would be satisfied because the arbitration clause deals with only some of the matters in the proceeding.

[131] But the majority's interpretation would never apply in the context of a class action where all class members are advancing claims of the same type — as in this case — unless some class members happened to be in some entirely separate and unrelated business relationship with the defendant. This cannot have been the intent of the legislature when it enacted s. 7(5).

[132] We note that the Ontario Court of Appeal has consistently interpreted s. 7(5) as applying in the context of class actions where some class members are bound by arbitration clauses and others are not. This interpretation of s. 7(5) has been followed in Ontario for nearly two decades. It represents a settled and workable rule of law. We would not disturb it.

F. Access to Justice

[133] The parties agree that the practical effect of the majority's interpretation will be that virtually no business client of TELUS will ever be able to pursue a claim against TELUS for the alleged overbilling. The cost of pursuing an individual arbitration exceeds the value of most individual claims. TELUS itself acknowledged this.

[134] The majority says this is a policy concern that is for the legislature, not the courts, to address. With respect, this argument misses the point. The issue is not whether courts should override the will of the legislature on policy grounds. Rather, the issue is whether s. 7(5), properly interpreted, gives courts discretion to avoid this outcome. We say it does.

[135] The legislature enacted s. 7(5) precisely to give courts flexibility in dealing with proceedings that involve both arbitrable and non-arbitrable matters. By interpreting s. 7(5) narrowly, the majority effectively strips courts of this discretion in the context of class actions — which is precisely the context in which this discretion is most needed.

[136] One cannot talk about "equal bargaining power" and "party autonomy" if the very nature of the contract reveals that one party has exclusive contractual authority. Parties to mandatory individual arbitration clauses cannot reasonably be said to have "come to the table" and bargained, since there is no bargaining table. That individuals and companies sign these contracts is a function not of bargaining choices, but of an absence of choice.

[137] All of TELUS's clients — both business and consumer — signed the same, non‑negotiable standard form agreement. TELUS's individualized arbitration clause effectively precludes access to justice for business clients when a low‑value claim does not justify the expense. And its mandatory nature illustrates that the animating rationales of party autonomy and freedom of contract are nowhere to be seen.

G. The Consumer Protection Act

[138] The majority says that the legislature made a deliberate choice to protect only consumers from mandatory arbitration clauses, and that this choice must be respected. We agree that the legislature made this choice — but we disagree about its implications.

[139] The Consumer Protection Act protects consumers from mandatory arbitration clauses. It does not say anything about whether courts have discretion under s. 7(5) of the Arbitration Act to allow business clients' claims to proceed in court. These are two separate questions. The Consumer Protection Act is directed at the validity of the arbitration clause as against consumers; s. 7(5) is directed at the court's discretion to manage proceedings that involve both arbitrable and non-arbitrable matters.

[140] In other words, the existence of the Consumer Protection Act does not answer the question of what s. 7(5) means. It is entirely consistent with the Consumer Protection Act's protection of consumers to also give courts discretion under s. 7(5) to allow business clients' claims to proceed in court where it would be unreasonable to separate them from the consumer claims.

[141] The majority's approach treats the Consumer Protection Act as exhaustive of the ways in which business clients can pursue their claims in court. But the Consumer Protection Act and s. 7(5) operate independently of each other. The Consumer Protection Act is not exhaustive on this point; it does not purport to define the limits of judicial discretion under s. 7(5).

H. Statutory Interpretation and the Rule Against Surplusage

[142] The majority says that, on our interpretation, the word "stay" in the opening phrase of s. 7(5) — "The court may stay the proceeding with respect to the matters dealt with in the arbitration agreement" — is superfluous, because the court already has the power to stay proceedings under s. 7(1).

[143] We disagree. The opening phrase of s. 7(5) is not superfluous; it serves to describe the type of order the court can make under s. 7(5) — a partial stay — as opposed to a full stay under s. 7(1) or a refusal to stay under s. 7(2). In other words, the phrase clarifies what the court is authorized to do if it decides to exercise the discretion conferred by the word "may." It does not eliminate the discretion.

[144] Moreover, even if one were to accept the majority's argument about surplusage, the word "may" would equally be superfluous under the majority's interpretation. If s. 7(5) merely authorizes a partial stay — and nothing else — then the word "may" adds nothing, because the partial stay is only available when the two preconditions are met. Under the majority's interpretation, whenever the preconditions are met, the court must grant the partial stay; there is no residual discretion. But that contradicts the plain meaning of "may."

[145] We prefer an interpretation that gives effect to both the word "may" and the phrase "may stay the proceeding with respect to the matters dealt with in the arbitration agreement." On our interpretation, the word "may" confers the discretion, and the rest of the opening phrase describes the kind of order the court can make. Both parts of the provision are given meaning.

I. Conclusion on Section 7(5)

[146] For these reasons, we conclude that s. 7(5) of the Arbitration Act gives courts discretion to allow the entire proceeding — including matters that are subject to an arbitration clause — to continue in court, where it would be unreasonable to separate those matters from the non-arbitrable matters.

[147] Applying this interpretation to the facts of this case, we agree with the courts below that it would not be reasonable to separate the business customer claims from the consumer claims. The business customer claims and the consumer claims arise from the same facts, involve the same legal issues, require the same evidence, and a determination of one would largely determine the other. Proceeding in two parallel forums — court and arbitration — would result in duplicative proceedings, increased costs, and the risk of inconsistent findings.

[148] We would therefore dismiss the appeal.

III. Consequences of the Majority's Interpretation

[149] We wish to add a few words about the consequences of the majority's interpretation.

[150] Under the majority's interpretation, a class action that includes both arbitrable and non-arbitrable matters will almost never satisfy s. 7(5)(a)'s precondition, because the subject matter of the claims will typically be the same — as in this case. This means that the court will almost never have discretion under s. 7(5) to allow the arbitrable claims to proceed in court.

[151] The only way to satisfy s. 7(5)(a) under the majority's interpretation in a class action context would be if some class members have claims that are entirely unrelated to the arbitration clause — claims arising out of a different contract or a different subject matter. This seems unlikely to arise in practice and cannot have been what the legislature intended when it enacted s. 7(5).

[152] In effect, the majority's interpretation renders s. 7(5) a dead letter in the class action context. This cannot have been the legislature's intent.

[153] We note that courts in Ontario have been applying Griffin's interpretation of s. 7(5) for nearly two decades. This has created a settled body of law that parties have relied upon. We should be cautious about overturning a well-established interpretation, particularly where there is no clear legislative signal that the existing interpretation is incorrect.

[154] We are also concerned about the practical consequences of the majority's interpretation for access to justice. As we have noted, mandatory arbitration clauses in standard form contracts can effectively prevent individuals and businesses from pursuing low-value claims. By eliminating the court's discretion to allow those claims to proceed in court where it would be unreasonable to separate them from non-arbitrable claims, the majority's interpretation strengthens the ability of businesses to use mandatory arbitration clauses to avoid accountability.

[155] The majority says this is a policy concern that is for the legislature to address. But we are not simply making a policy argument. We are arguing that s. 7(5), properly interpreted, already gives courts discretion to address this concern. By interpreting s. 7(5) narrowly, the majority eliminates a discretion that the legislature granted to courts.

The Irony of the Majority's Access to Justice Concerns

[156] The majority expresses concern about the importance of promoting access to justice but says this objective cannot overwhelm the other objectives of the Arbitration Act. We agree that access to justice is not the only objective of the Arbitration Act. But we note the irony: by interpreting s. 7(5) narrowly, the majority produces a result that dramatically restricts access to justice for the very class of individuals the provision was intended to protect.

[157] The majority relies heavily on the concept of party autonomy — the idea that parties should be held to their contracts. But party autonomy presupposes that both parties had a meaningful choice. In the case of standard form contracts, the weaker party has no choice but to accept the terms dictated by the stronger party. The majority's interpretation allows businesses to use mandatory arbitration clauses to insulate themselves from accountability, not because both parties freely chose arbitration, but because the weaker party had no choice.

[158] This is not to say that courts should always override arbitration clauses in standard form contracts. The Consumer Protection Act reflects a legislative judgment that consumers deserve special protection. But the Consumer Protection Act does not foreclose the possibility that courts may have discretion under s. 7(5) to protect business clients in appropriate circumstances.

[159] We note that this case is not the appropriate occasion to address whether standard form arbitration clauses — those that are truly contracts of adhesion — are enforceable at all. That question may arise in the context of the Heller case, which has been referred to in these reasons. For present purposes, we simply observe that the majority's interpretation of s. 7(5) removes an important tool from the courts' arsenal for dealing with the access to justice problems that these clauses create.

Standard Form Contracts and Arbitration

[160] We add that the policy concerns underlying this case go beyond the specific context of class actions. Standard form contracts — and the mandatory arbitration clauses they typically contain — are increasingly common in both consumer and commercial settings. These clauses are particularly problematic in the context of low-value claims, where the cost of arbitration exceeds the value of the claim. For such claims, mandatory arbitration effectively denies access to justice.

[161] As J.B. Casey noted in Arbitration Law of Canada: Practice and Procedure:

The original arbitration policy . . . proceeded from the assumption that sophisticated disputants with relatively equal bargaining power would collaborate to design their own resolution process. Inherent in this policy was the goal of empowering disputants and giving them more control over dispute resolution while facilitating international trade.

(Shelley McGill, "The Conflict Between Consumer Class Actions and Contractual Arbitration Clauses" (2006), 43 Can. Bus. L.J. 359, at p. 365)

[162] The standard terms of TELUS's contract did not permit group arbitration, but required individualized arbitration proceedings for each complaint. The impact of not permitting group proceedings was discussed by the Court of Appeal in Griffin:

It is important to note . . . that Dell's arbitration clause not only requires all claims to be arbitrated, but also provides that "[t]he arbitration will be limited solely to the dispute or controversy between Customer and Dell", thereby precluding the possibility of a class arbitration. I would have found Dell's position much more persuasive had Dell been prepared to submit to an arbitration that would allow for the efficient adjudication of the claims on a group or class basis . . . . In my view, this provides further evidence . . . that Dell does not genuinely seek to have the claims advanced against it determined by way of arbitration. Dell is simply seeking to exploit the inefficiency of arbitrating individual claims. [Emphasis added; para. 60.]

[163] The empirical reality is that the effect of mandatory arbitration clauses is to deny access to justice in the context of low-value claims. As Prof. Cynthia Estlund points out,

. . . the great bulk of disputes that are subject to mandatory arbitration agreements . . . simply evaporate before they are even filed. It is one thing to know that mandatory arbitration draws a thick veil of secrecy over cases that are subject to that process. It is quite another to find that almost nothing lies behind that veil. Mandatory arbitration is less of an "alternative dispute resolution" mechanism than it is a magician's disappearing trick or a mirage. Metaphors beckon, but I have opted for that of the black hole into which matter collapses and no light escapes.

(Cynthia Estlund, "The Black Hole of Mandatory Arbitration" (2018), 96 N.C. L. Rev. 679, at p. 682)

[164] The Court of Appeal in Griffin recognized this reality when it observed:

The seller's stated preference for arbitration is often nothing more than a guise to avoid liability for widespread low-value wrongs that cannot be litigated individually but when aggregated form the subject of a viable class proceeding: see Theodore Eisenberg, Geoffrey P. Miller and Emily Sherwin, "Mandatory Arbitration for Customers but not for Peers: A Study of Arbitration Clauses in Consumer and Non-Consumer Contracts" (2008), 92 Judicature 118. [Emphasis added; para. 30.]

[165] All of TELUS's clients — both businesses and consumers — signed the same, non-negotiable standard form agreement. TELUS's individualized arbitration clause effectively precludes access to justice for business clients when a low‑value claim does not justify the expense. And its mandatory nature, in turn, illustrates that the animating rationales of party autonomy and freedom of contract are nowhere to be seen. As the court in Griffin stated:

Deference to arbitration is largely based on freedom of contract and the value of personal autonomy. How can such values come into play in contracts of adhesion where that autonomy is only exercised by one of the parties? There is no reason to defer to businesses that seek to advance only their own self-interests and evade laws not to their liking. [para. 30]

(Citing Jonnette Watson Hamilton, "Pre-Dispute Consumer Arbitration Clauses: Denying Access to Justice?" (2006), 51 McGill L.J. 693, at p. 734.)

[166] One cannot talk about "equal bargaining power" and "party autonomy" if the very nature of the contract reveals that one party has exclusive contractual authority. Parties to mandatory individual arbitration clauses cannot, therefore, reasonably be said to have "come to the table" and bargained, since there is no bargaining table. That individuals and companies sign these contracts is a function not of bargaining choices, but of an absence of choice.

[167] Perhaps the most ironic contradiction of refusing to acknowledge the discretion embodied in s. 7(5) is its corrosive effect on access to justice. The purpose of the Arbitration Act, 1991, was to facilitate the ability of parties to negotiate their own process for resolving disputes outside of the courts, on the premise that access to justice had as much to do with access to a result as with access to a judge. To impose arbitration on unwilling parties violates the spirit of the Arbitration Act, 1991 and the arbitral process. This operates as an invisible but formidable barrier to a remedy and presumptively immunizes wrongdoing from accountability contrary to our most fundamental notions of civil justice.

[168] The concurring judge in the Court of Appeal expressed concern that using s. 7(5) to override otherwise valid arbitration clauses could result in sophisticated parties sidestepping arbitration agreements by including a few consumers in a class action alongside numerous business clients. However, experience teaches us that this is anxiety without a cause. There are no known cases where such a ruse has been attempted in Canadian courts. That does not mean it could never happen, but such gossamer speculation cannot drive statutory interpretation.

[169] In any event, such concerns are mitigated by the fact that the availability of judicial discretion in s. 7(5) does not require judges to allow a class action including arbitrable claims to proceed: it simply lets them decide when it is reasonable to do so. Eliminating judicial discretion, on the other hand, effectively eliminates access to justice.

[170] In this light, s. 7(5) must be interpreted to give judges the discretion to refuse to stay arbitrable claims if it is unreasonable to separate them from non-arbitrable claims. This interpretation applies with equal force whether the proceeding is between two or more named parties, or is a class action.

[171] TELUS's arbitration agreement "deals with only some of the matters in respect of which the proceeding was commenced", namely, the claims of business customers. The consumer claims are "other matters" which are not subject to arbitration. Therefore, s. 7(5)(b) gave the motions judge discretion to consider whether it was "reasonable to separate the matters dealt with in the agreement [the claims of business customers] from the other matters [the consumer claims]".

[172] In our view, the discretion in this case was properly exercised to allow the business claims to be joined with the consumer class action dealing with the same issues. We would therefore dismiss the appeal.

Appeal allowed, Wagner C.J. and Abella, Karakatsanis and Martin JJ. dissenting.

Solicitors for the appellant: Fasken Martineau DuMoulin, Vancouver; TELUS Communications Inc., Vancouver.

Solicitors for the respondent: Rochon, Genova, Toronto; Morganti & Co., Toronto.

Solicitor for the intervener the Attorney General of British Columbia: Attorney General of British Columbia, Victoria.

Solicitors for the intervener ADR Chambers Inc.: Bennett Jones, Toronto.

Solicitors for the intervener the Canadian Chamber of Commerce: McCarthy Tétrault, Toronto.

Solicitors for the interveners the Public Interest Advocacy Centre and the Consumers Council of Canada: Sotos, Toronto.

Solicitor for the intervener the Canadian Federation of Independent Business: Canadian Federation of Independent Business, Ottawa.

Solicitor for the intervener Samuelson‑Glushko Canadian Internet Policy and Public Interest Clinic: University of Ottawa, Ottawa.

Solicitors for the intervener the Consumers' Association of Canada: Siskinds, Toronto; Michael Sobkin, Ottawa.

[^1]: Unless indicated otherwise, all section number references are to the Arbitration Act.

[^2]: Mr. Wellman in fact sued three defendants — TELUS, TELUS Communications Company, and Tele-Mobile Company — but TELUS is the only remaining defendant, as the other two have ceased to exist and their assets and liabilities have been transferred to TELUS.

[^3]: Another proposed class action, commenced by Jason Corless, advances substantially similar allegations against Bell Mobility Inc., and the certification application in that action was heard together with the application in the TELUS litigation. This appeal does not concern the Bell action.

[^4]: TELUS also sought leave to appeal the certification order to the Divisional Court. That motion was dismissed (see Corless v. Bell Mobility Inc., 2015 ONSC 7682). The Divisional Court's decision is not challenged in this appeal, nor are the merits of Mr. Wellman's allegations in the underlying class action.

[^5]: The representative plaintiff who qualified as a "consumer" was added only after certification was granted (see Griffin, at para. 2).

[^6]: As the Alberta Law Reform Institute observes, "the [Uniform Law Conference of Canada] materials do not discuss or even mention section 7(5)'s intended purpose, meaning or effect" (para. 34, citing Uniform Law Conference of Canada, Proceedings of the Seventy-first Annual Meeting (August 1989), at pp. 77-78 and Appendix B; Uniform Law Conference of Canada, Proceedings of the Seventy-second Annual Meeting (August 1990), at p. 36 and Appendix A).

[^7]: "Supplier" is defined in s. 1 as "a person who is in the business of selling, leasing or trading in goods or services".

[^8]: Elmer Driedger in Construction of Statutes (2nd ed. 1983), at p. 87, cited in Rizzo & Rizzo Shoes Ltd. (Re), 1998 CanLII 837 (SCC), [1998] 1 S.C.R. 27, at para. 21.