Michelle Seidel Appellant v. TELUS Communications Inc., 2011 SCC 15

SUPREME COURT OF CANADA Citation: Seidel v. TELUS Communications Inc., 2011 SCC 15, [2011] 1 S.C.R. 531 Date: 20110318 Docket: 33154 Between: Michelle Seidel Appellant and TELUS Communications Inc. Respondent - and - Barreau du Québec, Canadian Arbitration Congress and ADR Chambers Inc. Interveners Coram: McLachlin C.J. and Binnie, LeBel, Deschamps, Fish, Abella, Charron, Rothstein and Cromwell JJ.

Reasons for Judgment: (paras. 1 to 51) Joint Dissenting Reasons: (paras. 52 to 176) Binnie J. (McLachlin C.J. and Fish, Rothstein and Cromwell JJ. concurring) LeBel and Deschamps JJ. (Abella and Charron JJ. concurring) Seidel v. TELUS Communications Inc. , 2011 SCC 15, [2011] 1 S.C.R. 531 Michelle Seidel Appellant v. TELUS Communications Inc. Respondent and Barreau du Québec, Canadian Arbitration Congress

and ADR Chambers Inc. Interven ers Indexed as: Seidel v. TELUS Communications Inc. 2011 SCC 15 File No.: 33154. 2010: May 12; 2011: March 18. Present: McLachlin C.J. and Binnie, LeBel, Deschamps, Fish, Abella, Charron, Rothstein and Cromwell JJ. on appeal from the court of appeal for british columbia Consumer protection — Contracts — Arbitration — Class actions — Stay of proceedings — Cell phone service contract containing private and confidential mediation and arbitration and class action waiver clause — Customer filing claim in B.C.

Supreme Court for declaratory and injunctive relief alleging cell phone service provider engaged in deceptive and unconscionable practices — Customer seeking relief as individual and as representative of class — Cell phone company obtaining stay of proceedings under Commercial Arbitration Act — British Columbia Business Practices and Consumer Protection Act (BPCPA) stating agreements waiving or releasing rights, benefits or protections under the Act are void — Whether BPCPA renders arbitration clause void such that the stay of the court proceedings should be lifted — Business Practices and Consumer Protection Act, S.B.C. 2004, c. 2, ss. 3 , 171 , 172 — Commercial Arbitration Act, R.S.B.C. 1996, c. 55, s. 15 .

Arbitration — Competence-competence principle — Effect of arbitration clause on jurisdiction of court — Customer signing contract with mobile phone service provider containing mandatory mediation and arbitration clause — Customer filing claim in B.C. Supreme Court for declaratory and injunctive relief under the Business Practices and Consumer Protection Act — Whether question of jurisdiction should be determined by court or arbitrator — Business Practices and Consumer Protection Act, S.B.C. 2004, c. 2, ss. 3 , 171 , 172 — Commercial Arbitration Act, R.S.B.C. 1996, c. 55, s. 22 .

TELUS and S entered into a written cellular phone services contract in 2000. The standard form contract included a clause referring disputes to private and confidential mediation and arbitration. It further purported to waive any right to commence or participate in a class action.

By statement of claim filed in the Supreme Court of British Columbia, S asserted a variety of claims, including (but not limited to) statutory causes of action under the Business Practices and Consumer Protection Act ( BPCPA ), alleging that TELUS falsely represented to her and other consumers how it calculates air time for billing purposes. She sought remedial relief under ss. 171 and 172 of the BPCPA in respect of what she contends are deceptive and unconscionable practices, as well as certification to act on her own behalf and as representative of a class of allegedly overcharged customers.

In the course of S’s application to have her claim certified as a class action, TELUS applied for a stay of all proceedings on the basis of the arbitration clause, pursuant to s. 15 of the Commercial Arbitration Act . The trial judge denied TELUS’s application finding it was premature to determine whether the action should be stayed until the certification application had been decided. Applying the competence-competence principle, the Court of Appeal held that S was bound by the arbitration clause contained in the contract of adhesion in respect of all claims.

In the result, the Court of Appeal allowed the appeal and entered a stay of S’s action in its entirety, holding that it is for the arbitrator to determine which claims are subject to arbitration and which should go before a court. Held (LeBel, Deschamps, Abella and Charron JJ. dissenting): The appeal should be allowed in part, and the stay lifted in relation to the s. 172 claims. Per McLachlin C.J. and Binnie, Fish, Rothstein and Cromwell JJ.: The purpose of the BPCPA is consumer protection. As such, its terms should be interpreted generously in favour of consumers.

Section 172 of the BPCPA contains a statutory remedy whereby a person other than a supplier may bring an action in the Supreme Court of British Columbia to enforce the statute’s consumer protection standards whether or not the person bringing the action has a special interest or is affected by the consumer transaction that gives rise to the action. Such a plaintiff is properly characterized as a public interest plaintiff. This conclusion is reinforced by s. 3 of the BPCPA which provides that any agreement between parties that would waive or release “rights, benefits or protections” conferred by the BPCPA is void.

To the extent S’s claim in the Supreme Court invokes s. 172 remedies in respect of rights, benefits or protections conferred by the BPCPA , her court action must be allowed to proceed notwithstanding the mediation/arbitration clause. The choice to restrict or not restrict arbitration clauses in consumer contracts is a matter for the legislature. Absent legislative intervention, the courts will generally give effect to the terms of a commercial contract freely entered into, even a contract of adhesion, including an arbitration clause.

Section 172 is clearly designed to encourage private enforcement in the public interest. It was open to the legislature to prefer the vindication and denunciation available through a well-publicized court action to promote adherence to consumer standards. The legislature understood that the policy objectives of s. 172 would not be well served by a series of isolated low-profile, private and confidential arbitrations. A proper

interpretation of s. 172 of the BPCPA must be approached textually, contextually and purposively. Whether characterized as procedural or substantive, a s. 172 right is indubitably a “right” conferred by the statute and cannot be waived by contract. S therefore possesses a statutory “right” to take her action invoking s. 172 remedies to the Supreme Court. As to her alternative complaints, however, whether under other sections of the BPCPA , the now repealed Trade Practice Act , or at common law, the TELUS arbitration clause is valid and enforceable.

Accordingly, S’s court action in these respects should be stayed pursuant to s. 15 of the Commercial Arbitration Act . The class action waiver is not severable from the arbitration clause as a whole. Accordingly, it is also rendered void by s. 3 of the BPCPA . If there is any ambiguity in the TELUS clause, it must be resolved in favour of S’s right of access to the court by the principles of contra proferentum . Accordingly, S is not barred from continuing to seek certification of her s. 172 claims as a class action .

As for the procedural issues raised in this appeal, British Columbia has adopted the competence-competence principle through the combined operation of s. 22 of the Commercial Arbitration Act and Rule 20(2) of the Rules of the British Columbia International Commercial Arbitration Centre (“BCICAC Rules”) .

Absent legislated exception, any challenge to an arbitrator’s jurisdiction over S’s dispute with TELUS should first be determined by the arbitrator, unless the challenge were to involve a pure question of law, or one of mixed fact and law that requires for its disposition “only superficial consideration of the documentary evidence in the record”. Whether or not s. 172 of the BPCPA has the legal effect claimed for it by S was a question of law to be determined on undisputed facts.

This matter was properly entertained by the Supreme Court in the first instance, and the competence-competence principle was not violated. Per LeBel, Deschamps, Abella and Charron JJ. (dissenting): Absent a clear statement by the legislature of an intention to the contrary, a consumer claim that could potentially proceed either by way of arbitration or class action must first be submitted to arbitration. The BPCPA does not manifest explicit legislative intent to foreclose the use of arbitration as a vehicle for the resolution of disputes under that Act in British Columbia.

As such, a clause in a standard form consumer contract for the supply of mobile phone services, which mandates that all disputes with the service provider be resolved by way of arbitration displaces the availability of class proceedings in the province of British Columbia. Canadian courts, both in Quebec and in the common law jurisdictions, have endorsed the use of arbitration as a dispute resolution mechanism and now encourage its use.

Lower courts across Canada swiftly followed this Court’s lead in accepting and endorsing arbitration as a legitimate dispute resolution mechanism, and this shift in attitude where there is no longer hostility towards arbitration clearly took root. It is now settled that if a legislature intends to exclude arbitration as a vehicle for resolving a particular category of legal disputes, it must do so explicitly. In British Columbia, the current approach to arbitration was adopted with the enactment of the Commercial Arbitration Act .

British Columbia’s modern commercial arbitration legislation was influenced in part by the UNCITRAL Model Law on International Commercial Arbitration and the legislature clearly intended to incorporate the competence-competence principle into the province’s domestic arbitration legislation. Challenges to the arbitrator’s jurisdiction — namely arguments that an agreement is void, inoperative or incapable of being performed — should be resolved first by the arbitrator.

A court should depart from this general rule only if the challenge is based on a question of law, or on questions of mixed fact and law that require only superficial consideration of the documentary evidence in the record, and is not merely a delaying tactic. This requirement of deference to the arbitrator’s jurisdiction is related directly to the role of the court that must, in considering an application for a stay of proceedings, determine whether the agreement is “void, inoperative or incapable of being performed”, which must be narrowly construed. Courts should therefore be mindful to avoid an

interpretation that makes it possible to sidestep the competence-competence principle and turns the “inoperative” exception into a back door for a party wanting to “escape” the agreement. The British Columbia Court of Appeal recognized that the competence-competence principle is part of the province’s law. It did not err in doing so.

Therefore, absent a challenge to the arbitrator’s jurisdiction based solely on a question of law or on one of mixed fact and law requiring only superficial consideration of the evidence in the record, the existence or validity of an arbitration agreement to which the Commercial Arbitration Act applies must be considered first by the arbitrator and the court should grant the stay. S argues that the effect of the arbitration clause is to deny her the exercise of her rights under the BPCPA .

The purpose of consumer protection legislation like the BPCPA is to protect consumers from losses suffered when they purchase goods and services that do not meet existing standards. Class actions have a significant social and legal role in Canadian law. However, since a class action is only a way to group together a number of individual claims, it concerns the procedure for bringing an action. As this Court has put it, the certification of a class action confers a procedural right. It does not change either the substantive law or the substantive rights of the parties.

Where a court would, because of an arbitration agreement, not have jurisdiction over a dispute, that jurisdiction cannot be conferred on it by commencing a class proceeding. In British Columbia, no explicit legislative direction has been enacted which would remove consumer disputes from the reach of arbitration legislation. S nevertheless argues that an arbitrator lacks the jurisdiction to grant either of the specific remedies contemplated in s. 172 of the BPCPA .

She submits that these remedies can be granted only by the Supreme Court and, therefore, that s. 172(1) itself creates a substantive right to have a dispute resolved in the public court system. As a result, the agreement to submit this dispute to arbitration constitutes a waiver — in violation of s. 3 of the BPCPA — of the substantive right to those particular remedies. In light of ss. 171 and 172 and of the powers conferred on arbitrators in British Columbia, it is evident that the legislature has not barred the submission of such claims to arbitration.

The remedy sought by a claimant under s. 172 is a declaration or an injunction. Either an arbitrator or a court can adjudicate a monetary claim under s. 171 . What is important here is that the adjudicator has jurisdiction to make a declaration or order an injunction, which are the same remedies as are contemplated in s. 172 . Arbitrators exercising their jurisdiction under arbitration legislation are generally understood to have jurisdiction to make any award a court could make. But the British Columbia legislation goes further, as it explicitly grants arbitrators broad remedial powers.

An arbitrator deriving his or her authority from the Commercial Arbitration Act , and by extension from the BCICAC Rules, also has broad remedial powers including injunctions and other equitable remedies and the arbitrator can therefore, unless the parties have agreed otherwise, grant the declaratory and injunctive relief sought by S under ss. 172(1) (

a) and (

b) of the BPCPA . Access to justice is protected both by the broad powers given to arbitrators and by the representative action provided for in the BPCPA . Although third party consumers would not be bound by the arbitrator’s order, TELUS would be bound by it. There is no requirement that the arbitral award itself, which would incorporate the remedy S seeks, be private and confidential. Therefore, an arbitrator could order a supplier, in this case TELUS, to advertise the particulars of any order or award granted against it to the public at large. This would fulfill a public purpose.

Given their broad remedial powers, arbitrators are authorized to grant this very public remedy. The reference in s. 172 to the Supreme Court as the forum in which claims may be brought does not confer exclusive jurisdiction on that court to adjudicate claims under that section. The purpose of that reference is to clarify that the Supreme Court, not the Provincial Court, may grant declaratory and injunctive relief. Further, the use of the word “may” makes it even clearer that the Supreme Court is not intended to be the only forum in which these remedies can be sought.

By enacting s. 172, the legislature provided a means not only to have claims dealt with by the director or any person, both of whom seek orders on behalf of consumers, but also to have the arbitration rules apply. In doing so, it provided a way to use the private dispute resolution system to obtain the same declaratory or injunctive relief against a supplier as can be obtained by means of a class action. Access to justice can only be enhanced by this approach.

Any argument based on the view that access to justice requires claims based on s. 172 of the BPCPA to be made by way of aclass proceeding is without merit. Access to justice is fully preserved by arbitration, and there is no need to resort to a class proceedingto so ensure. The arbitrator can grant the remedies contemplated in s. 172 of the BPCPA against TELUS. The arbitration agreementbetween S and TELUS does not therefore constitute an improper waiver of S’s rights, benefits or protections for the purposes of s. 3 ofthat Act.

Section 172 of the BPCPA merely identifies the procedural forum in which an action with respect to the rights, benefits andprotections provided for in s. 3 may be brought in the public court system. It does not explicitly exclude alternate fora, such as anarbitration tribunal, from acquiring jurisdiction. Whether an arbitration clause in a consumer contract is unfair or unconscionable must always be determined on acase-by-case basis in light of the relevant facts.

In Canada, the courts have left the question whether arbitration is appropriate forparticular categories of disputes to the discretion of the legislatures. The British Columbia legislature remains free to address anyunfairness or harshness that might be perceived to be imposed as a result of the inclusion of arbitration clauses in commercial contracts. The legislatures of Quebec, Ontario and Alberta have seen fit to amend their consumer protection legislation to prohibit or limit waiversof class proceedings and arbitration clauses in agreements to which their consumer protection legislation applies.

The British Columbialegislature made a choice both by incorporating the provisions of the Convention on the Recognition and Enforcement of ForeignArbitral Awards and the UNCITRAL Model Law on International Commercial Arbitration and by refraining from enacting provisionsexpressly limiting arbitration clauses and waivers of class proceedings in the consumer context. It also made another choice: to conferbroad remedial jurisdiction on arbitrators. These choices are ones to which this Court must defer. Cases Cited By Binnie J. Referred to: Griffin v.

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APPEAL from a judgment of the British Columbia Court of Appeal (Finch C.J.B.C. and Rowles, Newbury, Tysoe and Neilson JJ.A.), 2009 BCCA 104 , 88 B.C.L.R. (4th) 212, [2009] 5 W.W.R. 466, 68 C.P.C. (6th) 57, 267 B.C.A.C. 266, 450 W.A.C. 266, 304 D.L.R. (4th) 564, [2009] B.C.J. No. 469 (QL), 2009 CarswellBC 608, reversing a decision of Masuhara J., 2008 BCSC 933 , 85 B.C.L.R. (4th) 372, 295 D.L.R. (4th) 511, [2008] B.C.J. No. 1347 (QL), 2008 CarswellBC 1490. Appeal allowed in part, LeBel, Deschamps, Abella and Charron JJ. dissenting. Arthur M. Grant and Bruce W. Lemer , for the appellant. Robert S.

Anderson , Q.C. , Sean Hern and Nicholas T. Hooge , for the respondent. Babak Barin , Gaston Gauthier and Frédéric Côté , for the intervener Barreau du Québec. Ivan G. Whitehall , Q.C. , and Alejandro Manevich , for the intervener the Canadian Arbitration Congress. Barry Leon , Andrew de Lotbinière McDougall and Daniel Taylor , for the intervener ADR Chambers Inc. The judgment of McLachlin C.J. and Binnie, Fish, Rothstein and Cromwell JJ. was delivered by [ 1 ] Binnie J. — This appeal concerns a dispute between TELUS Communications Inc. (“TELUS”) and one of its customers , the appellant Ms.

Seidel, arising out of a cell phone contract. The contract, drawn up by TELUS, provided that “[a]ny claim, dispute or controversy” shall be referred to “private and confidential mediation” and thereafter, if unresolved, to “private, confidential and binding arbitration” . TELUS says that mediation and arbitration offer a low-cost, quick, private and effective means of sorting out disputes according to rules the parties themselves have agreed to. Notwithstanding these provisions, Ms.

Seidel filed a statement of claim in the Supreme Court of British Columbia setting out a variety of complaints including some that invoke rights, benefits or protections under the British Columbia Business Practices and Consumer Protection Act , S.B.C. 2004, c. 2 (“ BPCPA ”) .

This consumer legislation is designed, it is contended, to remedy the mischief described by Sharpe J.A. of the Ontario Court of Appeal: 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 . . . .

When consumer disputes are in fact arbitrated through bodies such as NAF that sell their services to corporate suppliers, consumers are often disadvantaged by arbitrator bias in favour of the dominant and repeat-player corporate client . . . . ( Griffin v. Dell Canada Inc. , 2010 ONCA 29 , 98 O.R. (3d) 481, at para. 30 ) [ 2 ] The choice to restrict or not to restrict arbitration clauses in consumer contracts is a matt er for the legislature.

Absent legislative intervention, the courts will generally give effect to the terms of a commercial contract freely entered into, even a contract of adhesion, including an arbitration clause.

The important question raised by this appeal, however, is whether the BPCPA manifests a legislative intent to intervene in the marketplace to relieve consumers of their contractual commitment to “private and confidential” mediation/arbitration and, if so, under what circumstances. [ 3 ] My colleagues LeBel and Deschamps JJ. attempt to cast the appeal in terms of whether or not arbitrators should be seen as “second-class adjudicators” (para. 55) and paint those with whom they disagree as exhibiting an “undercurrent of hostility towards arbitration” (para. 101).

Respectfully, I believe the Court’s job is neither to promote nor detract from private and confidential arbitration. The Court’s job is to give effect to the intent of the legislature as manifested in the provisions of its statutes. [ 4 ] The BPCPA issue was rightly entertained by the courts below rather than in the first instance by an arbitrator notwithstanding the adoption of the competence-competence principle in British Columbia, because it raised an issue of jurisdiction on undisputed facts on which an authoritative judicial

interpretation was appropriate ( see Dell Computer Corp. v. Union des consommateurs , 2007 SCC 34 , [2007] 2 S.C.R. 801 , at paras. 84-86 ). [ 5 ]

Section 172 of the BPCPA contains a remedy whereby “a person other than a supplier, whether or not the person bringing the action has a special interest or any interest under this Act or is affected by a consumer transaction that gives rise to the action, may bring an action in Supreme Court ” to enforce the statute’s consumer protection standards. Under s. 3 of the BPCPA , any agreement between the parties that would waive or release “rights, benefits or protections” conferred by the BPCPA is “void”. My opinion is that to the extent Ms. Seidel’s claim in the Supreme Court invokes s. 172 remedies in respect of “rights, benefits or

protections” conferred by the BPCPA , her court action must be allowed to proceed notwithstanding the mediation/ arbitration clause. This includes her claims for declaratory and injunctive relief and, if granted, ancillary relief in the form of restoration to consumers of any money acquired by TELUS in contravention of the BPCPA . [ 6 ] The reason for this conclusion is simple.

Section 172 provides a mandate for consumer activists or other s, whether or not they are personally “affected” in any way by any “consumer transaction”.

Section 172 contemplates such a person “bringing the action”. The action is specified to be brought “in Supreme Court”. The clear intention of the legislature is to supplement and multiply the efforts of the director under the BPCPA to implement province-wide standards of fair consumer practices by enlisting the efforts of a whole host of self - appointed private enforcers. In an era of tight government budgets and increasingly sophisticated supplier contracts, this is understandable legislative policy.

An action in the Supreme Court will generate a measure of notoriety and, where successful, public denunciation, neither of which would be achieved to nearly the same extent by “private, confidential and binding arbitration”. [ 7 ] Private arbitral justice, because of its contractual origins, is necessarily limited. As the BPCPA recognizes, some types of relief can only be made available from a superior court . Accordingly, t o the extent Ms.

Seidel’s complaints shelter under s. 172 of the BPCPA (and only to that extent), they cannot be waived by an arbitration clause and her court action may continue, in my opinion. As to her alternative complaints, whether under other sections of the BPCPA , the now repealed Trade Practice Act , R.S.B.C. 1996, c. 457 (“ TPA ”), or at common law, the TELUS arbitration clause is valid and enforceable. As to those claims, her court action should be stayed pursuant to s. 15 of the Commercial Arbitration Act , R.S.B.C. 1996, c. 55 (“ CAA ”). [ 8 ] I should flag at the outset two issue s that this appeal does not decide.

Firstly, of course, Ms. Seidel’s complaints against TELUS are taken to be capable of proof only for the purposes of this application. We are not assuming the allegations will be proven, let alone deciding that TELUS did in fact engage in the conduct complained of. Secondly, Ms. Seidel’s action is framed as a class proceeding, for which she is seeking certification. The present appeal concerns only her individual action.

Whether or not the s. 172 claims should be certified as a class action is a matter that will have to be determined by the courts of British Columbia, which have yet to address the issue. [ 9 ] The British Columbia Court of Appeal stayed all of Ms. Seidel’s claims — both under the BPCPA and otherwise. I would therefore partly grant the appeal to allow her claims under s. 172 of the BPCPA to go forward as candidates for certification. In other respects, the appeal should be dismissed. I. Facts [ 10 ] TELUS and Ms. Seidel entered into a written cellular phone services contract in 2000.

By a statement of claim dated January 21, 2005, she claims that TELUS falsely represented to her and other consumers how it calculates air time for billing purposes. She seeks redress against what she contends are deceptive and unconscionable practices contrary to ss. 3, 4(3)(

b) and 4(3)(

e) of the TPA and ss. 4 , 5 , 8(3) (

b) and 9 of the BPCPA (statement of claim, at paras. 11-12). She invokes both s. 171 and s. 172 remedies. Further, as stated, she seeks certification to act on her own behalf and as representative of a class of allegedly overcharged customers, pursuant to the Class Proceedings Act , R.S.B.C. 1996, c. 50 (“ CPA ”). [ 11 ] I leave aside her claims under the TPA which are clearly subject to the arbitration agreement, and therefore not before the court.

With respect to s. 172 of the BPCPA , however, she seeks a declaration that TELUS engaged in deceptive and unconscionable trade acts and practices under s. 172(1) (a). She also seeks an interim and permanent injunction under s. 172(1) (b), prohibiting TELUS from engaging in such acts and practices, and an order under s. 172(3)(

a) restoring monies that TELUS acquired, she says, by contravening the BPCPA , including a proper accounting. [ 12 ] In 2007, in the course of Ms. Seidel’s application to have her claim certified as a class action, TELUS applied for a stay on the basis of the arbitration clause pursuant to s. 15 of the CAA . In doing so, it relied on this Court’s decisions in Dell and Rogers Wireless Inc. v. Muroff , 2007 SCC 35 , [2007] 2 S.C.R. 921, in which Quebec class certification proceedings were stayed pending the arbitration of consumer disputes. Ms.

Seidel is obliged in the first instance, TELUS says, to have her entire complaint, including the BPCPA claims, dealt with by arbitration, as provided for in their service contract. Under the competence-competence principle, the arbitrator will determine what, if anything, is excluded from his or her jurisdiction and can thus be taken to the courts (R.F., at para. 30). [ 13 ] Unfortunately, the initial 2000 contract containing the original arbitration clause on which TELUS relies cannot be found.

However, the 2003 contract is in evidence and contains the following arbitration clause (an almost identical clause is found in the 2004 renewed contract): 15. ARBITRATION: Any claim, dispute or controversy (whether in contract or tort, pursuant to statute or regulation, or otherwise and whether pre-existing, present or future — except for the collection from you of any amount by TELUS Mobility) arising out of or relating to: (

a) this agreement; (

b) a phone or the service; (

c) oral or written statements, or advertisements or promotions relating to this agreement or to a product or service; or (

d) the relationships which result from this agreement (including relationships with third parties who are not parties to this agreement), (each, a “Claim”) will be referred to and determined by private and confidential mediation before a single mediator chosen by the parties and at their joint cost. Should the parties after mediation in good faith fail to reach a settlement, the issue between them shall then be determined by private, confidential and binding arbitration by the same person originally chosen as mediator.

Either party may commence court proceedings to enforce the arbitration result when an arbitration decision shall have been rendered and thirty (30) days have passed from the date of such decision. By so agreeing, you waive any right you may have to commence or participate in any class action against TELUS Mobility related to any Claim and, where applicable, you hereby agree to opt out of any class proceeding against TELUS Mobility otherwise commenced. . . . [Emphasis added; A.R., at p. 83.] The last sentence of the arbitration clause quoted above purports to waive any right Ms.

Seidel may have to commence or participate in a class action. It is suggested on behalf of TELUS that that last sentence constitutes a separate bargain — distinct from the arbitration provision that precedes it — that survives any invalidity of the rest of the clause in relation to s. 172 proceedings. On this alternative submission, Ms. Seidel could still proceed in court with her individual s. 172 action but would be contractually barred from seeking its certification as a class proceeding. As will be seen, I would reject this submission of TELUS as well.

II. Judicial History A. Supreme Court of British Columbia ( 2008 BCSC 933 , 85 B.C.L.R. (4th) 372 ; Masuhara J.) [ 14 ] The applications judge concluded that Dell could not be said to have set out a test of general application. In his view, it rested on provisions specific to Quebec law and should not be taken to have overruled earlier B.C. precedent, including in particular, MacKinnon v. National Money Mart Co. , 2004 BCCA 473 , 50 B.L.R. (3d) 291 (“ MacKinnon 2004 ”). In MacKinnon 2004 , the B.C.

Court of Appeal had found that an arbitration agreement should be considered “inoperative” within the meaning of s. 15 of the CAA only if a class proceeding is certified under the CPA because it is the “preferable procedure” (s. 4(1)(d)), and that it is premature to determine whether the action should be stayed until the court has dealt with the certification application. The court therefore remitted the stay application back to the case management judge for reconsideration with the application for certification.

Applying the MacKinnon 2004 reasoning, Masuhara J. denied TELUS’s application for a stay of the certification proceedings (para. 84). B. British Columbia Court of Appeal ( 2009 BCCA 104 , 88 B.C.L.R. (4th) 212 ; Tysoe J.A. (Finch C.J.B.C. and Rowles, Newbury and Neilson JJ.A. concurring)) [ 15 ] The Court of Appeal considered Seidel with a companion case, MacKinnon v. National Money Mart Co. , 2009 BCCA 103 , 89 B.C.L.R. (4th) 1 (“ MacKinnon 2009 ”). The appeal in Seidel was allowed. The appeal in MacKinnon 2009 would also have been allowed but for the court’s conclusion that issue estoppel applied.

The appeal in that case was dismissed accordingly. [ 16 ] The central issue was whether this Court’s decision in Dell had effectively overruled the earlier B.C. Court of Appeal decision in MacKinnon 2004 . [ 17 ] For this purpose, in MacKinnon 2009 , the court considered whether the legislative provisions governing arbitration in Quebec could be distinguished from the British Columbia CAA .

It concluded that, since both pieces of legislation stemmed from the Convention on the Recognition and Enforcement of Foreign Arbitral Awards , 330 U.N.T.S. 3 (the “New York Convention”), and the UNCITRAL Model Law on International Commercial Arbitration , U.N. Doc. A/40/17 (1985), Ann.

I (“Model Law”), any differences were technical rather than substantive. [ 18 ] As to the provisions of the BPCPA forbidding waivers of “rights, benefits or protections”, the court considered that to the extent the arbitration clause is a waiver of anything, it is a waiver of forum, but forum (as such) is not included in the protection offered by s. 3 of the BPCPA , which only covers substantive consumer rights.

Accordingly, the court applied Dell and held that the plaintiff was bound by the arbitration clause contained in the contract of adhesion in respect of all claims ( MacKinnon 2009 , at paras. 69- 72). [ 19 ] In Seidel , the Court of Appeal also held, having regard to the competence-competence principle as it is incorporated in B.C. law, that it is for the arbitrator t o consider whether the arbitration agreement existed in the original contract, and to determine which claims are subject to arbitration and which should go before a court (paras. 28-34). [ 20 ] In the result, the B.C.

Court of Appeal entered a stay of Ms. Seidel’s action in its entirety. III. Relevant Legislation [ 21 ] Business Practices and Consumer Protection Act , S.B.C. 2004, c. 2 Waiver or release void except as permitted 3 Any waiver or release by a person of the person’s rights, benefits or protections under this Act is void except to the extent that the waiver or release is expressly permitted by this Act. . . . Unconscionable acts or practices 8

(1) An unconscionable act or practice by a supplier may occur before, during or after the consumer transaction.

(2) In determining whether

an act or practice is unconscionable, a court must consider all of the surrounding circumstances of which the supplier knew or ought to have known.

(3) Without limiting subsection (2), the circumstances that the court must consider include the following: (

a) that the supplier subjected the consumer or guarantor to undue pressure to enter into the consumer transaction; (

b) that the supplier took advantage of the consumer or guarantor’s inability or incapacity to reasonably protect his or her own interest because of the consumer or guarantor’s physical or mental infirmity, ignorance, illiteracy, age or inability to understand the character, nature or language of the consumer transaction, or any other matter related to the transaction; (

c) that, at the time the consumer transaction was entered into, the total price grossly exceeded the total price at which similar subjects of similar consumer transactions were readily obtainable by similar consumers; (

d) that, at the time the consumer transaction was entered into, there was no reasonable probability of full payment of the total price by the consumer; (

e) that the terms or conditions on, or subject to, which the consumer entered into the consumer transaction were

so harsh or adverse to the consumer as to be inequitable; (

f) a prescribed circumstance. . . . Damages recoverable 171

(1) Subject to subsection (2), if a person, other than a person referred to in paragraphs (

a) to (e), has suffered damage or loss due to a contravention of this Act or the regulations, the person who suffered damage or loss may bring an action against a (

a) supplier , (

b) reporting agency , as defined in

section 106 [definitions] , (

c) collector , as defined in

section 113 [definitions] , (

d) bailiff , collection agent or debt pooler, as defined in

section 125 [definitions] , or (

e) a person required to hold a licence under

Part 9 [Licences] who engaged in or acquiesced in the contravention that caused the damage or loss. . . . Court actions respecting consumer transactions 172

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

a) a declaration that

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

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

(3) If the court grants relief under subsection (1), the court may order one or more of the following: (

a) that the supplier restore to any person any money or other property or thing, in which the person has an interest, that may have been acquired because of a contravention of this Act or the regulations; (

b) if the action is brought by the director, that the supplier pay to the director the actual costs , or a reasonable proportion of the costs, of the inspection of the supplier conducted under this Act; (

c) that the supplier advertise to the public in a manner that will assure prompt and reasonable communication to consumers, and on terms or conditions that the court considers reasonable, particulars of any judgment, declaration, order or injunction granted against the supplier under this section. Commercial Arbitration Act , R.S.B.C. 1996, c. 55 15

(1) If a party to an arbitration agreement commences legal proceedings in a court against another party to the agreement in respect of a matter agreed to be submitted to arbitration, a party to the legal proceedings may apply, before or after entering an appearance and before delivery of any pleadings or taking any other step in the proceedings, to that court to stay the legal proceedings.

(2) In an application under subsection (1), the court must make an order staying the legal proceedings unless it determines that the arbitration agreement is void, inoperative or incapable of being performed. . . . 22

(1) Unless the parties to an arbitration otherwise agree, the rules of the British Columbia International Commercial Arbitration Centre for the conduct of domestic commercial arbitrations apply to that arbitration.

(2) If the rules referred to in subsection (1) are inconsistent with or contrary to the provisions in an enactment governing an arbitration to which this Act applies, the provisions of that enactment prevail.

(3) If the rules referred to in subsection (1) are inconsistent with or contrary to this Act, this Act prevails. Class Proceedings Act , R.S.B.C. 1996, c. 50 4

(1) The court must certify a proceeding as a class proceeding on an application under

section 2 or 3 if all of the following requirements are met: (

a) the pleadings disclose a cause of action;

(

b) there is an identifiable class of 2 or more persons; (

c) the claims of the class members raise common issues, whether or not those common issues predominate over issues affecting only individual members; (

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

e) there is a representative plaintiff who (

i) would fairly and adequately represent the interests of the class, (ii) has produced a plan for the proceeding that sets out a workable method of advancing the proceeding on behalf of the class and of notifying class members of the proceeding, and (iii) does not have, on the common issues, an interest that is in conflict with the interests of other class members.

(2) In determining whether a class proceeding would be the preferable procedure for the fair and efficient resolution of the common issues, the court must consider all relevant matters including the following: (

a) whether questions of fact or law common to the members of the class predominate over any questions affecting only individual members; (

b) whether a significant number of the members of the class have a valid interest in individually controlling the prosecution of separate actions; (

c) whether the class proceeding would involve claims that are or have been the subject of any other proceedings; (

d) whether other means of resolving the claims are less practical or less efficient; (

e) whether the administration of the class proceeding would create greater difficulties than those likely to be experienced if relief were sought by other means. . . . 13 The court may at any time stay any proceeding related to the class proceeding on the terms the court considers appropriate. British Columbia International Commercial Arbitration Centre’s Domestic Commercial Arbitration Rules of Procedure , as amended June 1, 1998 (“BCICAC Rules”) 20. Jurisdiction

(1) The arbitration tribunal may rule on its own jurisdiction, including ruling on any objections with respect to the existence or validity of the arbitration agreement.

(2) A decision by the arbitration tribunal that the contract is null and void shall not entail the invalidity of the arbitration clause unless specifically found to be so by the arbitration tribunal.

(3) Any objection to the jurisdiction of the arbitration tribunal to consider a claim or counter-claim shall be raised in the statement of defense or statement of defense to counter-claim. The tribunal may consider a late objection if it regards the delay justified.

(4) A party is not precluded from raising a jurisdictional plea by the fact that it has appointed or participated in the appointment of an arbitrator. IV. Analysis [ 22 ] The underlying issue in this appeal is access to justice. Each of the disputants claims to be its supporter. Mediation and a rbitration, TELUS says, reflect the values of freedom of contract and the autonomy of individuals to order their affairs as they see fit.

A consumer can press an individual complaint which would not be worthwhile to pursue under the more costly proceedings of a court. [ 23 ] The virtues of commercial arbitration have been recognized and indeed welcomed by our Court in a series of recent decisions mainly from Quebec, including not only Dell and Rogers Wireless , but also Bisaillon v. Concordia University , 2006 SCC 19 , [2006] 1 S.C.R. 666; GreCon Dimter inc. v. J.R. Normand inc. , 2005 SCC 46 , [2005] 2 S.C.R. 401; and Desputeaux v. Éditions Chouette (1987) inc. , 2003 SCC 17 , [2003] 1 S.C.R. 178. See also, S.

Thuilleaux, L’arbitrage commercial au Québec: Droit interne — Droit international privé (1991), at p. 5, and F. Bachand, “Should No-Class Action Arbitration Clauses Be Enforced?”, in A. W. Rovine, ed., Contemporary Issues in International Arbitration and Mediation: The Fordham Papers 2008 (2009), 153, at p. 162. [ 24 ] Nevertheless , from the perspective of the BPCPA , “private, confidential and binding arbitration” will almost certainly inhibit rather than promote wide publicity (and thus deterrence) of deceptive and/or unconscionable commercial conduct.

It is clearly open to a legislature to utilize private consumers as effective enforcement partners operating independently of the formal enforcement bureaucracy and to conclude that the most effective form is not a “private and confidential” alternative dispute resolution

behind closed doors, but very public and well-publicized proceedings in a court of law. [ 25 ] Leaving aside British Columbia for a moment, a number of other provincial legislatures have intervened in the marketplace with greater or lesser limitations on arbitration clauses in consumer contracts. See, e.g.: in Quebec,

An Act to amend the Consumer Protection Act and the Act respecting the collection of certain debts , S.Q. 2006, c. 56, s. 2; in Ontario, the Consumer Protection Act, 2002 , S.O. 2002, c. 30, Sch. A, ss. 7, 8 and 100 ; and in Alberta, the Fair Trading Act , R.S.A. 2000, c. F-2, which in s. 16 subjects consumer arbitration clauses to ministerial approval. [ 26 ] This case requires the Court to determine, in short, whether, as a matter of statutory

interpretation, s. 172 of the BPCPA contains such a limitation and, if so, its extent and effect on Ms. Seidel’s action. In addition, we need to address the procedural issue of whether these questions ought to be decided in the first instance by the court or an arbitrator. A.

The Principle of Competence-Competence Must Be Respected [ 27 ] It is convenient to deal first with the procedural issue. [ 28 ] British Columbia has adopted the competence-competence principle through the combined operation of s. 22 of the CAA and Rule 20(2) of the BCICAC Rules which in turn reflect the provisions of the New York Convention and Model Law. As such, “[t]he jurisdiction to determine jurisdiction is given to the arbitral tribunal by statute, as well as by the rules of arbitration used by most institutions”: see J. B. Casey and J.

Mills, Arbitration Law of Canada: Practice and Procedure (2005), at p. 147. [ 29 ] I agree with my colleagues LeBel and Deschamps JJ. (at para. 114) that in these circumstances, absent legislated exception, any challenge to an arbitrator’s jurisdiction over Ms. Seidel’s dispute with TELUS should first be determined by the arbitrator, unless the challenge involves a pure question of law, or one of mixed fact and law that requires for its disposition “only superficial consideration of the documentary evidence in the record” ( Dell , at para. 85). See also, Unifund Assurance Co. v.

Insurance Corp. of British Columbia , 2003 SCC 40 , [2003] 2 S.C.R. 63 , at paras. 37-38 . [ 30 ] Whether or not s. 172 of the BPCPA has the legal effect claimed for it by Ms. Seidel was a question of law to be determined on undisputed facts. Accordingly, it was properly entertained by the Supreme Court of British Columbia in the first instance. The competence-competence principle was not violated. B. The Substantive Issue: Does

Section 172 of the BPCPA Override the Mediation/Arbitration Provision in a Consumer Contract? [ 31 ] For practical purposes, the answer to this question turns on whether the waiver contained in the TELUS arbitration clause is rendered null and void by s. 3 of the BPCPA , which, for convenience, I reproduce again: 3 Any waiver or release by a person of the person’s rights, benefits or protections under this Act is void except to the extent that the waiver or release is expressly permitted by this Act.

I interpret this clause to mean that to the extent the arbitration clause purports to take away a right, benefit or protection conferred by the BPCPA , it will be invalid, and to that extent, Ms. Seidel will retain her individual cause of action under the BPCPA in the Supreme Court of British Columbia. If the arbitration clause is thus rendered invalid, the stay provisions of the CAA will not assist TELUS. However, the statutory right to bring an action in the Supreme Court of British Columbia appears only in s. 172 . As explained earlier, Ms.

Seidel’s statement of claim contains a variety of different assertions and claims invoking different statutes and causes of action. It is only to the extent that she can bring her case within s. 172 of the BPCPA that the legislative override in s. 3 will extricate her from the arbitration clause to which she agreed in the TELUS contract.

(1) The “ R ights, B enefits or P rotections” Conferred by

Section 172 [ 32 ] For ease of reference, I reproduce again the language of s. 172 . It is headed “ Court actions respecting consumer transactions”. It is clearly framed to encourage private enforcement in the public interest: Court actions respecting consumer transactions 172

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

a) a declaration that

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

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

(3) If the court grants relief under subsection (1) , the court may order one or more of the following: (

a) that the supplier restore to any person any money or other property or thing, in which the person has an interest, that may have been acquired because of a contravention of this Act or the regulations; (

b) if the action is brought by the director, that the supplier pay to the director the actual costs , or a reasonable proportion of the costs, of the inspection of the supplier conducted under this Act; (

c) that the supplier advertise to the public in a manner that will assure prompt and reasonable communication to consumers, and on terms or conditions that the court considers reasonable, particulars of any judgment, declaration, order or injunction

granted against the supplier under this section. It will be noted that whereas s. 171 damages may only be sought by “the person who suffered damage”, a s. 172 claim may be initiated by virtually anyone (“a person other than a supplier, whether or not the person bringing the action has a special interest or any interest under this Act or is affected by a consumer transaction that gives rise to the action”). The fact that s uch persons do not necessarily act in their personal interest (as they don’t need to have any) emphasizes the public interest nature of the s. 172 remedy .

Opening the door to private enforcement in the public interest vastly increases the potential effectiveness of the Act and thereby promotes adherence to the consumer standards set out therein. The legislature clearly intended the Supreme Court to be able to enjoin a supplier guilty of infractions of the BPCPA from practicing the offending conduct against any consumer (orders which only courts can issue), rather than just in relation to a particular complainant (as in a “ private ” and “confidential” arbitration created by private contract).

(2) A Proper I nterpretation of

Section 172 of the BPCPA M ust B e A pproached T extually, C ontextually and P urposively [ 33 ] The text of the statute favours Ms. Seidel’s

interpretation. The operative language of s. 3 (“rights, benefits or protections”) is all-encompassing. TELUS argues (and my colleagues LeBel and Deschamps JJ. agree, at para. 136) that the s. 172 right to “bring an action in Supreme Court” is merely procedural . With respect, this characterization is of no assistance to TELUS. W hether procedural or substantive, it is indubitably a “righ[t]” or “benefi[t]” conferred by the statute.

If the legislature had intended to draw distinctions between procedural and substantive “rights, benefits or protections” in s. 3 of the BPCPA , it could easily have done so, but it chose not to. Ms. Seidel possesses a statutory “right” to take her complaint to the Supreme Court. My colleagues LeBel and Deschamps JJ. read down the expression “rights, benefits or protections” to exclude procedural rights.

I can find no justification for modifying the legislation in this way. [ 34 ] My colleagues then focus on the word “may” appearing in s. 172 where it provides that an individual “may bring an action in Supreme Court”. This shows, they say, that “the Supreme Court is not intended to be the only forum in which these remedies can be sought” (para. 154). With respect, the word “may” simply indicates the obvious intention that an individual (particularly one without “any interest” in a consumer transaction) has the option to complain or not to complain. How could it be mandatory?

However, the statutory point is that if a s. 172 action is taken, it must be taken in the Supreme Court. [ 35 ] The internal structure of s. 172 also shows that the B.C. legislature was well aware that, in the consumer context , d eclarations and injunctions are the most efficient remedies in terms of protection of the interest of the broader public of consumers and deterrence of wrongful supplier conduct. Damages are often a less important form of relief considering the small amounts of money at stake.

Thus, in s. 172, an order to “restore” money or property is framed as secondary relief that is contingent on the plaintiff first obtaining a declaration or injunction that, unlike an arbitral award, would be broadcast to the marketplace generally with full supporting reasons.

On this point, my colleagues argue (at para. 152) that an arbitrator could make an order that “would fulfill the public purpose” of the BPCPA provision authorizing a superior court to order the supplier to advertise to the public in a manner that will assure prompt and reasonable communication to consumers, and on terms or conditions that the court considers reasonable, particulars of any judgment, declaration, order or injunction granted against the supplier under this section. [s. 172(3)(c)] While the validity of such a hypothetical order is not before us, I think that TELUS would have a legitimate objection.

It is true that arbitrators in B.C. have fairly broad remedial powers, but it is equally true that in the exercise of those powers the arbitrator would have to respect the parties’ contractual agreement that the arbitration be “private” and “confidential”. (Indeed my colleagues’ entire argument is said to be based on respect for the intention of the parties.) I doubt that Ms. Seidel or TELUS would be free to turn a private and confidential arbitration into a public denunciation of the other under the guise of enforcement proceedings.

The arbitrator is not a court and the parties are constrained by contract not to treat it like one. [ 36 ] As to the statutory context, s. 172 stands out as a public interest remedy (i.e. it is available whether or not the self- appointed plaintiff “is affected by a consumer transaction that gives rise to the action”) as compared with s. 171 (where the plaintiff must be “the person who suffered damage or loss”). The difference in the personal stake (or lack of it) required of a plaintiff is scarcely accidental.

Section 171 confers a private cause of action.

Section 172 treats the plaintiff as a public interest plaintiff intended to shine a spotlight on allegations of shabby corporate conduct, and the legislative intent thereby manifested should be respected by the court. This appeal falls to be determined on the meaning of s. 172 of the BPCPA , not on general theories of the desirability of commercial arbitration. [ 37 ] As to statutory purpose , the BPCPA is all about consumer protection. As such, its terms should be interpreted generously in favour of consumers: Smith v.

Co-operators General Insurance Co. , 2002 SCC 30 , [2002] 2 S.C.R. 129, and ACS Public Sector Solutions Inc. v. Courthouse Technologies Ltd. , 2005 BCCA 605 , 48 B.C.L.R. (4th) 328. The policy objectives of s. 172 would not be well served by low-profile , private and confidential arbitrations where consumers of a particular product may have little opportunity to connect with other consumers who may share their experience and complaints and seek vindication through a well- publicized court action.

(3) Private Arbitration Is Antithetical to Achievement of the Purposes of

Section 172 [ 38 ] Casting the legislative purpose still more broadly, the usual rationales for private arbitration are quite incompatible with achieving s. 172’s objective. At the same time, private arbitration would be of considerable benefit to TELUS, i.e., “[t]here are real advantages to be gleaned from an arbitration agreement which guarantees confidentiality of the proceeding, avoids the dispute getting into the public domain, and ensures that sensitive information or harmful precedents remain confidential” (W. J.

Earle, Drafting ADR and Arbitration Clauses for Commercial Contracts (loose-leaf), at pp. 2-13 to 2-14). Each one of these objectives — confidentiality, lack of precedential value and avoiding “the dispute getting into the public domain” — makes perfect sense from the perspective of TELUS, but equally each of them undermines the effectiveness of s. 172 of the BPCPA .

(4) Private Arbitration Cannot Offer the Remedies Set Out in

Section 172 [39] Rule 29(1)(

k) of the BCICAC Rules provides that an arbitrator may order “injunctions and other equitableremedies”. On this basis, my colleagues LeBel and Deschamps JJ. conclude that “[t]he arbitrator can therefore . . . grant the declaratoryand injunctive relief sought by Ms. Seidel under ss. 172(1)(

a) and (

b) of the BPCPA” (para. 148). Yet it can hardly be denied thatarbitrators, who derive their jurisdiction by virtue of the parties’ contract, cannot order relief that would bind third parties, or that onlysuperior courts have the authority to grant declarations and injunctions enforceable against the whole world. Ms. Seidel does not seekremedies applicable only between her and TELUS but between TELUS and the whole world. Provided TELUS complied with any orderin relation to Ms.

Seidel, it could carry on as before in relation to TELUS customers who are not parties to the arbitration and aretherefore unaffected by its outcome, just as a successful defence by TELUS against Ms. Seidel’s complaint would not create in its favoura precedent in future arbitrations raising the same or similar complaints. [40] In

summary, s. 172 offers remedies different in scope and quality from those available from an arbitrator andconstitutes a legislative override of the parties’ freedom to choose arbitration. Unlike Quebec and Ontario, which have decided to banarbitration of consumer claims altogether, or Alberta, which subjects consumer arbitration clauses to ministerial approval, the B.C.legislature sought to ensure only that certain claims proceed to the court system, leaving others to be resolved according to the agreementof the parties. It is incumbent on the courts to give effect to that legislative choice, in my view. C.

This Outcome Is Not in Conflict With the Dell or Rogers Wireless Decisions of This Court [41] In Dell and its companion case Rogers Wireless, our Court rejected an attempt by consumers to pursue class actionsin Quebec in disputes arising out of product supply contracts in the face of arbitration clauses. The outcome turned on the terms of theQuebec legislation. In Dell, Deschamps J. wrote for the majority: “This appeal relates to the debate over the place of arbitration inQuebec’s civil justice system” (para. 2 (emphasis added)).

In particular, the issue was whether arbitration clauses in the consumercontracts were avoided by art. 3149 of the Civil Code of Québec, S.Q. 1991, c. 64. The majority concluded that art. 3149 did not assistthe consumers because it only applies “where there is a relevant foreign element that justifies resorting to the rules of Quebec privateinternational law” (para. 12).

The minority contended that art. 3149 did allow consumers to avoid arbitration because “[p]rivatearbitration proceedings, even those located in Quebec, are just as removed from Quebec’s judicial and quasi-judicial systems — andhence ‘international’ — as legal proceedings taking place in another province or country” (para. 202). Rogers Wireless (another Quebeccase) was disposed of in accordance with Dell. The intricacies of the Civil Code of Québec are far removed from the issue in BritishColumbia.

The Quebec legislation at the time contained no provision similar to s. 172 of the BPCPA directing specific statutory claimsto a specific forum. [42] For present purposes, the relevant teaching of Dell and Rogers Wireless is simply that whether and to what extent theparties’ freedom to arbitrate is limited or curtailed by legislation will depend on a close examination of the law of the forum where theirate consumers have commenced their court case. Dell and Rogers Wireless stand, as did Desputeaux, for the enforcement of arbitrationclauses absent legislative language to the contrary. D. May Ms. Seidel’s

Section 172 Claims Proceed as a Class Action? [43] I have concluded that Ms. Seidel has a statutory right to assert her s. 172 right before the Supreme Court of BritishColumbia. The next question is whether she can proceed by way of class action, as she would like, or whether she may only proceed onan individual basis.

The British Columbia courts did not reach this issue as the TELUS application for a stay was their exclusive focus,whether to deny it (as did the applications judge) or to grant it (as did the Court of Appeal). [44] The arbitration clause, it will be remembered, speaks not only of having claims “determined by private, confidentialand binding arbitration” but goes on to say that “[b]y so agreeing, [the signatories] waive any right [they] may have to commence orparticipate in any class action against TELUS”.

An argument was raised that even if the arbitration aspect is invalidated by s. 3, theconcurrent waiver of class action proceedings in the same clause remains valid and enforceable. [45] Ms. Seidel argues that class action waivers are unconscionable in any event. Picking up on some U.S. jurisprudence,she notes that “an important number of courts, principally state courts from California and Illinois, as well as the 9th Circuit, considerpre-dispute arbitration agreements to be unconscionable, especially when they are coupled with waiver of class proceeding rights” (A.F.,at para. 88).

It is not necessary on this appeal to determine whether class action waivers are unconscionable (and I do not purport to doso) because in my view, as a matter of

interpretation, the TELUS class action waiver is not severable from the arbitration clause as awhole, and as a whole it is rendered void by s. 3 of the BPCPA. [46] The TELUS clause is structured internally to make the class action waiver dependent on the arbitration provision. The wording makes it clear that it is only by virtue of their agreement to arbitrate that consumers bar themselves from a class action. Theundertakings are linked by the term “[b]y so agreeing”. What precedes (the arbitration clause) is the foundation for what follows (theclass action waiver).

If the arbitration provision is rendered invalid by s. 3 of the BPCPA, as I believe to be the case, the dependent classaction waiver falls with it. The unitary nature of the clause is reinforced to some extent by its title, which is “Arbitration”, not“Arbitration and Class Action Waiver”. [47] I take this language to be clear. However, if there is any ambiguity in the TELUS clause, it is resolved in favour ofMs. Seidel’s right of access to the court by the principles of contra proferentum. “Whoever holds the pen creates the ambiguity andmust live with the consequences”: Co-operators Life Insurance Co. v.

Gibbens, 2009 SCC 59, [2009] 3 S.C.R. 605, at para. 25; see also,ACS Public Sector Solutions, at para. 50, per Donald J.A. This, the Court said in Bauer v. Bank of Montreal, (SCC),[1980] 2 S.C.R. 102, “is particularly true where the clause is found in a standard printed form of contract, frequently termed a contract ofadhesion, which is presented by one party to the other as the basis of their transaction” (p. 108). [48] Accordingly, Ms. Seidel is not contractually barred from continuing to seek certification of her s. 172 claims as aclass action.

[ 49 ] Reference was made to s. 41(

a) of the CPA which provides that no class action can be instituted where a representative action is available. However, under the BPCPA , only the director may bring a representative action. Ms. Seidel may not do so. While consumer activists may bring actions despite the fact that they have not personally suffered any damage, such actions cannot be brought as representative actions under the BPCPA . This is to be contrasted with the situation under the now repealed TPA , where s. 18(3) allowed consumer-brought representative actions. Accordingly, s. 41(

a) of the CPA is not a bar to Ms. Seidel’s application for certification. V. Disposition [ 50 ] I would allow the appeal in part and lift the stay as regards the s. 172 claims made by Ms. Seidel . She may in that respect pursue the certification proceedings. On the other hand, I would uphold the stay in relation to her other claims which may, if she pursues them, go to arbitration. This may lead, if the arbitration is proceeded with, to bifurcated proceedings.

Such an outcome, however, is consistent with the legislative choice made by British Columbia in drawing the boundaries of s. 172 as narrowly as it did. [ 51 ] As Ms. Seidel has enjoyed substantial success, she should have her costs in this Court and in the courts below, including costs on the application for leave to appeal to this Court. The stay proceedings raise quite distinct issues unrelated to the merits of her claim. The costs are therefore awarded to her in any event of the ultimate outcome of the litigation.

The reasons of LeBel, Deschamps, Abella and Charron JJ. were delivered by [ 52 ] LeBel and Deschamps JJ. (dissenting) — In an effort to promote and improve access to justice, and to make more efficient use of scarce judicial resources, legislatures have adopted new procedural vehicles designed to modify or provide alternatives to the traditional court action. These alternatives include class actions and arbitration, both of which have been endorsed by this Court.

Consumers in British Columbia, depending on the contractual arrangements they make, already have access to either arbitration or the courts to resolve their disputes. In this case, the consumer’s contract provides that in the event of a dispute, the exclusive adjudicative forum is arbitration. This is a forum our courts have long accepted as an efficient and effective access to justice mechanism.

Thus, the question in this case is instead whether access to justice means — and requires — access to a judge. [ 53 ] This appeal specifically calls upon this Court to determine whether a clause in a standard form consumer contract for the supply of mobile phone services which mandates that all disputes with the service provider be resolved by way of arbitration, displaces the availability of class proceedings in the province of British Columbia.

In our view, the British Columbia legislature has, by incorporating the Convention on the Recognition and Enforcement of Foreign Arbitral Awards , 330 U.N.T.S. 3 (the “New York Convention”), and the UNCITRAL Model Law on International Commercial Arbitration , U.N. Doc A/40/17 (1985), Ann. I (“Model Law”), into its domestic arbitration legislation, made a clear choice.

Absent a clear statement by the legislature of an intention to the contrary, a consumer claim that could potentially proceed either by way of arbitration or class action must first be submitted to arbitration. [ 54 ] Access to justice in Canada no longer means access just to the public court system. Historically, judges were reluctant to relinquish their grasp on dispute resolution, and they even viewed alternative dispute resolution as antithetical to the parties’ interests. This era is gone. It is the role of the legislature, not the courts, to limit access to alternative dispute resolution mechanisms.

Unlike several other provinces, British Columbia has not limited the resolution of consumer disputes to a single procedural regime. On the contrary, it has left room for arbitration and allowed arbitrators to exercise broad remedial powers, subject to the agreement of parties to a dispute.

Given the current structure of consumer protection legislation in British Columbia, submitting a consumer’s dispute with their mobile phone service provider to arbitration is entirely consistent with the important public purposes of protecting consumers, vindicating their rights and promoting access to justice. [ 55 ] Our colleague Binnie J. frames this case somewhat differently than the parties.

He focusses first not on whether the arbitration clause agreed to by the parties to this dispute is inoperative — the issue on which the British Columbia courts focussed their decisions, and on which leave was granted — but rather on the

interpretation of ss. 3 and 172 of the Business Practices and Consumer Protection Act , S.B.C. 2004, c. 2 (“ BPCPA ”). He considers s. 172 to be the result of a legislative decision to confer exclusive jurisdiction on the British Columbia Supreme Court to issue declaratory, injunctive and other equitable orders, the waiver of which is prohibited by s. 3 . In our view, this

interpretation represents an inexplicable throwback to a time when courts monopolized decision making and arbitrators were treated as second-class adjudicators. This approach completely disregards the modern state of the law in British Columbia, in which arbitrators have expanded powers comparable to those of the courts to hear representative proceedings and to issue equitable orders. [ 56 ] We disagree that the BPCPA manifests explicit legislative intent to foreclose the use of arbitration as a vehicle for the resolution of disputes under that Act in British Columbia.

We would dismiss the appeal, thereby upholding the stay of court proceedings to allow the arbitration process contractually agreed to by the parties to run its course. I. Factual Background [ 57 ] The appellant, Michelle Seidel, became a customer of the respondent TELUS Communications Inc.’s mobile phone services in 2000. The parties have been unable to locate her original contract with TELUS, if one was in fact signed. Whether the original contract contained an arbitration clause cannot therefore be conclusively determined.

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