Briones v. National Money Mart Date:, 2014 MBCA 57

Citation: Briones v. National Money Mart Date: 20140605 Co. et al., 2014 MBCA 57 Docket: AI 13-30-08027 IN THE COURT OF APPEAL OF MANITOBA Coram: Mr. Justice Michel A. Monnin Madam Justice Holly C. Beard Mr. Justice Christopher J. Mainella BETWEEN : JENNY BRIONES (née BEJARANO) ) D. J. Kroft and ) J. P. Brown (Plaintiff) Respondent ) for the Appellant ) - and - ) P. R. Bennett, ) M. W. Mounteer and NATIONAL MONEY MART COMPANY ) M. P.

Good ) for the Respondent (Defendant) Appellant ) ) Appeal heard: - and - ) January 10, 2014 ) DOLLAR FINANCIAL GROUP INC. ) Judgment delivered: ) June 5, 2014 (Defendant) ) MONNIN J.A. [ 1 ] This is an appeal by National Money Mart Company (Money Mart) from an order dismissing its motion for a stay of a proposed class action proceeding brought by the respondent, Jenny Briones (Briones), seeking to recover certain payday loan fees which she alleges were collected by Money Mart from her and other borrowers in Manitoba in violation of s. 347(1) of the Criminal Code . [ 2 ] Before the motion judge, Money Mart argued that Briones’ claim should be stayed because she had entered into multiple written agreements requiring her to mediate and/or arbitrate her disputes with Money Mart. [ 3 ] Relying on his

interpretation of The Unconscionable Transactions Relief Act , C.C.S.M., c. U20 (the UTRA ), The Consumer Protection Act , C.C.S.M., c. C200 (the CPA ) and the decision of the Supreme Court of Canada in Seidel v.

TELUS Communications Inc. , 2011 SCC 15 , [2011] 1 S.C.R. 531, the motion judge declined to order the stay. [ 4 ] The motion judge set out the essentials of the case before him in his reasons (at paras. 1-4): The defendant National Money Mart Company (“Money Mart”) moves for an order staying or dismissing this action and compelling the plaintiff Jenny Briones to proceed with arbitration and in some cases mediation of her disputes against Money Mart. In her statement of claim, Ms.

Briones seeks, on her own behalf and on behalf of a proposed class, an accounting and repayment of all cheque-cashing fees received by Money Mart from her and others upon their repayment of short-term loans which are referred to as “payday loans” or “Fast Cash Advances”. Ms. Briones also seeks declarations that the cheque-cashing fees paid upon repayment of payday loans are interest under s. 347 of the Criminal Code , R.S.C. 1985, c.

C-46, and that the agreements used to provide payday loans, which are referred to as payday loan agreements or “Fast Cash Advance Agreements” (the “FCA Agreements”), are unlawful, fail to comply with the Consumer Protection Act , C.C.S.M., c. C-200 (the “ CPA ”), and constitute harsh or unconscionable transactions within the meaning of the Unconscionable Transactions Relief Act , C.C.S.M., c. U-20 (the “ UTRA ”). Ms.

Briones also claims on the basis of unjust enrichment, constructive trust, restitution, and conspiracy. [Ms.] Briones alleges that the defendant Dollar Financial Group, Inc. (“Dollar Financial”) is jointly and severally liable for any liability of Money Mart.

Money Mart disputes that Ms. Briones is entitled to the relief sought and seeks a stay on the basis of the mediation and arbitrationprovisions in the FCA Agreements. Money Mart argues that all of Ms. Briones claims against it are subject to these mediation andarbitration provisions. With respect to Ms. Briones’ claim against Dollar Financial (who is not a party to the FCA Agreements) and tothe extent that it is determined that some of the matters in dispute between Money Mart and Ms.

Briones are not subject to mediation orarbitration, Money Mart says that these claims ought to either be stayed pending the mediation/arbitration or proceed separately by wayof litigation. It is Ms. Briones’ position that in addition to her claims against Dollar Financial, her claims under the CPA and the UTRA are notsubject to arbitration. Ms. Briones concedes that the claims against Money Mart outside of the CPA and UTRA (unjust enrichment,constructive trust, restitution, and conspiracy) are subject to the arbitration clause, but argues that the arbitration clause isunconscionable. In any event, Ms.

Briones says that it is unreasonable to separate these claims against Money Mart that are subject toarbitration from those that are not. It is Ms. Briones’ position that the arbitration ought to give way to the litigation. It is further Ms.Briones’ position that the mediation clause in the FCA Agreements ought not to be the basis for a stay. [5] He then went on to state the issue he was to address (at para. 22): The central issue is whether as a matter of statutory

interpretation the UTRA and the CPA limit the applicability of the arbitration clauseand if so its extent and effect on Ms. Briones’ action. [6] The motion judge then went on to say (at paras. 25-26): The question of whether the UTRA and the CPA override the arbitration agreement can be entertained by the court in this case, ratherthan the arbitrator, because it raises an issue of jurisdiction where the relevant facts are essentially undisputed (Muroff v. RogersWireless Inc., 2007 SCC 35 , [2007] 2 S.C.R. 921; 365 N.R. 177; 2007 SCC 35, pp. 925-926; Seidel v.

Telus CommunicationsInc., 2011 SCC 15 , [2011] 1 S.C.R. 531; 412 N.R. 195; 301 B.C.A.C. 1; 510 W.A.C. 1; 2011 SCC 15, paras. 4, 29; see alsoHopkins v. Ventura Custom Homes Ltd. (2013), 2013 MBCA 67 , 294 Man.R. (2d) 168; 581 W.A.C. 168; 2013 MBCA 67,paras. 98-100). The Arbitration Act is to be read as subject to the UTRA and the CPA.

The determination of whether the UTRA and the CPAoverride the arbitration agreement is to be made based on the principles and approach of the Supreme Court of Canada outlined inSeidel, supra. [7] He next considered Seidel, and the following are his conclusions as to what that case stands for (at para. 29): The Supreme Court of Canada concluded that to the extent that Ms.

Seidel’s claim invoked s. 172 remedies in respect of “rights, benefitsor protections” conferred by the BPCPA [Business Practices and Consumer Protection Act, S.B.C. 2004, c. 2], her court action must beallowed to proceed notwithstanding the mediation/arbitration clause (para. 5). Binnie, J., provided the following explanation: 6 The reason for this conclusion is simple.

Section 172 provides a mandate for consumer activists or others, whether or not they arepersonally “affected” in any way by any “consumer transaction”.

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

An action in the Supreme Court will generate a measure of notoriety and, where successful, publicdenunciation, 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 canonly be made available from a superior court. Accordingly, to the extent Ms.

Seidel’s complaints shelter under s. 172 of the BPCPA (andonly to that extent), they cannot be waived by an arbitration clause and her court action may continue, in my opinion. ... . . . . .

32 ... It will be noted that whereas s. 171 damages may only be sought by “the person who suffered damage”, a s. 172 claim may beinitiated by virtually anyone (“a person other than a supplier, whether or not the person bringing the action has a special interest or anyinterest under this Act or is affected by a consumer transaction that gives rise to the action”). The fact that such persons do notnecessarily 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 therebypromotes adherence to the consumer standards set out therein.

The legislature clearly intended the Supreme Court to be able to enjoin asupplier guilty of infractions of the BPCPA from practicing the offending conduct against any consumer (orders which only courts canissue), rather than just in relation to a particular complainant (as in a “private” and “confidential” arbitration created by private contract).[Emphasis original] . . . . . 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 personwho suffered damage or loss”).

The difference in the personal stake (or lack of it) required of a plaintiff is scarcely accidental. Section171 confers a private cause of action.

Section 172 treats the plaintiff as a public interest plaintiff intended to shine a spotlight onallegations of shabby corporate conduct, and the legislative intent thereby manifested should be respected by the court. This appeal fallsto be determined on the meaning of s. 172 of the BPCPA, not on general theories of the desirability of commercial arbitration. [8] Finally, the motion judge stated (at paras. 34-37, 39): The statutory purpose of the UTRA and the CPA is consumer protection.

While not determinative in the circumstances of this case, tothe extent that there is any ambiguity, the terms of these statutes should be interpreted generously in favour of consumers (Seidel, para.37). In my view, the UTRA manifests a legislative intent to intervene and provide consumers with a right to seek relief in this court.

Section 2confers specific powers on the Court of Queen’s Bench to order a creditor to repay a sum “in excess of the sum adjudged by the courtto be fairly due in respect of the principal and the cost of the loan” [emphasis added].

Section 4 provides that the debtor “may apply forrelief under this Act to a judge of the court” [emphasis added]. The reference in s. 2 to being “adjudged by the court” and in s. 4applying for relief to a “judge” cannot be ignored and must have a meaning and function. Ruth Sullivan, Sullivan on the Construction ofStatutes, Fifth Edition, (LexisNexis: 2008) provides: ... It is presumed that the legislature avoids superfluous or meaningless words, that it does not pointlessly repeat itself or speak in vain.

Every word in a statute is presumed to make sense and to have a specific role to play in advancing the legislative purpose ... ... [E]very word and provision found [in] a statute is supposed to have a meaning and function. For this reason courts should avoid, asmuch as possible, adopting

interpretations that would render any portion of a statute meaningless or pointless or redundant. (p. 210) (See also Communities Economic Development Fund v. Canadian Pickles Corp. et al., (SCC), [1991] 3 S.C.R. 388;131 N.R. 81; 76 Man.R. (2d) 1; 10 W.A.C. 1, p. 408.) Like s. 3 and s. 172 of the BPCPA in Seidel (para. 31), I interpret these sections of the UTRA to mean that there is a statutory right tobring an action in the Court of Queen’s Bench.

Section 3(

b) of the UTRA provides that the powers conferred by s. 2 may be exercised inan action or proceeding by the debtor “notwithstanding any provision or agreement to the contrary”. I interpret s. 3(

b) of the UTRA tomean that to the extent the arbitration clause purports to be an agreement contrary to the powers conferred by s. 2 of the UTRA, it doesnot apply. To the extent that Ms Briones brings her case within s. 2 of the UTRA, the legislative override in s. 3 of the UTRA relievesher of the arbitration clause in the FCA Agreements. The ability to apply to a judge under s. 4 of the UTRA is also consistent with thisinterpretation.

In my view, the language and intent of these sections are comparable to s. 172 of the BPCPA at issue in Seidel, which specified that theaction may be brought in the British Columbia Supreme Court. By contrast, in Seidel, s. 171 conferred a right to bring an action but didnot specify a forum in which the action could be brought. The Supreme Court of Canada upheld the stay of the s. 171 part of the actionin favour of arbitration (para. 50).

Like Ms. Seidel’s “statutory ‘right’ to take her complaint to the Supreme Court” (para. 33) under s. 172 of the BPCPA, in thecircumstances of this case, I interpret the UTRA as providing Ms. Briones the right to apply for relief in this court. The UTRAmanifests a “legislative intent to intervene in the marketplace to relieve consumers of their contractual commitment to ‘private andconfidential’ mediation/arbitration” (Seidel, para. 2). [9] In arriving at the conclusions that he did, the motion judge also relied on a decision of the Alberta Court of Queen’sBench in Young v.

Dollar Financial Group Inc. et al., 2012 ABQB 601, 550 A.R. 114. That decision has since been upheld by theAlberta Court of Appeal, but for somewhat different reasons (2013 ABCA 264, 556 A.R. 173). Leave to appeal to S.C.C. denied,National Money Mart Co. v. Young, [2013] S.C.C.A. No. 400 (QL), on January 30, 2014. [10] With reference to Young, the motion judge wrote (at paras. 40-41): In Young v. Dollar Financial Group Inc. et al. (2012), 2012 ABQB 601 , 550 A.R. 114; 356 D.L.R. (4th) 346; 2012 ABQB601, the Alberta Court of Queen’s Bench dealt with a similar claim involving the same form of Money Mart agreement.

The plaintiffMr. Young also refused to participate in mediation or arbitration and Money Mart sought a stay of his action pursuant to the agreementshe signed and s. 7(1) of the Arbitration Act (Alberta), R.S.A. 2000, c. A-43.

Section 7 of the Alberta Act was worded similarly to theManitoba Arbitration Act. The court refused to stay the action based on the Fair Trading Act (Alberta), R.S.A. 2000, c. F-2, and theUnconscionable Transactions Act (Alberta), R.S.A. 2000, c. U-2 (the “UTA”). Macleod, J., provided the following commentsregarding the Alberta UTA provisions that are similar to the Manitoba provisions: 46 This legislation provides the Court, as defined in the Act with very broad powers to re-open transactions and order a variety ofremedies in cases where the Court determines that the transaction is harsh and unconscionable.

It is a unique remedy which arises in aparticular fact situation and it is to be noted that in s. 3 the powers conferred on the Court may be exercised in an action or proceedingbrought by the debtor “notwithstanding any provision or agreement to the contrary ...”. 47 The legislation is consumer protection legislation designed to protect borrowers from harsh and unconscionable transactions. In myview, the extraordinary remedies and powers conferred on the Court by s. 2 should not be exercised by anybody other than the Court asdefined in the Act.

If I am wrong in that conclusion it is also my view that neither an arbitration nor a mediation clause can preclude orprevent a debtor from accessing the Court under s. 3(b). In my view, the same comments apply to the Manitoba UTRA. [11] He then dealt with Briones’ claims outside of the provisions of the UTRA and the CPA as follows (at paras. 51-52): Ms.

Briones concedes that her claims against Money Mart outside of the UTRA and the CPA (unjust enrichment, constructive trust,restitution, and conspiracy) are subject to the arbitration clause, but argues that the arbitration clause is unconscionable and thus invalidunder s. 7(2)(

b) of the Arbitration Act. In my view, it is within the purview of the arbitrator to determine whether the clause isunconscionable because it entails more than a superficial examination of the documentary proof in the record (Rogers Wireless Inc.,supra, pp. 925-926).

The case at hand is analogous to the circumstances in Rogers Wireless Inc., where McLachlin, C.J., writing for themajority of the Supreme Court of Canada, concluded that answering this question would apparently require a probing factual inquiry andwould go far beyond superficial examination of the documentary evidence (pp. 926-927). (See also MacKinnon, paras. 34, 35.) However, as discussed below, I am exercising my discretion under s. 7(5) of the Arbitration Act to allow the claim to continue in thiscourt and not grant a partial stay. [12] Finally, he wrote (at para. 61): A partial stay of an action should be granted only if it is reasonable to separate the matters subject to arbitration from the other matters inthe litigation.

The arbitration must give way to litigation where there are overlapping matters that cannot be reasonably separated. In myview, the claims against Money Mart under the UTRA and the CPA and those against Dollar Financial (which I have concluded are notsubject to arbitration) are inextricably linked to Ms. Briones’ claims against Money Mart outside of the UTRA and the CPA (which aresubject to arbitration). They are based on essentially the same facts.

Having regard to this link, the undesirability and inefficiency ofmultiple proceedings, and the risk of potential inconsistent results, it is my view that it would be unreasonable to separate these claims

and have parallel proceedings in this court and before an arbitrator. [13] Money Mart argues that the motion judge erred in his

interpretation and application of the CPA, the UTRA and Seidel,as well as his reliance on Young. It asserts that he failed to make the distinction between a public interest remedy, which it says was thecase in Seidel, and a private cause of action, which it says is the nature of Briones’ claim. It also argues that the motion judge was inerror in concluding that the UTRA and the CPA provide public interest remedies. Therefore, Money Mart argues that there was no basison which the motion judge could refuse the stay it was seeking under the provisions of The Arbitration Act, C.C.S.M., c. A120.

As tothe motion judge’s reliance on Young, Money Mart argues that the Alberta Court of Appeal upheld the initial decision on a narrow issuethat is inapplicable in the present case and, therefore, should not have been relied on by the motion judge. [14] Money Mart further argues that, in dismissing its application to stay the proceeding in favour of mediation, the motionjudge failed to provide any meaningful analysis for doing so. [15] More specifically, Money Mart argues that the UTRA only provides for a private cause of action for individual, personaldamages equivalent to the type that was available under s. 171 of the Business Practices and Consumer Protection Act, S.B.C. 2004, c. 2(the BPCPA), and that, as a whole, does not “[manifest] a legislative intent to intervene in the marketplace to relieve consumers of theircontractual commitment to ‘private and confidential’ mediation/arbitration.” It further submits that this argument also applies to theCPA. [16] Money Mart finally refers the court to cases where other courts have interpreted the distinction between public interestremedy and a private cause of action in a manner contrary to what the motion judge did in the case at bar.

See Zwack et al. v. Pocha etal., 2012 SKQB 371, 404 Sask.R. 275; and Murphy v. Amway Canada et al., 2013 FCA 38, 443 N.R. 356. [17] In response, Briones raised the preliminary jurisdictional argument that no appeal lies from the decision of a motionjudge made under s. 7(2)(

c) pursuant to s. 7(6) of The Arbitration Act, relying on this court’s decision in Hopkins v. Ventura CustomHomes Ltd., 2013 MBCA 67, 294 Man.R. (2d) 168. [18] Briones goes on to argue that, in any event, Money Mart’s

interpretation of Seidel is strained and narrow and that suchan

interpretation has been rejected by other courts. Briones relies on the Alberta Court of Appeal decision in Young, which, it submits,confirmed the Queen’s Bench decision. Briones also points to the fact that class proceedings similar to those that she wishes to pursue inthis case have been certified in Ontario and British Columbia. [19] More specifically, Briones argues that provisions in consumer protection legislation that confer the right to proceed incourt should be interpreted generously in favour of consumers to ensure that the policy objectives of that legislation are met.

She goeson to argue that the words of s. 4 of the UTRA cannot be regarded as redundant and that the motion judge properly gave effect to theplain meaning of those words.

She finally argues that Money Mart’s argument concerning the CPA ignores the plain language of s. 96 ofthat Act. [20] I have set out in Appendix A to these reasons the statutory provisions considered in Seidel, in Young and in this case. [21] This court dealt with the applicability of s. 7(6) of The Arbitration Act in Hopkins, where Beard J.A., writing for thecourt, stated (at paras. 43-49): Ventura has appealed a decision of a judge made under s. 7 of the Act.

Pursuant to s. 7(6), there is no appeal from the court’s decisionunder s. 7, which raises the question of whether this court has the jurisdiction to entertain this appeal. This issue has been considered by the Ontario Court of Appeal on several occasions, based on the same provision as s. 7 of the Act. InMantini v. Smith Lyons LLP et al. (2003), (ON CA), 174 O.A.C. 138; 64 O.R. (3d) 505 (C.A.), Feldman, J.A.,speaking for the court, stated as follows (at paras. 15-16): The scope and effect of s. 7(6) of the Act have been considered by this court in two recent decisions, Huras v.

Primerica FinancialServices Ltd. (2000), (ON CA), 137 O.A.C. 79, [2000] O.J. No. 3772 (QL) (C.A.), and Brown v. Murphy (2002), (ON CA), 59 O.R. (3d) 404, 212 D.L.R. (4th) 35 (C.A.). Those cases explain that where a motion judge decides thata matter is not subject to arbitration, that is a decision that falls outside the scope of s. 7, and an appeal from that decision is not barred bys. 7(6). Therefore, because the motion judge determined that all of the respondents’ claims fall outside the arbitration agreement, s. 7(6) does notbar the appellant’s appeal. ... (See also SNC-SNAM, G.P. v.

Opron Maritimes Construction Ltd. et al. (2011), 2011 NBCA 60 , 386 N.B.R. (2d) 1; 999A.P.R. 1; 336 D.L.R. (4th) 129; 2011 NBCA 60 at paras. 31-40, and Griffin v. Dell Canada Inc. (2010), 2010 ONCA 29 , 259O.A.C. 108; 98 O.R. (3d) 481; 2010 ONCA 29, at para. 25.)

In Opron Maritimes, Richard, J.A., for the court, further explained the jurisdiction to entertain an appeal (at para. 40): The Ontario cases persuade me to conclude, as stated above, that if a motion judge stays a proceeding on the grounds the conditions in s.7(1) are met, there can be no appeal from that decision. Similarly, if a motion judge concludes that at least one of the criteria listed in s.7(2) is met, and, as a result, refuses to stay the proceeding, there can be no appeal from that decision. ...

On the other hand, if the motionjudge holds there is no applicable arbitration agreement upon which the proceedings could be stayed, or, in other words, if the judgedoes not make any of the determinations he or she might be called upon to make under s. 7 of the Arbitration Act, then s. 7(6) cannot besuccessfully invoked to bar an appeal. See also Clark (A.G.) Holdings Ltd. et al. v. HOOPP Realty Inc. (2013), 2013 ABCA 101 , 544 A.R. 114; 567 W.A.C. 114;2013 ABCA 101, at paras. 6-13. This court considered the

interpretation of s. 7(6) of the Act in Hnatiuk, [2010 MBCA 20, 251 Man.R. (2d) 178] at paras. 26-35, albeitin a different factual context. In that case, the motion judge found that the dispute came within the arbitration clause of the agreementand granted a stay of the court proceedings under s. 7 of the Act. This court found that one issue on appeal was whether the motionjudge had misdirected himself as to the nature of the dispute, with the result that an arbitration on the issue, as defined, would result in anineffective arbitration process (at para. 35).

In interpreting s. 7(6), this court accepted the decisions in Brown and Mantini, [(2003), (ON CA), 64 O.R. (3d)505] but found as follows (at para. 35): ... Failure to intervene, by construing s. 7(6) too literally, would result in an ineffective arbitration process. The arbitrator would have tofocus on a subsidiary question only, while the fundamental dispute remained outside his or her purview. That cannot be what wasintended by the legislature in enacting s. 7(6).

A discretionary order which stays a court proceeding and refers a dispute to arbitrationcannot be immune from appellate review if failure to review would send a wrongly described dispute to arbitration, with the likely resultthat the process would be futile. In

summary, it is clear that some decisions made under s. 7 are subject to appeal, and it is important to determine the exact nature of boththe question under appeal and the underlying dispute in order to determine the applicability of s. 7(6) and whether there is jurisdiction toentertain an appeal. In this case, the motion judge concluded that the arbitration clauses were valid, but that their application was limited to disputes arisingduring the construction period and did not extend to disputes arising after that time.

Regarding the Hopkins’ complaint, he found that thedispute arose after the construction was complete and the Hopkins had taken possession; therefore, it was not subject to the arbitrationclause.

Having found that the dispute was not subject to arbitration, the result is that his decision falls outside the scope of s. 7 and Iwould find that an appeal from that decision is not barred by s. 7(6). [22] To the extent that the motion judge in this case found that Briones’ claim was not subject to arbitration, I am of theview that what Beard J.A. stated in Hopkins is applicable and I would not dismiss the appeal on that basis. [23] The question of whether a stay of the court action in this case should be granted in favour of arbitration is answered, inlarge part, by the

interpretation and application of the UTRA. This legislation has its roots in England in the 1800s in money-lenderslegislation. The UTRA, in substantially its present form, was enacted in Manitoba in 1964, its purpose being to provide a remedy forunfair loans. Despite its long history, there is little jurisprudence dealing with ss. 1 and 4. [24] The issue in this case raises questions about the statutory

interpretation of the UTRA in the context of an arbitrationagreement. The courts have made strong statements about the important purpose of both consumer protection legislation such as theUTRA and private arbitration. Binnie J., for the majority in Seidel, noted that consumer protection legislation is to be “interpretedgenerously in favour of consumers” (at para. 37).

On the other hand, he also said that the courts have strongly supported contractualarbitration clauses, “Absent legislative intervention, the courts will generally give effect to the terms of a commercial contract freelyentered into, even a contract of adhesion, including an arbitration clause” (at para. 2). [25] For ease of reference, ss. 1 and 4 of the UTRA are as follows:

Definitions

1 In this Act, . . . . . “court” means the Court of Queen’s Bench; Relief in court 4 In addition to any right that a debtor may have under this or any other Act or otherwise in respect of money lent, he may apply forrelief under this Act to a judge of the court. [26] Regarding the

interpretation of statutory

definitions, Ruth Sullivan, Sullivan on the Construction of Statutes, 5th ed.(Markham: LexisNexis Canada Inc., 2008) states (at p. 62): Statutory

definitions may be exhaustive or non-exhaustive. Exhaustive

definitions declare the complete meaning of the defined term andcompletely displace whatever meanings the defined term might otherwise bear in ordinary or technical usage. An exhaustive definitionis normally introduced by the verb “means”. .... See Yellow Cab Ltd. v. Board of Industrial Relations et al., (SCC), [1980] 2 S.C.R. 761 at 768; Mattabi Mines Ltd. v.Ontario (Minister of Revenue), (SCC), [1988] 2 S.C.R. 175 at 194; and 3325806 Manitoba Ltd. v.

Winnipeg CityAssessor, 2006 MBCA 4, 201 Man.R. (2d) 222. [27] In 3325806 Manitoba, Hamilton J.A. stated (at para. 11): Simply put, the definition of “hospital” must be given meaning in the provisions in the Act that use the word unless another intention isclear, which is not the case here. …. [28] In this case, s. 1 of the UTRA states that “court” means the Court of Queen’s Bench. It follows that this is an exhaustivedefinition. The provisions in the UTRA that contain the word “court” do not contain any words to suggest a different intention than thatin the definition.

Applying this statutory principle strongly suggests that, when the UTRA refers to “court,” it refers exclusively to theCourt of Queen’s Bench. [29] In Seidel, the courts were looking at the

interpretation of s. 172 of the BPCPA, which states that a person “may bring anaction in Supreme Court” for certain declaratory and injunctive relief. LeBel and Deschamps JJ., dissenting, noted that other provisionsof the legislation gave jurisdiction to the Provincial Court to grant certain relief. They stated (at para. 154): …. There is no departure from the general rules in s. 172, and its purpose is to clarify that the Supreme Court, not the Provincial Court,may grant declaratory and injunctive relief.

This reference does not, on its own, indicate that the Supreme Court’s jurisdiction over theremedies provided for in s. 172 is exclusive.

The use of the word “may” makes it even clearer that the Supreme court is not intended tobe the only forum in which these remedies can be sought. …. [30] They concluded that “[s]ubsection 172(1) identifies the appropriate forum in the judicial system, but it does not excludethe jurisdiction of other fora, such as an arbitral tribunal” (at para. 159). [31] In the cases on which they relied, the legislation conferring jurisdiction on a particular court was similarly found to beclarifying which court, between more than one level or system, could exercise jurisdiction. In Desputeaux v.

Éditions Chouette (1987)inc., 2003 SCC 17, [2003] 1 S.C.R. 178, for example, the court found that the legislation resolved the question of which court system, asbetween the Federal Court and the Quebec Superior Court, would have jurisdiction, but it did not oust the jurisdiction of an arbitratorbecause that was not expressly stated. They also relied upon Jean Estate v.

Wires Jolley LLP, 2009 ONCA 339, 96 O.R. (3d) 171, inwhich the Ontario Court of Appeal found that legislation identifying the court in which proceedings were to be commenced was notintended to exclude arbitration, but to identify, between several possible levels of court, which would have jurisdiction.

[32] While I appreciate the position taken by LeBel and Deschamps JJ., it is not possible in Manitoba to bring an actionunder the UTRA in other than the Court of Queen’s Bench: there is no other level of court or court system that could have jurisdiction. The only other possible forum is that of arbitration. Thus, for the definition of “court” in s. 1 and the words “a judge of the court” in s. 4to have meaning, they must be interpreted as giving exclusive jurisdiction to the Court of Queen’s Bench to the exclusion of the onlyother possible forum. This is consistent with the well-known principle of statutory

interpretation against tautology, which is explainedby Sullivan, as follows (at p. 210): …. It is presumed that the legislature avoids superfluous or meaningless words, that it does not pointlessly repeat itself or speak in vain. Every word in a statute is presumed to make sense and to have a specific role to play in advancing the legislative purpose. …. [33] Binnie J., for the majority in Seidel, did not agree with their conclusion (at para. 34): My colleagues then focus on the word “may” appearing in s. 172 where it provides that an individual “may bring an action in SupremeCourt”.

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 “anyinterest” in a consumer transaction) has the option to complain or not to complain. How could it be mandatory? However, the statutorypoint is that if a s. 172 action is taken, it must be taken in the Supreme Court. [emphasis added] [34] Binnie J.’s comments apply equally to the

interpretation of ss. 1 and 4 of the UTRA. [35] The

interpretation of s. 1 as an exclusive definition of the meaning of “court” is assisted by the wording of s. 4 of theUTRA. The opening words of this provision are, “In addition to any right that a debtor may have under this or any other Act orotherwise.” In my view, the use of the words “or otherwise” indicates that, notwithstanding any other right that a debtor has to obtainrelief in respect to money lent, he also has a right to obtain relief from a judge of the Court of Queen’s Bench. Further, s. 4 gives aperson the right to apply to “a judge of the court” for relief.

The use of the word “judge” would suggest that a judge, and not anarbitrator, is to have jurisdiction. In my view, these words, together, constitute a clear statement of legislative intent as to the overridingjurisdiction of the Court of Queen’s Bench, despite any contract to the contrary agreeing to settle disputes by arbitration. [36] Thus, I would agree with the motion judge’s conclusion that the Court of Queen’s Bench has exclusive jurisdiction overactions under the UTRA to the exclusion of arbitration, albeit, I would do so on a somewhat different basis.

That being the case, thesubject-matter of the dispute, being an action under the UTRA, comes within s. 7(2)(

c) of The Arbitration Act as one that is “not capableof being the subject of arbitration under Manitoba law.” For this reason, the court may refuse to stay the court action in favour ofarbitration. [37] I cannot, however, dispose of this appeal without passing comment on Money Mart’s argument that the decisions inZwack and Murphy are applicable to the facts of this case and should have had some bearing on the motion judge’s decision.

Both ofthose cases were considered by the motion judge and, for reasons in which I concur, he concluded that they were not applicable. [38] With respect to Zwack he wrote (at para. 45): The Zwack case, supra, involved a dispute under a sales agreement for a cottage. Aside from it not being binding on this court, in myview, Zwack is distinguishable from the case at bar as there was no consumer activism purpose to the action. …. [39] And with respect to Murphy (also cited as Rhodes v. Cie Amway Canada), he stated (at para. 49): Similarly, Money Mart relies on Murphy v.

Amway Canada et al. (2011), 2011 FC 1341 , 401 F.T.R. 18; 2011 FC 1341,where the Federal Court of Appeal concluded that s. 36 of the Competition Act, R.S.C. 1985, c. C-34, which conferred a right to bringan action in any “court of competent jurisdiction”, did not exclude arbitration (para. 63).

However, again, the creation of concurrentjurisdiction is different than the right created under the UTRA and the CPA to bring an action in the Court of Queen’s Bench. [40] Finally, I am left to deal with the motion judge’s exercise of his discretion in declining to order a stay with respect tothat portion of Briones’ claim that was clearly subject to arbitration or mediation. With respect to that issue, the motion judge said (atparas. 61-62):

A partial stay of an action should be granted only if it is reasonable to separate the matters subject to arbitration from the other matters inthe litigation. The arbitration must give way to litigation where there are overlapping matters that cannot be reasonably separated. In myview, the claims against Money Mart under the UTRA and the CPA and those against Dollar Financial (which I have concluded are notsubject to arbitration) are inextricably linked to Ms. Briones’ claims against Money Mart outside of the UTRA and the CPA (which aresubject to arbitration). They are based on essentially the same facts.

Having regard to this link, the undesirability and inefficiency ofmultiple proceedings, and the risk of potential inconsistent results, it is my view that it would be unreasonable to separate these claimsand have parallel proceedings in this court and before an arbitrator.

As to Money Mart’s argument that Seidel has expressly approved bifurcated arbitration and litigation proceedings, there was no issue inSeidel as to whether a partial stay should be granted as the Commercial Arbitration Act (British Columbia), R.S.B.C. 1996, c. 55, didnot have a provision equivalent to s. 7(5) of the Arbitration Acts of Manitoba, Alberta, and Ontario. (See also Toronto CommunityHousing Corp. v. Thyssenkrupp Elevator (Canada) Ltd., supra, paras. 302-310.) [41] He also said (at paras. 66-67): A mediation clause is analogous to an agreement to arbitrate (Cable & Wireless plc v.

IBM United Kingdom Ltd., [2002] E.W.H.C.2059; Computershare Ltd. v. Perpetual Registrars Ltd. and Ors (No. 2), [2000] V.S.C. 233; 3130231 Manitoba Ltd. v. BurntwoodRegional Health Authority Inc. (2000), 2000 MBQB 106 , 98 A.C.W.S. (3d) 106; 2000 MBQB 106; Chrysler Canada Inc.). Staying this action based on the mediation clause necessarily invokes this court’s jurisdiction to stay proceedings under s. 38 of theCourt of Queen’s Bench Act.

Like Macleod, J., in Young (paras. 49, 50), I am of the view that it would make little sense to exercisemy jurisdiction to stay the action in favour of mediation given my other conclusions. The same considerations apply. [42] I have doubts as to whether the motion judge’s partial stay is in fact subject to appeal, but, in the event that it is, I am ofthe view that his decision was but a logical and reasonable extension of the decision he arrived at with respect to the substantive issuethat was before him.

I would not interfere with what was a proper exercise of his discretion. [43] For all of the above reasons, I have not been persuaded that the motion judge erred in denying Money Mart’sapplication to stay the proceedings against it and, accordingly, I would dismiss the appeal with costs. J.A. I agree: J.A. I agree: J.A. Appendix A In Seidel v.

TELUS Communications Inc., 2011 SCC 15 at para. 21, [2011] 1 S.C.R. 531, the Supreme Court of Canada considered: 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 thewaiver 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 Stay of proceedings 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. . . . . . International Commercial Arbitration Centre rules 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 Class certification 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. Court may stay any other proceeding 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. 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. In Young v. Dollar Financial Group Inc. et al. , 2012 ABQB 601 , 550 A.R. 114; 2013 ABCA 264 , 556 A.R. 173, the Alberta Court of Queen’s Bench and the Alberta Court of Appeal considered the following: Arbitration Act , R.S.A., 2000 c. A-43 Stay 7

(1) If a party to an arbitration agreement commences a proceeding in a court in respect of a matter in dispute to be submitted to arbitration under the agreement, the court shall, on the application of another party to the arbitration agreement, stay the proceeding.

(2) The court may refuse to stay the proceeding in only the following cases: (

a) a party entered into the arbitration agreement while under a legal incapacity; (

b) the arbitration agreement is invalid;

(

c) the subject-matter of the dispute is not capable of being the subject of arbitration under Alberta law; (

d) the application to stay the proceeding was brought with undue delay; (

e) the matter in dispute is a proper one for default or

summary judgment.

(3) An arbitration of the matter in dispute may be commenced or continued while the application is before the court.

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

a) no arbitration of the matter in 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’s refusal is without effect.

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

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

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

(6) There is no appeal from the court’s decision under this section. Fair Trading Act , R.S.A., 2000, c. F-2

Interpretation 1

(1) In this Act, . . . . . (c) “consumer transaction” … (

i) the supply of goods or services by a supplier to a consumer as the result of a purchase, lease, gift, contest or other arrangement, or . . . . . (e) “goods” …

(

i) any personal property that is used or ordinarily used primarily for personal, family or household purposes. . . . . . (k) “services” … any service offered or provided primarily for personal, family or household purposes .... . . . . . In January 2006, “services” was amended to include “any credit agreement.” Credit agreement in the same legislation is broadly defined and includes the loans here. Act prevails 2

(1) Any waiver or release by a person of the person’s rights, benefits or protections under this Act or the regulations is void. . . . . . Court action by consumer 13

(1) When a consumer (

a) has entered into a consumer transaction, and (

b) in respect of that consumer transaction, has suffered damage or loss due to an unfair practice, that consumer may commence an action in the Court of Queen’s Bench for relief from that damage or loss against any supplier or any principal, director, manager, employee or agent of a supplier who engaged in or acquiesced in the unfair practice that caused that damage or loss.

(2) In an action under this section, the Court of Queen’s Bench may (

a) declare that the practice is an unfair practice; (

b) award damages for damage or loss suffered; (

c) award punitive or exemplary damages; (

d) make an order for (

i) specific performance of the consumer transaction, (ii) restitution of property or funds, or

(iii) rescission of the consumer transaction; (

e) grant an order in the nature of an injunction restraining the supplier from engaging in the unfair practice; (

f) make any directions and grant any other relief the Court considers proper.

(3) In determining whether to grant any relief under this

section and the nature and extent of the relief, the Court of Queen’s Bench must consider whether the consumer made a reasonable effort to minimize any damage resulting from the unfair practice and to resolve the dispute with the supplier before commencing the action in the Court.

(4) The Court of Queen’s Bench may award costs in accordance with the Alberta Rules of Court . . . . . . Arbitrations 16 Despite any provision of this Act, neither a consumer nor the Director may commence or maintain an action or appeal under s. 13 to s. 15 if the consumer’s cause of action under those sections is based on a matter that the consumer has agreed in writing to submit to arbitration and the arbitration agreement governing the arbitration has been approved by the Minister. Unconscionable Transactions Act , R.S.A., 2000, c.

U-2 Powers of court 2 When, in respect of money lent, the court finds that, having regard to the risk and to all the circumstances, the cost of the loan is excessive and that the transaction is harsh and unconscionable, the court may (

a) reopen the transaction, take an account between the creditor and the debtor and relieve the debtor from payment of any sum in excess of the sum adjudged by the court to be fairly due in respect of the principal and the cost of the loan; (

b) notwithstanding any statement or settlement of account or any agreement purporting to close previous dealings and create a new obligation, reopen an account already taken and relieve the debtor from payment of any sum in excess of the sum adjudged by the court to be fairly due in respect of the principal and the cost of the loan; (

c) order the creditor to repay any such excess if it has been paid or allowed on account by the debtor; (

d) set aside either wholly or in part or revise or alter any security given or agreement made in respect of the money lent, and, if the creditor has parted with the security, order the creditor to indemnify the debtor. Exercise of powers 3 The powers conferred by s. 2 may be exercised

(

a) in an action or proceeding by a creditor for the recovery of money lent; (

b) in an action or on an originating notice brought by the debtor, notwithstanding any provision or agreement to the contrary and notwithstanding that the time for repayment of the loan or any instalment of the loan has not arrived; (

c) in an action or proceeding in which the amount due or to become due in respect of money lent is in question. Judicature Act , R.S.A. 2000, c. J-2 Restraint by prohibition, injunction 18

(1) No proceeding at any time pending in the Court shall be restrained by prohibition or injunction, but each matter of equity on which an injunction against the prosecution of the proceeding might formerly have been obtained either unconditionally or on any terms or conditions may be relied on by way of defence in the proceeding.

(2) Nothing in subsection (1) disables the Court from directing, if it thinks fit, a stay of proceedings in a proceeding pending before it, and any person, whether a party or not to any proceeding at any time pending in the Court (

a) who would have been entitled formerly to apply to a court to restrain the prosecution of it, or (

b) who may be entitled to enforce by attachment or otherwise a judgment, decree, rule or order contrary to which all or part of the proceedings may be taken, may apply to the Court for a stay of proceedings in the proceeding either generally or so far as might be necessary for the purposes of justice, and the Court shall on that application make any order that will be just. Section 5(3)(

f) addresses this court’s power to prevent a multiplicity of proceedings. That

section states: Additional Powers of Court 5 (1) …. . . . . .

(3) For the purpose of removing any doubt, but not so as to restrict the generality of subsections (1) and (2), it is declared that the Court has the like jurisdiction and powers that by the laws of England were, on July 15, 1870, possessed and exercised by the Court of Chancery in England in respect of . . . . .

(

f) preventing the multiplicity of actions, . . . . . And in the present case the motion judge considered: The Arbitration Act , C.C.S.M., c. A120

Definitions 1(1) In this Act, “ arbitration agreement ” means, subject to subsections (2) and (3), an agreement or part of an agreement by which two or more persons agree to submit a matter in dispute to arbitration; . . . . . Stay 7(1) Subject to subsection (2), if a party to an arbitration agreement commences a proceeding in a court in respect of a matter in dispute to be submitted to arbitration under the agreement, the court shall, on the motion of another party to the arbitration agreement, stay the proceeding. Refusal to stay 7(2) The court may refuse to stay the proceeding in only the following cases: . . . . . (

b) the arbitration agreement is invalid; (

c) the subject-matter of the dispute is not capable of being the subject of arbitration under Manitoba law; . . . . . No arbitration if stay refused 7(4) If the court refuses to stay the proceeding, (

a) no arbitration of the matter in 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’s refusal is without effect. Partial stay 7(5) The court may stay the proceeding with respect to the matters in dispute dealt with in the arbitration agreement and allow the proceeding to continue with respect to other matters if it finds that, (

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

b) it is reasonable to separate the matters in dispute dealt with in the agreement from the other matters. . . . . . Ruling on jurisdiction and objections 17(1) An arbitral tribunal may rule on its own jurisdiction to conduct the arbitration and may in that connection rule on objections with respect to the existence or validity of the arbitration agreement. Questions of law 17(2) The arbitral tribunal may determine any question of law that arises during the arbitration.

Arbitration agreement part of another agreement 17(3) If the arbitration agreement forms part of another agreement, it shall, for the purpose of a ruling on jurisdiction, be treated as an independent agreement that may survive even if the main agreement is found to be invalid. . . . . . Application of law and equity 31 An arbitral tribunal shall decide a matter in dispute in accordance with law, including equity, and may order specific performance, injunctions and other equitable remedies. The Consumer Protection Act , C.C.S.M., c.

C200 in force prior to April 1, 2007 Recovery of excess costs of borrowing 25(3) Where a credit grantor, in a transaction to which

section 13 or 14 applies, receives from the borrower payment of any cost of borrowing in excess of the amount permitted by this Act or by the Interest Act (Canada) , the borrower may recover from the credit grantor the amount of excess. The Consumer Protection Act , C.C.S.M., c. C200 in force after April 1, 2007 Incorrect disclosure statement

56(1) Subject to the Interest Act (Canada) and to subsections (2) to (5), if a disclosure statement required under Division 2, 3 or 4 of this Part, other than under

section 34.2, 35.1 or 38, (

a) does not, though required, contain a statement of the interest rate or APR; (

b) understates the APR by more than the margin permitted by the regulations; (

c) for fixed credit, omits or incorrectly states any of the information required by clause 34.3(b), (c), (i), or (

o) or subclause 34.3(g)(ii); (

d) for open credit, omits or incorrectly states any of the information required by clause 35.2(a), (b), (c), (d), (e), (

g) or (n); or (

e) for a lease, omits or incorrectly states any of the information required by clause 39(1)(e), (f), (g), (p), or (r); the credit grantor may collect from the borrower only an amount equal to the lesser of the cash price or the amount that remains owing from time to time, plus simple interest at the legal rate. The interest is to be applied and calculated from the date of the document. If the borrower has paid the credit grantor more than the amount determined under this subsection, the credit grantor must refund to the borrower that excess amount. The Consumer Protection Act , C.C.S.M., c.

C200 (in force at all material times) Agreements waiving benefits 96 Every agreement or bargain, oral or written, expressed or implied, that any provision of this Act or the regulations does not apply, or that a benefit or remedy under this Act or the regulations is not available, or that in any way limits or abrogates, or in effect limits, modifies, or abrogates, a benefit or remedy under this Act or the regulations, is void; and moneys paid under or by reason of the agreement or bargain are recoverable in the court. The Unconscionable Transactions Relief Act , C.C.S.M., c.

U20 Power of court 2 Where, in respect of money lent, the court finds that, having regard to the risk and to all the circumstances at the time the loan was made, the cost of the loan is excessive or that the transaction is harsh or unconscionable the court may, (

a) re-open the transaction and take an account between the creditor and the debtor; (

b) notwithstanding any statement or settlement of account or any agreement purporting to close previous dealings and create a new obligation, re-open any account already taken and relieve the debtor from payment of any sum in excess of the sum adjudged by the court to be fairly due in respect of the principal and the cost of the loan; (

c) order the creditor to repay any such excess if it has been paid or allowed on account by the debtor;

(

d) set aside either wholly or in part, or revise or alter, any security given or agreement made in respect of the money lent, and, if the creditor has parted with the security, order him to indemnify the debtor. Exercise of powers of court 3 The powers conferred by

section 2 may be exercised, (

a) in an action or proceeding by a creditor for the recovery of money lent; (

b) in an action or proceeding by the debtor notwithstanding any provision or agreement to the contrary, and notwithstanding that the time for repayment of the loan or any installment thereof has not arrived; (

c) in an action or proceeding in which the amount due or to become due in respect of money lent is in question. Relief in court 4 In addition to any right that a debtor may have under this or any other Act or otherwise in respect of money lent, he may apply for relief under this Act to a judge of the court. Both The Consumer Protection Act and The Unconscionable Transactions Relief Act define “court” as the Court of Queen’s Bench. The Court of Queen’s Bench Act , C.C.S.M., c.

C280 Stay of proceedings 38 The court, on its own initiative or on motion by a person, whether or not a party, may stay a proceeding on such terms as are considered just. The Arbitration Act , C.C.S.M., c. A120 Refusal to stay 7(2) The court may refuse to stay the proceeding in only the following cases: (

a) a party entered into the arbitration agreement while under a legal incapacity; (

b) the arbitration agreement is invalid; (

c) the subject-matter of the dispute is not capable of being the subject of arbitration under Manitoba law;

(

d) the motion was brought with undue delay; (

e) the matter in dispute is a proper one for default or

summary judgment. No appeal 7(6) There is no appeal from the court’s decision under this section