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Seidel v. Telus Com. Inc. (2011), 412 N.R. 195 (SCC)
Each headnote includes the full style
of cause, file number and neutral
citation.
Michelle Seidel (appellant) v. TELUS Communications Inc. (respondent) and Barreau du
Québec, Canadian Arbitration Congress and ADR Chambers Inc. (intervenors)
(33154; 2011 SCC 15; 2011 CSC 15)
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Indexed As: Seidel v. Telus Communications Inc.
Supreme Court of Canada
McLachlin, C.J.C., Binnie, LeBel, Deschamps, Fish, Abella, Charron, Rothstein and Cromwell,
JJ.
March 18, 2011.
Each headnote contains a procedural
summary outlining the history of the
case and the issues.
Summary:
The plaintiff, a customer of TELUS cellular services, commenced an intended class
action against TELUS. The statement of claim included a variety of complaints, including some
that invoked rights, benefits or protections under the British Columbia Business Practices and
Consumer Protection Act (BPCPA). TELUS applied to stay proceedings under s. 15 of the
Commercial Arbitration Act, relying on an arbitration clause in the plaintiff's renewal contract
which provided that disputes would be settled by "private and confidential" mediation or
arbitration.
The British Columbia Supreme Court, in a decision reported [2008] B.C.T.C. Uned. 573,
denied the stay. TELUS appealed.
The British Columbia Court of Appeal, in a decision reported 267 B.C.A.C. 266; 450
W.A.C. 266, allowed the appeal and stayed the plaintiff's action in its entirety. The plaintiff
appealed.
The Supreme Court of Canada, LeBel and Deschamps, JJ., dissenting (Abella and
Charron, JJ., concurring), allowed the appeal in part, and lifted the stay in relation to the claims
under s. 172 of the BPCPA, allowing those claims to go forward as candidates for certification.
Each headnote contains summaries of the points of law
(topics) arising in the case - Each topic is assigned a key
number - the same number is assigned each time that point
arises - simply click on the link to find the other cases !
Arbitration - Topic 2502.1
Stay of proceedings - Jurisdiction - The plaintiff, a customer of TELUS cellular services,
commenced an intended class action against TELUS, invoking, inter alia, rights, benefits
or protections under s. 172 of the British Columbia Business Practices and Consumer
Protection Act (BPCPA) - TELUS applied to stay proceedings on the basis of an
arbitration clause in the plaintiff's renewal contract - TELUS relied on Dell Computer
Corp. v. Union des consommateurs and Muroff v. Rogers Wireless (both 2007 Supreme
Court of Canada decisions), in which Quebec class certification proceedings were stayed
pending the arbitration of consumer disputes - The Supreme Court of Canada held that
the plaintiff had a statutory right to proceed with her s. 172 claims - The court opined that
this outcome was not in conflict with Dell and Muroff - The court stated that for purposes
of the TELUS appeal, the relevant teaching of Dell and Rogers Wireless was simply that
whether and to what extent the parties' freedom to arbitrate was limited or curtailed by
legislation depended on a close examination of the law of the forum where the irate
consumers commenced their court case - Dell and Rogers Wireless stood for the
enforcement of arbitration clauses absent legislative language to the contrary - See
paragraphs 41 and 42.
Arbitration - Topic 2502.1
Stay of proceedings - Jurisdiction - Section 172 of the Business Practices and Consumer
Protection Act (BPCPA) contained a remedy whereby certain aggrieved persons "may"
bring an action in Supreme Court" to enforce the statute's consumer protection standards
- The Supreme Court of Canada discussed the meaning of the word "may" in s. 172 - The
court held that "may" meant that an individual had the option to complain or not
complain; however, if a s. 172 action was taken it had to be taken in the Supreme Court The court stated that the statutory purpose of the BPCPA was all about consumer
protection, and as such, its terms should be interpreted in favour of consumers - 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 - See paragraphs
33 to 37.
Our editors include topics on statutory interpretation,
practice and ethics whenever such issues are
discussed by the court, regardless of the nature of the
case.
Statutes - Topic 2417
Interpretation - Interpretation of words and phrases - "May" and "shall" - [See second
Arbitration - Topic 2502.1].
Headnotes include notations when Words and Phrases are
interpreted by the court. To find other judicially interpreted
words and phrases, use the Search Tools on the home page.
Words and Phrases
May - The Supreme Court of Canada discussed the meaning of the word "may" in s. 172
of the Business Practices and Consumer Protection Act, S.B.C. 2004, c. 2 - See
paragraphs 33 to 37.
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Cases Noticed:
Griffin v. Dell Canada Inc. (2010), 259 O.A.C. 108; 98 O.R.(3d) 481; 2010 ONCA 29,
refd to. [para. 1].
Dell Computer Corp. v. Union des consommateurs et al., [2007] 2 S.C.R. 801; 366
N.R. 1; 2007 SCC 34, refd to. [paras. 4, 65].
Muroff v. Rogers Wireless Inc., [2007] 2 S.C.R. 921; 365 N.R. 177; 2007 SCC 35, refd
to. [paras. 12, 65].
MacKinnon v. National Money Mart Co. et al. (2004), 203 B.C.A.C. 103; 332 W.A.C.
103; 50 B.L.R.(3d) 291; 2004 BCCA 473, refd to. [paras. 14, 62].
Scott v. Avery (1856), 5 H.L.C. 811; 10 E.R. 1121, refd to. [para. 90].
Johnston v. Western Assurance Co. (1879), 4 O.A.R. 281, refd to. [para. 90].
(Sample only, there are numerous other cases noticed in this headnote)
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Statutes Noticed:
Class Proceedings Act, R.S.B.C. 1996, c. 50, sect. 4(1), sect. 4(2), sect. 13 [para. 21].
Commercial Arbitration Act, R.S.B.C. 1996, c. 55, sect. 15 [paras. 21, 110]; sect. 22
[paras. 21, 111].
Books, journals, articles, etc. relied on by the courts are
included in the "Authors & Works Noticed" portion of the
headnote.
Authors and Works Noticed:
Bachand, Frédéric, Should No-Class Action Arbitration Clauses Be Enforced?, in
Rovine, Arthur W., Contemporary Issues in International Arbitration and
Mediation: The Fordham Papers 2008 (2009), p. 162 [para. 23].
British Columbia, Law Reform Commission, Report on Arbitration (1982), generally
[para. 104].
Bromfield, Heather, The Denial of Relief: The Enforcement of Class Action Waivers in
Arbitration Agreements (2009), 43 U.C. Davis L. Rev. 315, generally [para. 166].
Casey, J. Brian, and Mills, Janet, Arbitration Law of Canada: Practice and Procedure
(2005), pp. 2, 3 [para. 89]; 147 [para. 28]; 151 [para. 145]; 228, 229 [para. 102].
Côté, Pierre André, Beaulac, Stéphane, and Devinat, Mathieu, Interprétation des lois (4th
Ed. 2009), para. 286 ff. [para. 111].
(Sample only, there were numerous other authors mentioned in this headnote)
Each headnote includes the names of
counsel and solicitors of record (if
available).
Counsel:
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 intervenor, Barreau du Québec;
Ivan G. Whitehall, Q.C., and Alejandro Manevich, for the intervenor, the Canadian
Arbitration Congress;
Barry Leon, Andrew de Lotbinière McDougall and Daniel Taylor, for the intervenor,
ADR Chambers Inc.
Solicitors of Record:
Grant Kovacs Norell, Vancouver, B.C., for the appellant;
Farris, Vaughan, Wills & Murphy, Vancouver, B.C., for the respondent;
B C F, Montréal, Quebec, for the intervenor, Barreau du Québec;
Heenan Blaikie, Ottawa, Ontario, for the intervenor, the Canadian Arbitration Congress;
Perley-Robertson, Hill & McDougall, Ottawa, Ontario, for the intervenor, ADR
Chambers Inc.
Each headnote contains a paragraph of general
information about the case, including the hearing
date, the judge's name, date of decision, judicial
district, etc.
This appeal was heard on May 12, 2010, by McLachlin, C.J.C., Binnie, LeBel,
Deschamps, Fish, Abella, Charron, Rothstein and Cromwell, JJ., of the Supreme Court of
Canada. The decision of the court was rendered on March 18, 2011, when the following opinions
were filed in both official languages:
Binnie, J. (McLachlin, C.J.C., Fish, Rothstein and Cromwell, JJ., concurring) see paragraphs 1 to 51;
LeBel and Deschamps, JJ. (Abella and Charron, JJ., concurring), dissenting - see
paragraphs 52 to 176.
[End headnote]
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