On November 6, Siskinds represented the Intervener Consumers’ Association of Canada (“CAC”) in the Supreme Court’s hearing of TELUS v. Wellman. The Court’s decision could have major implications on Canadians’ access to the civil justice system.
The Wellman appeal arose from a certified class proceeding directed at TELUS’s practice of “rounding-up” calls to the next minute for billing purposes. In 2014, TELUS brought a motion to stay the proceeding with respect to some claimants on the basis of an arbitration clause in their customers’ contracts. While section 6(5) of Ontario’s Consumer Protection Act, 2002 deems such clauses inapplicable where an individual is a consumer—that is, a person acting for personal, family, or household purposes, and not business purposes—there exists no such legislative exemption for “non-consumers.”
Ontario’s Superior Court and Court of Appeal declined to stay the non-consumer claims by relying on section 7(5) of the Arbitration Act, 1991 (the “Act”).[1] Ontario courts have historically interpreted section 7(5) to allow otherwise arbitrable claims to proceed in court where it would be unreasonable to separate the matters dealt with in the arbitration agreement from other matters captured by the litigation. In the class action context, this has meant that non-consumer claimants who would otherwise be subject to an arbitration clause can participate in a class action where a court deems it reasonable.
In Wellman, TELUS advanced a construction of the Act that would not permit such a discretion. The CAC intervened to set TELUS’s interpretation of the Act against the core functions of the Class Proceedings Act, and argued that TELUS’s interpretation of section 7(5) would allow corporations to devise contractual immunity from liability for small claims. CAC’s position addressed the important role that class actions play in providing Canadians with access to the civil justice system, and modifying the behaviour of corporate actors.
[1] See 2014 ONSC 3318 and 2017 ONCA 433