1008485 Alberta Ltd., et al. v. H. Craig Day

(Alberta) (Civil) (By Leave)


Contracts - Class actions.


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Contracts – Class actions – Stay of proceedings – Are class action waiver clauses in consumer contracts enforceable if they operate independently of any arbitration provision? - If the language of a class action waiver clause is clear and unambiguous, on what grounds or in what circumstances should a court decline to enforce a class action waiver clause? – Are class action waiver clauses in consumer contracts are unconscionable per se, or presumed to be unconscionable, or must be proven to be unconscionable, or contrary to public policy, or inconsistent with the scheme and purpose of class action statutes.

As representative plaintiffs, Day and Young claim that the fees charged by the applicant Money Mart for short term or “payday” loans are unlawful. The written loan documentation contained clauses requiring the arbitration of any disputes relating to the loan contract. There were separate clauses with respect to class action litigation. The most recent version reads in part:

Each party also agrees not to commence or participate in any class action either as a representative Plaintiff or as a member of a Plaintiff class, and to opt out of any class action, if the class action involves, directly or indirectly, any Claim.

The applicants brought a motion to dismiss or stay the proceedings on the grounds that the representative plaintiffs had agreed in writing to proceed with mediation or arbitration of the disputes against Money Mart, and that they had also agreed in writing not to participate in class actions. These motions to stay were dismissed, as were the subsequent appeals to the Court of Appeal for Alberta.