TELUS Communications Inc. v. Avraham Wellman
(Ontario) (Civil) (By Leave)
Civil procedure - Class actions, Consumer protection, Arbitration - Civil procedure - Class actions - Consumer protection - Arbitration - Whether the Court of Appeal erred in holding that s. 7(5) of the Arbitration Act permits a court to refuse to stay the claims of business customers that are subject to an enforceable arbitration agreement - Consumer Protection Act, 2002, S.O. 2002, c. 30, s. 7 - Arbitration Act, 1991, S.O. 1991, c. 17, s. 7(5).
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The action involves claims by consumer and business customers against TELUS Communications Inc. Mr. Wellman, the representative plaintiff claims that during the class period, TELUS overcharged customers by rounding up calls to the next minute without disclosing this practice. TELUS’ contracts contained standard terms and conditions, including a mandatory arbitration clause. TELUS conceded that the effect of s. 7(2) of the Consumer Protection Act, 2002, S.O. 2002, c. 30, Sched. A is that claims in respect of consumer contracts can proceed in court. It submits, however, that non-consumer claims, that is the claims of the business customer, are governed by the mandatory arbitration clause and ought to have been stayed.
The motions judge certified the class to include both consumers and non-consumers. It was determined that it would be unreasonable to separate the consumer and non-consumer claims and the motions judge declined to grant a partial stay. The issue on appeal was whether the motions judge erred in refusing to stay the non-consumer claims pursuant to s. 7(5) of the Arbitration Act, 1991, S.O. 1991, c. 17 which provides for a partial stay of court proceedings to be granted where an arbitration agreement deals with only some of the matters in respect of which the proceeding was commenced and it is reasonable to separate the matters dealt with in the agreement from the other matters. On appeal, it was concluded that the motions judge was correct in applying Griffin v. Dell Canada Inc., 2010 ONCA 29, 98 O.R. (3d) 481 to determine whether a partial stay of proceedings should be granted under s. 7(5) of the Arbitration Act in a proposed class proceeding involving both consumer and business customer claims. The appeal of TELUS was therefore dismissed.
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