Case information

Contracts — Arbitration agreement — Class action provision — Arbitration agreement imposes total ban on class action in court of law or arbitration — Realistic prospect that arbitrator would not apply Competition Act to claims advanced by Canadians in relation to conduct occurring in Canada — Whether agreement void —Whether that prospect constitutes public policy reason to not enforce arbitration clause — Competition Act, R.S.C. 1985, c. C-34.

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The respondents (collectively, “Amazon”) require all purchasers using Amazon.ca to create an account with Amazon.ca. In order to do that, they must agree to certain Conditions of Use. The Conditions of Use applicable to Mr. Williams include an agreement to arbitrate all disputes, with specific exceptions. It explained arbitration and the process to be taken by the purchaser, chose certain U.S. law as the applicable law, and waived the right to proceed by a class, consolidated or representative action.

Mr. Williams claimed damages under the Competition Act, R.S.C. 1985, c. C-34, and for the tort of conspiracy, an accounting and restitution (alternatively, disgorgement of benefits received), relief under the Business Practices and Consumer Protection Act, S.B.C. 2004, c. 2 (“BPCPA”), and punitive damages. When he served Amazon with an application for certification, it applied to have the non-consumer claims (those not brought under s. 172 of the BPCPA) stayed. (A stay was not sought for other claims because the operative legislation had previous been found to override arbitration agreements.)

The motion judge stayed the proceeding in relation to the non-consumer claims. The Court of Appeal dismissed the appeal.