Date: 20130214
Docket: A-487-11
Citation: 2013 FCA 38
CORAM: NADON
J.A.
GAUTHIER
J.A.
TRUDEL
J.A.
BETWEEN:
KERRY MURPHY
Appellant
and
AMWAY CANADA CORPORATION
and
AMWAY GLOBAL
Respondents
REASONS FOR JUDGMENT
NADON J.A.
[1]
On
October 23, 2009, the appellant, Kerry Murphy, began a proposed class action
proceeding against Amway Canada Corporation and Amway Global (hereinafter the
“respondent”), claiming that their business practices were in violation of
sections 52, 55 and 55.1 of the Competition Act, R.S.C. 1985, c. 34. The
appellant’s proposed class action proceeding prompted the respondent to file
several motions, including a motion to stay and to compel arbitration, which
Boivin J. (the “Judge”) of the Federal Court of Canada allowed with costs on
November 23, 2011, reported as 2011 FC 1341. As a result, the appellant’s class
proceeding was stayed.
[2]
The
Judge’s decision has led to the appeal now before us, wherein the appellant
seeks to have the stay granted by the Judge set aside to pursue his class
proceeding before the Federal Court. One of the questions raised by the appeal
is whether the Judge’s decision can be appealed to this Court. If that question
is answered in the affirmative, then the second question we must address is
whether the substantive issues raised by the appellant in his Statement of
Claim are issues which, although clearly within the ambit of the Agreement to
Mediate and Arbitrate Disputes (the “Arbitration Agreement”) entered into by
the parties, are indeed arbitrable.
The Facts
[3]
The
appellant is a small business owner and is registered as an Independent
Business Owner (“IBO”) under the umbrella of the respondent, Amway Canada (also operating under its trade name, Amway Global). Amway Canada is a wholesaler of home, personal care, beauty, and health products. It sells its products
through a multi-level marketing plan. It is structured with a large number of
IBOs, who in turn recruit additional distributors for further sales, resulting
in multiple levels of distribution. Each IBO must review the Business
Opportunity brochure and sign a Registration Agreement in order to become part
of the distribution framework. The Registration Agreement, which every
individual must execute in order to become an IBO, includes an Arbitration
Agreement, wherein the parties agree to submit any possible claims to
arbitration. The Registration Agreement incorporates by reference the IBO
Compensation Plan and the Amway Rules of Conduct (the “Rules of Conduct”).
[4]
The
appellant registered, in the province of British Columbia, as an IBO with Amway
Canada four separate times over the course of a number of years (first
registration in 1980-82). For the purpose of this appeal, suffice it to say
that the appellant registered as an IBO on June 5, 2008, which registration was
valid until the end of that year. On November 26, 2008, the appellant renewed
his registration for the year 2009 and that registration expired on December
31, 2009.
[5]
On
October 23, 2009, the appellant commenced proceedings in the Federal Court of
Canada, pursuant to section 36 of the Competition Act. By his Statement
of Claim, the appellant alleged that, inter alia, the respondent was
operating a multi-level marketing plan, as that term is defined in subsection
55(1) of the Competition Act, and that in the operation thereof, the
respondent had failed to provide its distributors with accurate information
concerning the compensation which they could earn. The appellant further
alleged that the respondent operated an illegal scheme of pyramid-selling in
violation of subsection 55(1) of the Competition Act, and that the
respondent’s business was built on the misleading of potential distributors
with regard to the business opportunities that were offered to them by the
respondent. In so doing, the appellant said that the respondent was in breach
of sections 52 and 55 of the Competition Act.
[6]
Consequently,
the appellant sought damages in the sum of $15,000 and filed a motion for the
certification of a proposed class action. No other potential class members were
identified.
[7]
Following
the filing of the appellant’s Statement of Claim and his proposed class
proceeding, the respondent filed a motion for an order dismissing or
permanently staying the appellant’s action and to compel arbitration on the
ground that the Federal Court had no jurisdiction. More particularly, the
respondent argued that the matters raised in the Statement of Claim were
subject to compulsory arbitration under the terms of the Arbitration Agreement
entered into by the parties.
[8]
On
May 5, 2010, Mainville J. of the Federal Court (as he then was) directed that
the respondent’s motion be heard on June 18, 2010 (2010 FC 498).
[9]
On
June 18, 2010, Mainville J. heard the respondent’s motion, and on July 2, 2010,
he delivered his reasons in support of an order dismissing the respondent’s
motion with costs (2010 FC 724). As Mainville J. explained at paragraph 3 of
his reasons, the parties had argued before him at the hearing which led to his
direction of May 5, 2010, that the respondent’s motion to stay and to compel
arbitration raised the issue of the scope, validity and enforceability of the
Arbitration Agreement, and of the limited class action waiver contained
therein, and whether that issue should be decided by the Federal Court or by an
arbitrator.
[10]
However,
as Mainville J. further explained at paragraph 4 of his reasons, the parties
took a different view of the respondent’s motion to stay and to compel
arbitration at the hearing before him on June 18, 2010. More particularly, the
parties limited their arguments on the motion to the question of whether the
issue raised by the motion should be decided by the Federal Court or by an
arbitrator. Thus, the hearing before Mainville J. proceeded on the
jurisdictional issue only, leaving aside the substantive issue which, per the
parties’ agreement, would be decided later by an arbitrator in arbitration
proceedings or by the Federal Court at the certification stage of the class
action.
[11]
After
canvassing the arguments submitted the appellant and the respondent, Mainville
J. closely examined the Arbitration Agreement concluded between the parties
and, more particularly, Rules 11.3.9 and 11.3.10 of the Rules of Conduct,
pointing out that the parties were in agreement that their binding Arbitration
Agreement applied and that it was governed by the Ontario Arbitration Act,
S.O. 1991, c. 17 (the “OAA”).
[12]
In
Mainville J.’s view, the Rules of Conduct were clear in that they provided that
class action claims were excluded from arbitration and that any controversy
regarding the enforceability or applicability of the limited class action
waiver set out at Rule 11.3.9 of the Rules of Conduct was to be decided by the
Court. Consequently, he was satisfied that “class action claims and any
controversies concerning the enforceability or applicability of the limited
class action waiver are not matter[s] ‘to be submitted to arbitration under
the Arbitration Agreement’ as contemplated by subsection 7(1) of the Ontario Arbitration Act” (Mainville J.’s reasons, paragraph
20).
[13]
At
paragraph 25 of his reasons, Mainville J. held that the Arbitration Agreement
entered into by the parties conferred jurisdiction and authority on the Court
regarding class action claims and over the enforceability or applicability of
the limited class action waiver. He concluded that the substantive issue raised
by the appellant’s motion was one that had to be determined by the Federal
Court and not by an arbitrator.
[14]
On
October 3, 4, and 5, 2011, the Judge heard the parties’ arguments regarding the
substantive issue raised by the respondent’s motion, namely, the scope,
validity, and enforceability of the Arbitration Agreement and of the limited
class action waiver contained therein. As I have already indicated, the Judge
allowed the respondent’s motion with costs.
Decision of the Federal Court
[15]
After
carefully reviewing the facts, the Judge proceeded with an analysis of the
Rules of Conduct, the Arbitration Agreement, the procedural history of the
motion leading to the judgment itself, and of the recent jurisprudence
concerning class action waivers in the context of arbitration agreements and
consumer protection. In each discrete part of his judgment, the Judge set out
the position of both parties before proceeding with his analysis. He came to
the forthright conclusion that the Arbitration Agreement is applicable,
enforceable, and serves to bar the initiation of a class proceeding for any
amount exceeding $1,000.
[16]
Both
parties relied on the Supreme Court of Canada’s recent decision in Seidel v.
Telus Communications Inc., 2011 SCC 15, [2011] 1 S.C.R. 531 (“Seidel”).
The appellant invoked Seidel in his attempt to demonstrate that both the
class action waiver and a resolution of the dispute through private,
confidential arbitration were against the public interest. He argued an analogy
between the provisions of the Competition Act and the legislative scheme
at issue in Seidel, the British Columbia Business Practices and
Consumer Protection Act, SBC 2004, c. 2 (the “BPCPA”). The
respondent relied on Seidel and on other Supreme Court jurisprudence in
support of its contention that agreements to arbitrate must be enforced except
when there is clear legislative language to the contrary. In its submission, Seidel
was not analogous because of the interaction between sections 3 and 172 of the BPCPA.
[17]
The
Judge emphasized that a long line of Canadian cases have confirmed Canada’s status as an “arbitration-friendly jurisdiction”. Without express legislative
language to the contrary, courts must give effect to the parties’ agreement to
arbitrate. While the appellant submitted that such language could be found in
section 36 of the Competition Act, the Judge disagreed. In his view,
section 36 simply identifies the Federal Court as a court of competent
jurisdiction for disputes arising under Part VI of the Competition Act,
but does not declare it to be the only competent forum. Therefore, section 36
does not prevent parties from contracting out of that jurisdiction through a
valid arbitration process.
[18]
The
Judge went on to say that the comparison between section 36 of the Competition
Act and sections 3 and 172 of the BPCPA was incommensurate: Section
3 states that any waivers or releases of an individual’s rights are void unless
they are expressly permitted by the BPCPA and section 172 governs court
actions respecting consumer transactions for parties to contracts and third
parties, allowing for both declaratory and injunctive relief. Neither of these
provisions is analogous to section 36 of the Competition Act. Moreover,
the Competition Act does not contain a provision similar to section 3 of
the BPCPA. Accordingly, the Judge concluded that Seidel was not
an appropriate analogue for the instant case.
Registration Agreement
[19]
As
I indicated earlier, the Registration Agreement, amended as of September 1,
2008, includes an agreement to arbitrate and incorporates the IBO Compensation
Plan and the Rules of Conduct. The following provisions of the Arbitration
Agreement and of the Rules of Conduct are relevant to the determination of this
appeal:
Arbitration Agreement
Amway Canada Corporation d/b/a
Amway Global (“Amway Global”) and its IBOs mutually agree to resolve all claims
and disputes arising out of or relating to an Independent Business, the Amway
Global Independent Business Owner Compensation Plan (“IBO Compensation Plan”),
or the Rules of Conduct, as well as disputes involving Support Materials (SMs),
as defined below under the Dispute Resolution Procedures described in the Rules
of Conduct, specifically Rule 11. The Rules of Conduct shall be part of this
IBO Registration Agreement and are incorporated by reference.
I agree to submit any dispute I
may have with another IBO, Amway Global, or an approved seller or supplier of
SM, that is not resolved informally under Rule 11.1 to Conciliation under Rule
11.2. The Conciliation requirement is reciprocal and binds both Amway Global
and IBOs.
I further agree that if any
dispute cannot be resolved by good faith efforts in Conciliation under Rule
11.2, I will submit any remaining claim or dispute arising out of or relating
to my Independent Business, the IBO Compensation Plan, or the IBO Rules of
Conduct (including any claim against another IBO, or any such IBO’s officers,
directors, agents, or employees; or against Amway Corp. d/b/a Amway Global,
Amway Canada Corporation d/b/a Amway Global, and any parent, subsidiary, affiliate,
predecessor or successor thereof, or any of their officers, directors, agents,
or employees) as well as disputes involving SMs, to binding arbitration in
accordance with Rule 11.3. The arbitration award shall be final and binding
and judgment may be entered upon it by any court of competent jurisdiction.
Demand for arbitration shall be made within 2 years after the claim arose, but
in no event after the date when the initiation of legal proceedings would have
been barred by the applicable statute of limitations, subject to the tolling
provision in Rule 11.3.4. I acknowledge that this Agreement evidences a
transaction involving interstate and interprovincial commerce. The Ontario Arbitrations Act (1991) or any Canadian arbitration statute that may supersede it,
shall govern the interpretation, enforcement, and proceedings in any federal or
provincial court in Canada. The parties intend for the Dispute Resolution
Procedures to apply to the maximum degree possible in any arbitration. The
agreement to arbitrate and conciliate under Rule 11 is reciprocal and binds
both Amway Global and IBOs.
[Emphasis
added]
Rules of Conduct
11.3 Arbitration.
All disputes not resolved through
the process described in Rules 11.1 and 11.2 above shall be settled in arbitration
as stated below. The arbitration award shall be final and binding and judgment
thereon may be entered by any court of competent jurisdiction. As stated in
Rule 1, Michigan law applies; but IBOs and the Corporation acknowledge that
the IBO Contract and each of its parts evidence a transaction involving
interstate commerce, and the United States Arbitration Act shall govern the
interpretation and enforcement of the arbitration rules and arbitration
proceedings.
11.3.1. The arbitration
requirement is reciprocal and binds both the Corporation and IBOs.
…
11.3.5. If IBOs become
involved in a claim or dispute under the arbitration rules, they will not
disclose to any other person not directly involved in the conciliation or
arbitration process (a) the substance of, or basis for, the claim; (b) the
content of any testimony or any other evidence presented at an arbitration
hearing or obtained through discovery; or (c) the terms or amount of any
arbitration award. However, nothing in these Rules shall preclude a party from,
in good faith, investigating a claim or defense, including interviewing
witnesses and otherwise engaging in discovery.
…
11.3.7. To reduce the time
and expense of the arbitration, the arbitrator will not provide a statement of
reasons for his or her award unless requested to do so by all parties. The
arbitrator’s award shall be limited to deciding the rights and responsibilities
of the parties in the specific dispute being arbitrated.
…
11.3.9. No party to this
agreement shall assert any claim as a class, collective or representative
action if (a) the amount of the party’s individual claim exceeds $1,000, or
(b) the claiming party, if an IBO, has attained the status of Platinum either
in the current fiscal year or any prior period. This subparagraph shall be
enforceable when the applicable law permits reasonable class action waivers and
shall have no effect when the applicable law prohibits class action waivers as
a matter of law. In any case, the class action waiver provision, as well as any
other provision of Rule 11, is severable in the event any court finds it
unenforceable or inapplicable in a particular case.
11.3.10. Class action
claims are not arbitrable under these Rules under any circumstances; but in
the event a court declines to certify a class, all individual plaintiffs shall
resolve any and all remaining claims in arbitration.
[Emphasis
added]
[20]
A
few words concerning the Arbitration Agreement are in order. It begins by
incorporating the Rules of Conduct. It then states that any dispute between an
IBO and the respondent, if not resolved informally, must proceed to
conciliation. It then further states that if conciliation is not successful,
the parties must proceed to binding arbitration in accordance with Rule 11.3,
and that any arbitration award rendered will be final and binding. Lastly, the
Arbitration Agreement provides that the OAA “shall govern the
interpretation, enforcement and proceedings in any federal or provincial court
in Canada”. Although the words used by the parties are not entirely clear, I
take it that their intent was to make their Arbitration Agreement and any
proceedings undertaken in respect thereof subject to the OAA.
[21]
I
now turn to the Rules of Conduct. Rule 11.3 provides the following dispute
resolution scheme: first, if mediation is unsuccessful, the parties must
proceed to arbitrate their dispute. Second, any arbitration award made shall be
final and binding. Third, the law of the state of Michigan shall apply to the
arbitration proceedings and the United States Arbitration Act shall
govern the interpretation and enforcement of the arbitration rules and
proceedings. Fourth, a demand for arbitration must be filed with either JAMS
(the former Judicial Arbitration and Mediation Services) or the American Arbitration
Association (the “AAA”). The arbitration will be conducted in accord with the
Commercial Rules of Arbitration of either JAMS or the AAA, subject to any
modification or clarification specified in Rule 11.3. The Commercial Rules of
Arbitration and Rules of Conduct of either JAMS or the AAA shall apply to the
arbitration, and any conflict between those rules and Rule 11.3 of the Rules of
Conduct shall be resolved in favour of Rule 11.3
[22]
I
note here that there appears to be a conflict between the Arbitration Agreement
and Rule 11.3 in that the former provides for the applicability of the OAA
while the latter provides for the applicability of the United States
Arbitration Act. In my view, to the extent that the issues raised in the
appellant’s Statement of Claim are subject to arbitration, the OAA is
the applicable statute.
[23]
The
other provisions of the Rules of Conduct which are pertinent are Rules 11.3.9 and
11.3.10. Rule 11.3.9 bars the assertion of any claim as a class with regard to
claims exceeding $1,000. This is the limited class action waiver that Mainville
J. recognized in his reasons and that is at the heart of the dispute between
the parties. In other words, can the appellant assert his claim of $15,000 as a
class action in the Federal Court, notwithstanding Rule 11.3.9? With respect to
all other claims, i.e., claims not exceeding $1,000, Rule 11.3.10
provides that class action claims are not arbitrable under any circumstances.
The Rule goes on to provide, however, that if the courts refuse to certify such
a claim as a class action, the matter must be dealt with by way of arbitration.
Analysis
[24]
As
I indicated at the outset of my reasons, the first issue for determination is
whether the Judge’s decision can be appealed to this Court. If not, that is the
end of the appeal. I now turn to that question.
1. Does Subsection
7(6) of the OAA Bar this Appeal?
[25]
The
specific provision of the OAA at issue is subsection 7(6) of the OAA,
which is best viewed in the context of the entirety of section 7, which
provides as follows:
|
7. (1) If a party to an
arbitration agreement commences a proceeding in respect of a matter to be
submitted to arbitration under the agreement, the court in which the
proceeding is commenced shall, on the motion of another party to the
arbitration agreement, stay the proceeding.
(2) However, the court may
refuse to stay the proceeding in any of the following cases:
1. A party entered into the
arbitration agreement while under a legal incapacity.
2. The arbitration agreement is
invalid.
3. The subject-matter of the
dispute is not capable of being the subject of arbitration under Ontario law.
4. The motion was brought with
undue delay.
5. The matter is a proper one
for default or summary judgment.
(3) An arbitration of the
dispute may be commenced and continued while the motion is before the court.
(4) If the court refuses to
stay the proceeding,
(a) no arbitration of the
dispute shall be commenced; and
(b) an arbitration that has
been commenced shall not be continued, and anything done in connection with
the arbitration before the court made its decision is without effect.
(5) The court may stay the
proceeding with respect to the matters dealt with in the arbitration
agreement and allow it to continue with respect to other matters if it finds
that,
(a) the agreement deals with
only some of the matters in respect of which the proceeding was commenced;
and
(b) it is reasonable to
separate the matters dealt with in the agreement from the other matters.
(6) There is no appeal from
the court’s decision.
|
7. (1) Si une partie à une
convention d’arbitrage introduit une instance à l’égard d’une question que la
convention oblige à soumettre à l’arbitrage, le tribunal judiciaire devant
lequel l’instance est introduite doit, sur la motion d’une autre partie à la
convention d’arbitrage, surseoir à l’instance.
(2) Cependant, le tribunal
judiciaire peut refuser de surseoir à l’instance dans l’un ou l’autre des cas
suivants :
1. Une partie a conclu la
convention d’arbitrage alors qu’elle était frappée d’incapacité juridique.
2. La convention d’arbitrage
est nulle.
3. L’objet du différend ne peut
faire l’objet d’un arbitrage aux termes des lois de l’Ontario.
4. La motion a été présentée
avec un retard indu.
5. La question est propre à un
jugement par défaut ou à un jugement sommaire.
(3) L’arbitrage du différend
peut être engagé et poursuivi pendant que la motion est devant le tribunal
judiciaire.
(4) Si le tribunal judiciaire
refuse de surseoir à l’instance :
a) d’une part, aucun arbitrage
du différend ne peut être engagé;
b) d’autre part, l’arbitrage
qui a été engagé ne peut être poursuivi, et tout ce qui a été fait dans le
cadre de l’arbitrage avant que le tribunal judiciaire ne rende sa décision
est sans effet.
(5) Le tribunal judiciaire
peut surseoir à l’instance en ce qui touche les questions traitées dans la
convention d’arbitrage et permettre qu’elle se poursuive en ce qui touche les
autres questions, s’il constate :
a) d’une part, que la
convention ne traite que de certaines des questions à l’égard desquelles
l’instance a été introduite;
b) d’autre part, qu’il est
raisonnable de dissocier les questions traitées dans la convention des autres
questions.
(6) La décision du tribunal
judiciaire n’est pas susceptible d’appel.
|
[26]
Subsection
7(1) provides that the court in which a proceeding has been commenced shall
stay that proceeding if the matter raised by the proceeding is one which, by
reason of the Arbitration Agreement, should be submitted to an arbitrator.
Subsection 7(2) then provides for situations where the court may refuse to stay
such a proceeding. Subsection 7(4), it provides that if the court refuses to
stay the proceeding, there shall be no arbitration, and where the arbitration
has already commenced, it shall not be continued. Subsection 7(5) of the OAA
deals with situations where some of the issues raised in the proceeding fall
within the Arbitration Agreement and other issues do not. Finally, subsection
7(6) provides in unequivocal terms that the decision rendered by the court
cannot be appealed.
[27]
In my
opinion, an appeal from the Judge’s decision lies to this Court. I come to that
conclusion for the following reasons.
[28]
The
respondent, relying on subsection 7(6) of the OAA, argues that there can
be no appeal from the Judge’s decision. More particularly, the respondent
argues that because the parties have agreed to have their Arbitration Agreement
subject to the provisions of the OAA, this Court cannot, by reason of
subsection 7(6) thereof, entertain any appeal from the decision of the Federal
Court determining whether or not the issues raised in the appellant’s Statement
of Claim are issues that may properly be resolved by way of arbitration. In
support of that view, the respondent refers us to a decision of Shaw J. of the
Ontario Superior Court of Justice in Fowler v. 1752476 Ontario Ltd.,
2010 ONSC 779 (“Fowler”); and to a decision of the Ontario Court of
Appeal giving effect to subsection 7(6) of the OAA, namely, Huras v.
Primerica Financial Services Ltd., [2000] 137 OAC 79 (“Huras”) (see
also, to the same effect, the Ontario Court of Appeal’s decisions in Mantini
v. Smith Lyons LLP, [2003] 228 D.L.R. (4th) 214, 174 O.A.C. 138;
and Brown v. Murphy (2002), 59 O.R. (3d) 404). The respondent also
relies on the Alberta Court of Appeal’s decision in Lamb v. AlanRidge Homes
Ltd., 2009 ABCA 343, where that Court gave effect to a similar provision
found in the Alberta Arbitration Act, R.S.A. 2000, c. A-43. Finally, the
respondent relies on this Court’s decision in Halterm Ltd. v. Canada,
[1984] F.C.J.. No. 541 (Q.L.), 55 N.R. 541 (F.C.A.) (“Halterm”), in
which the Court gave effect to a contractual undertaking precluding an appeal
from a decision of the Federal Court.
[29]
The point
which I wish to make here is that contrary to the situation found in the cases
decided by the Ontario Court of Appeal, the OAA is not before us in this
matter by reason of force of law, but because the parties have incorporated it
into their Arbitration Agreement. In the cases decided by the Ontario Court of
Appeal, the parties had agreed to settle their disputes by way of arbitration,
and to that effect, arbitration agreements had been entered into. These
arbitration agreements were entered into in Ontario and were subject to the
provisions of the OAA. In other words, the “law of the land”, i.e.,
the law of Ontario, applied to the arbitration agreements.
[30]
Consequently,
the Ontario Court of Appeal was bound to apply the terms of the OAA to
the arbitration agreements and the proceedings instituted in connection therewith.
The same can be said with regard to the decision of the Alberta Court of
Appeal, where the parties entered into an arbitration agreement in Alberta, and the Alberta Arbitration Act was applicable thereto. Thus, like the
Ontario Court of Appeal, the Alberta Court of Appeal had no choice but to give
effect to the provisions of that statute. At paragraph 14 of its reasons, the
Alberta Court of Appeal made the following point:
In our view, section 7(6)
[identical to subsection 7(6) of the OAA] reflects an equally important
policy consideration, namely, that the process of determining whether the
parties should proceed with arbitration, or legal proceedings, should not
become bogged down by resort to the appeal process. The legislator obviously
intended that the decision of the Court of Queen’s Bench should be final,
so as to promote an expeditious determination of the forum to hear the disputes
of the parties.
[Emphasis
added]
[31]
Consequently,
notwithstanding a party’s right to appeal a final order of a judge of the
Superior Court of Justice under paragraph 6(1)(b) of the Ontario
Courts of Justice Act, R.S.O. 1990, c. C-43, the Ontario Court of Appeal
was bound to follow the Ontario legislature’s intent that decisions rendered by
a judge of the Superior Court of Justice pursuant to subsection 7(6) of the OAA
were not appealable.
[32]
However, in
the present matter, the OAA has no force of law before this Court.
Simply put, we are not bound by the terms of that statute. The question which
arises is whether the parties can, by incorporating the OAA into their
bargain, oust this Court’s jurisdiction found in subsection 27(2) of the Federal
Courts Act, R.S. 1985, c. F-7, which provides that an appeal lies from
either an interlocutory or a final judgment of the Federal Court. In my view,
the answer to that question is that the parties cannot prevent this Court from
exercising its jurisdiction to hear this appeal.
[33]
The issue
before us is not whether this Court is prepared to decline to exercise its
jurisdiction so as to give effect to the parties’ intention to settle their
disputes by way of arbitration. There is no question that this Court is
prepared to give effect to arbitration agreements if the subject matter of the
proceedings falls within the ambit thereof. Rather, the issue before us in this
appeal is whether an appeal lies from a decision which concludes that the
questions raised in the appellant’s Statement of Claim are the proper subject
of an arbitration agreement, i.e., that these questions are arbitrable. In
other words, the question which we must determine is whether the Judge’s
conclusion on the arbitrability of the matters raised in the Statement of Claim
is correct or not.
[34]
This Court
has jurisdiction pursuant to subsection 27(2) of the Federal Courts Act,
and consequently, we must hear the appeal unless there are proper grounds
justifying a refusal on our part to exercise our jurisdiction. No such grounds
have been put forward, other than the fact that the parties have incorporated
the OAA into their Arbitration Agreement. In my view, that is not
sufficient to oust this Court’s jurisdiction to hear the appeal.
[35]
There remains
for me to deal with this Court’s decision in Halterm, where Halterm Ltd.
entered into a lease agreement with the National Harbours Board regarding a
container terminal
facility
at the port of Halifax, Nova Scotia, for a term of 20 years. One of the clauses
of the agreement provided that Halterm Ltd., as lessee, could apply to the
Federal Court for a determination of the appropriate rental rate, and that
neither party would exercise any right of appeal from the decision of the
Federal Court. In concluding that the Federal Court’s decision could not be
appealed to the Federal Court of Appeal, Mahoney J.A. stated at paragraph 9 his
reasons:
…The question is the intention of
parties to a commercial contract. Ordinary commercial practice would dictate
that the settlement of such an anticipated dispute be committed to arbitration.
It seems clear that, in opting for a proceeding in the Exchequer Court, the
parties intended the judgment at first instance to be final, as an arbitrator’s
award would be, and not subject to appeal. …
[36]
In other
words, the Court viewed the Federal Court’s decision as akin to that of an
arbitrator in respect of which the parties had agreed that the decision would
be final. With respect, that is not the situation that arises in the present
matter, where the issue is whether the matter raised by the appellant’s
Statement of Claim should or should not go to arbitration.
[37]
Consequently,
it is open to us, pursuant to subsection 27(2) of the Federal Courts Act,
to hear this appeal. I now turn to a different issue.
2. Does the
Arbitration Agreement Automatically Stay a Class Proceeding Commenced in a
Court of Competent Jurisdiction?
[38]
In his Notice
of Appeal and at paragraph 18 of his Memorandum of Fact and Law, the appellant
submits that the Judge erred in his interpretation of Rules of Conduct 11.3.9
and 11.3.10. In the appellant’s view, it is only if a court refuses to certify
a class proceeding that the parties are required to proceed to arbitration.
With respect, this is not what the Rules of Conduct state. As the respondent
argues, the Rules of Conduct include both an arbitration agreement and a class
action waiver. Class actions are actually permitted for amounts below $1,000.
However, class actions that exceed $1,000 are expressly prohibited by the
Arbitration Agreement. The appellant, with his $15,000 claim, is barred from
bringing a motion for certification of a class proceeding by reason of this
provision. At paragraphs 28 and 31 of his reasons, the Judge dealt with this
issue as follows:
[28] The Court finds the
parties’ arbitration agreement to be clear. First, section 11.3.9 of the Rules
of Conduct allows class actions for an amount not exceeding $1,000. Second,
claims over $1,000 are subject to a class action waiver. Third, as stated in
section 11.3.10, class actions are not arbitrable under the Rules of Conduct
under any circumstances. Finally, for claims under $1,000, in the event a court
declines to certify a class, all individual plaintiffs shall resolve any and
all remaining claims in arbitration.
…
[31] Against this background,
and considering the clear wording of both sections 11.3.9 and 11.3.10, the Court
rejects the plaintiff’s contention that the Court has jurisdiction over its
class action claim and accordingly concludes that the plaintiff’s claim for
$15,000 must be heard (i) by an arbitrator and (ii) on an individual basis in
accordance with the parties’ arbitration agreement.
[39]
The
respondent points out, correctly in my view, that the appellant’s arguments in
this appeal are directed solely at the arbitrability issue, not to the contract
interpretation issue. Consequently, I have not been persuaded that there is any
basis to disagree with the Judge regarding the meaning of the Arbitration
Agreement subject to the appellant’s arguments regarding the arbitrability
issue, to which I now turn.
3. Is a Private Claim
for Damages under Section 36 of the Competition Act Capable of Being the
Subject of Arbitration?
[40]
The
fundamental legal issue raised by this appeal is whether a private claim for
damages brought under section 36 of the Competition Act is arbitrable.
For the reasons that follow, I conclude that it is.
[41]
The appellant
argues that private claims under section 36 are not arbitrable. From this
premise, he says that if the claim under section 36 is not arbitrable, the
Judge had no jurisdiction to stay his action, and hence, the OAA does
not apply to the dispute. The appellant says that compelling public policy
reasons and the legislative intent of the Competition Act support his
submissions. He quotes passages from the Supreme Court’s decision in General
Motors of Canada Ltd. v. City National Leasing, [1989] 1 R.S.C. 641, as it
pertains to the importance of competition to the Canadian market, the American
anti-trust experience and the public policy foundations which support
competition law. The appellant expresses concern that if forced to proceed to arbitration,
the claim under section 36 will be submitted to an American arbitrator who will
apply the laws of Michigan. The appellant contends that this undesirable
outcome, combined with the private and confidential nature of arbitration
proceedings, indicates that arbitration should not be permitted for public
interest reasons.
[42]
As he did
before the Judge, the appellant relies on the Supreme Court’s recent decision
in Seidel as authority for the proposition that the Federal Court is a
competent court of jurisdiction in which to bring forward his class action
proceeding, notwithstanding the Arbitration Agreement. In particular, the
appellant asserts a public interest rationale as justification for why the
class action should be permitted: he asserts the private and confidential
nature of arbitration as being manifestly incompatible with the underlying
objectives of the Competition Act of promoting an economic environment
free of anti-competitive practices. The appellant further argues that Seidel
stands for the proposition that public interest concerns—and in particular,
class action waivers—can displace an arbitration agreement.
[43]
The
respondent, on the other hand, says that if the appellant’s argument is
accepted, no claim under section 36 of the Competition Act could ever be
sent to arbitration, under any circumstances. The respondent goes on to
reference additional recent jurisprudence that recalls that public order
concerns do not impact whether or not arbitration is permitted: Dell
Computer Corp. v. Union des consommateurs et al, 2007 SCC 34, [2002] 2
S.C.R. 801 (“Dell”), Rogers Wireless Inc. v. Muroff, 2007 SCC 35,
[2007] 2 S.C.R. 921 (“Rogers Wireless”); Desputeaux v. Éditions
Chouette (1987) inc., [2003] 1 S.C.R. 178, 2003 SCC 17 (“Éditions
Chouette”); and Jean Estate v. Wires Jolley LLP., 2009 ONCA 339.
[44]
The
respondent submits that these decisions entirely support its view that the
matters raised by the appellant in his action brought under section 36 of the Competition
Act are matters that are arbitrable and thus subject to the Arbitration
Agreement. The respondent further submits that the cases support the
proposition that an Act, like the Competition Act, should not be
interpreted as excluding arbitration unless legislative language to the
contrary can be found in the Act. To this, the respondent adds that there is no
language to be found in the Competition Act which would exclude
arbitration as a vehicle to settle matters falling under section 36 thereof.
[45]
As a final
argument, the respondent says that the Supreme Court’s decision in Seidel
has put the last nail in the coffin. The appellant’s action under section 36 of
the Competition Act is arbitrable.
[46]
In my view,
the answer to the question of whether or not the subject matter of the
appellant’s Statement of Claim is arbitrable is found in Seidel, to
which I now turn.
[47]
In Seidel,
the Supreme Court was concerned with a dispute between Telus Communications
Inc. (“Telus”) and Ms. Seidel, one of its customers, over a cell phone contract
which provided that any disputes had to be resolved by way of a private,
confidential and binding arbitration.
[48]
Disregarding
the arbitration agreement, Ms. Seidel commenced an action in the Supreme Court
of British Columbia wherein she asserted that she was the victim of deceptive
and unconscionable business practices contrary to sections 4, 5, paragraph 8(3)(b)
and section 9 of the BPCPA. In making her claim against Telus, Ms.
Seidel invoked the remedies set out in the BPCPA at sections 171 and
172. Lastly, she sought certification to act on her own behalf and on behalf of
a class of allegedly overcharged customers, pursuant to the Class
Proceedings Act of British Columbia, R.S.B.C. 1996, C-50.
[49]
Because the
provisions at issue in Seidel are of relevance to the determination which
we have to make herein, I reproduce section 3, subsections 171(1), and
subsections 172(1) and (3) of the BPCPA. I also reproduce section 36 of
the Competition Act, which bears close similarity to subsection 171(1)
of the BPCPA (NOTE: the French version of the relevant BPCPA
provisions is reproduced from the French version of the Supreme Court’s
decision in Seidel):
|
The
BPCPA
3. Any waiver or release by a
person of the person's rights, benefits or protections under this Act is void
except to the extent that the waiver or release is expressly permitted by
this Act.
…
171. (1) Subject to subsection
(2), if a person, other than a person referred to in paragraphs (a) to (e),
has suffered damage or loss due to a contravention of this Act or the
regulations, the person who suffered damage or loss may bring an action
against a
(a)
supplier,
(b)
reporting agency, as defined in section 106 [definitions],
(c)
collector, as defined in section 113 [definitions],
(d)
bailiff, collection agent or debt pooler, as defined in section 125 [definitions],
or
(e)
a person required to hold a licence under Part 9 [Licences]
who
engaged in or acquiesced in the contravention that caused the damage or loss.
…
172. (1) The director or a person
other than a supplier, whether or not the person bringing the action has a
special interest or any interest under this Act or is affected by a consumer
transaction that gives rise to the action, may bring an action in Supreme
Court for one or both of the following:
(a)
a declaration that an act or practice engaged in or about to be engaged in by
(b)
an interim or permanent injunction restraining a supplier from contravening
this Act or the regulations.
…
(3) If
the court grants relief under subsection (1), the court may order one or more
of the following:
(a)
that the supplier restore to any person any money or other property or thing,
in which the person has an interest, that may have been acquired because of a
contravention of this Act or the regulations;
(b)
if the action is brought by the director, that the supplier pay to the
director the actual costs, or a reasonable proportion of the costs, of the
inspection of the supplier conducted under this Act;
(c)
that the supplier advertise to the public in a manner that will assure prompt
and reasonable communication to consumers, and on terms or conditions that
the court considers reasonable, particulars of any judgment, declaration,
order or injunction granted against the supplier under this section.
The Competition Act
36. (1)
Any person who has suffered loss or damage as a result of
(a) conduct that is contrary to
any provision of Part VI, or
(b) the failure of any person
to comply with an order of the Tribunal or another court under this Act,
may,
in any court of competent jurisdiction, sue for and recover from the person
who engaged in the conduct or failed to comply with the order an amount equal
to the loss or damage proved to have been suffered by him, together with any
additional amount that the court may allow not exceeding the full cost to him
of any investigation in connection with the matter and of proceedings under
this section.
(2) In any action under subsection (1) against a person, the record of
proceedings in any court in which that person was convicted of an offence
under Part VI or convicted of or punished for failure to comply with an order
of the Tribunal or another court under this Act is, in the absence of any
evidence to the contrary, proof that the person against whom the action is
brought engaged in conduct that was contrary to a provision of Part VI or
failed to comply with an order of the Tribunal or another court under this
Act, as the case may be, and any evidence given in those proceedings as to
the effect of those acts or omissions on the person bringing the action is
evidence thereof in the action.
(3)
For the purposes of any action under subsection (1), the Federal Court is a
court of competent jurisdiction.
(4)
No action may be brought under subsection (1),
(a) in the case of an action
based on conduct that is contrary to any provision of Part VI, after two
years from
(i) a day on which the conduct
was engaged in, or
(ii) the day on which any
criminal proceedings relating thereto were finally disposed of,
whichever is the later; and
(b) in the case of an action
based on the failure of any person to comply with an order of the Tribunal or
another court, after two years from
(i) a day on which the order of
the Tribunal or court was contravened, or
(ii) the day on which any
criminal proceedings relating thereto were finally disposed of,
whichever is the later.
|
La BPCPA
3. Sauf dans la mesure où elle
est expressément permise par la présente loi, la renonciation aux droits,
avantages ou protections qui y sont prévus est nulle.
…
171. (1) Sous réserve
du paragraphe (2), la personne, autre qu’une personne visée aux alinéas a) à
e), qui a subi un préjudice ou une perte en raison d’une infraction à la
présente loi ou à ses règlements, peut intenter une action contre :
a) le fournisseur,
b) une agence
d’évaluation de crédit, au sens de l’article 106 [définitions],
c) un collecteur, au
sens de l’article 113 [définitions],
d) un huissier, un
agent de recouvrement ou un administrateur de dettes, au sens de l’article
125 [définitions],
e) une personne
tenue de détenir une licence sous le régime de la partie 9 [Licences]
qui a commis l’infraction ayant
causé le préjudice ou la perte ou qui y a acquiescé.
….
172 (1) Le directeur ou
une personne autre qu’un fournisseur — que cette personne ait ou non un intérêt,
particulier ou autre, à faire valoir sous le régime de la présente loi ou
qu’elle soit ou non touchée par l’opération commerciale à l’origine du litige
— peut intenter une action devant la Cour suprême en vue d’obtenir
a) un jugement déclarant
qu’un acte commis par un fournisseur, ou sur le point de l’être, ou une
pratique qu’il utilise, ou est sur le point d’utiliser, en ce qui concerne
une opération commerciale contrevient à la présente loi ou à ses règlements;
b) une injonction
provisoire ou permanente interdisant au fournisseur de contrevenir à la
présente loi ou à ses règlements.
. . .
(3) Si la Cour accueille
l’action sous le régime du paragraphe (1), elle peut ordonner
a) que le
fournisseur restitue à une personne les sommes ou autres biens ou choses, à
l’égard desquels cette personne a un intérêt, et qui peuvent avoir été
obtenus par suite d’une contravention à la présente loi ou à ses règlements;
b) si l’action est
intentée par le directeur, que le fournisseur lui rembourse la totalité ou
une partie raisonnable des frais engagés pour soumettre le fournisseur à une
inspection sous le régime de la présente loi;
c) que le
fournisseur informe le public, de manière efficace et rapide et suivant les
modalités que la cour estime raisonnables, du contenu de tout jugement,
jugement déclaratoire, ordonnance ou injonction prononcé contre le
fournisseur sous le régime du présent article.
La Loi sur la Concurrence
36. (1) Toute personne
qui a subi une perte ou des dommages par suite :
a) soit d’un
comportement allant à l’encontre d’une disposition de la partie VI;
b) soit du défaut
d’une personne d’obtempérer à une ordonnance rendue par le Tribunal ou un
autre tribunal en vertu de la présente loi,
peut, devant tout tribunal compétent,
réclamer et recouvrer de la personne qui a eu un tel comportement ou n’a pas
obtempéré à l’ordonnance une somme égale au montant de la perte ou des
dommages qu’elle est reconnue avoir subis, ainsi que toute somme supplémentaire
que le tribunal peut fixer et qui n’excède pas le coût total, pour elle, de
toute enquête relativement à l’affaire et des procédures engagées en vertu du
présent article.
(2) Dans toute action intentée
contre une personne en vertu du paragraphe (1), les procès-verbaux relatifs
aux procédures engagées devant tout tribunal qui a déclaré cette personne
coupable d’une infraction visée à la partie VI ou l’a déclarée coupable du
défaut d’obtempérer à une ordonnance rendue en vertu de la présente loi par
le Tribunal ou par un autre tribunal, ou qui l’a punie pour ce défaut,
constituent, sauf preuve contraire, la preuve que la personne contre laquelle
l’action est intentée a eu un comportement allant à l’encontre d’une
disposition de la partie VI ou n’a pas obtempéré à une ordonnance rendue en
vertu de la présente loi par le Tribunal ou par un autre tribunal, selon le
cas, et toute preuve fournie lors de ces procédures quant à l’effet de ces
actes ou omissions sur la personne qui intente l’action constitue une preuve
de cet effet dans l’action.
(3) La Cour fédérale a
compétence sur les actions prévues au paragraphe (1).
(4) Les actions visées au
paragraphe (1) se prescrivent :
a) dans le cas de
celles qui sont fondées sur un comportement qui va à l’encontre d’une
disposition de la partie VI, dans les deux ans qui suivent la dernière des
dates suivantes :
(i)
soit la date du comportement en question,
(ii)
soit la date où il est statué de façon définitive sur la poursuite;
b) dans le cas de
celles qui sont fondées sur le défaut d’une personne d’obtempérer à une
ordonnance du Tribunal ou d’un autre tribunal, dans les deux ans qui suivent
la dernière des dates suivantes :
(i) soit la date où
a eu lieu la contravention à l’ordonnance du Tribunal ou de l’autre tribunal,
(ii) soit la date où
il est statué de façon définitive sur la poursuite.
|
[50]
After
referring to his Court’s jurisprudence regarding the availability of commercial
arbitration to settle disputes, namely, Dell, Rogers Wireless, Éditions
Chouette, Bisaillon v. Concordia University, 2006 SCC 19, [2006] 1
S.C.R. 666, and GreCon Dimter Inc. v. J.R. Normand Inc., 2005 SCC 46,
[2005] 2 S.C.R. 401, Binnie J. noted that a number of provincial legislatures
had intervened in the marketplace to place restraints on arbitration clauses in
consumer contracts, i.e., Quebec, Ontario and Alberta. He then set out
the question which the Supreme Court had to determine: whether section 172 of
the BPCPA contained limitations the effect of which would restrict the
enforceability of the arbitration clause. The specific question posed by Binnie
J. was: does section 172 of the BPCPA override the mediation/arbitration
provision in a consumer contract?
[51]
Binnie J.
began by referring to section 3 of the BPCPA, which provides that any
waiver of a person’s rights, benefits or protections under the PBCPA is
void “except to the extent that the waiver or release is expressly permitted by
this Act.” In Binnie J.’s view, the intent of section 3 was to invalidate an
arbitration clause to the extent that it took away a right, benefit or
protection conferred by the BPCPA.
[52]
He then
turned to section 172 of the BPCPA, pursuant to which part of Ms.
Seidel’s claim had been brought. He then commented that contrary to section 171
of that Act, which only allowed the person who suffered damages to claim
thereunder, section 172 allowed, in his view, “virtually anyone” to initiate a
claim under section 172. The fact that claims were not restricted to the person
who actually suffered damages highlighted the public interest nature of the
remedy brought under section 172. At paragraph 32 of his reasons, Binnie J.
wrote:
… Opening the door to private
enforcement in the public interest vastly increases the potential effectiveness
of the Act and thereby promotes adherence to the consumer standards set out
therein. The legislature clearly intended the Supreme Court to be able to
enjoin a supplier guilty of infractions of the BPCPA from practicing the
offending conduct against any consumer (orders which only courts can issue),
rather than just in relation to a particular complainant (as in a “private”
and “confidential” arbitration created by private contract).
[Emphasis
added]
[53]
He then
opined that the internal structure of section 172 demonstrated that the
provincial legislature was cognizant of the fact that declarations and
injunctions, in a consumer context, were the preferred remedies to protect the
interests of the broader public and consumers, to deter unlawful supplier
conduct, and that damages were in many cases of lesser importance, in view of
the small amounts of money at issue.
[54]
Binnie J.
then turned to the statutory context and said that section 172 stood out as a
public interest remedy, in that the remedy was available regardless of whether
or not the “plaintiff” was affected by a consumer transaction. He compared
section 172 to section 171, where the “plaintiff” had to be someone who had
suffered a damage or loss. In his view, that difference was not accidental
because section 171 confers a private cause of action only, whereas section 172
“treats the plaintiff as a public interest plaintiff intended to shine a
spotlight on allegations of shabby corporate conduct, and the legislative
intent thereby manifested should be respected by the court” (Seidel,
paragraph 36).
[55]
After stating
that because the BPCPA was all about consumer protection and that,
consequently, it should receive an interpretation generous to consumers, Binnie
J. remarked that arbitration would not properly serve the policy objectives of
section 172. He put it in the following terms at paragraph 37:
… 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.
[56]
Binnie J.
went further. In his view, the arguments usually put forward to justify and
support arbitration were incompatible with the objectives sought by the
legislature under section 172. In other words, the objectives of private
arbitration, i.e., confidentiality, lack of precedential value, and the
avoidance of publicity, had the effect of undermining the effectiveness of the
remedy set out at section 172.
[57]
Binnie J.
also indicated that his proposed disposition of the case did not conflict with
the Court’s decisions in Dell or Rogers Wireless. In his view,
there was nothing in the Quebec legislation at issue in those cases that
resembled or was similar to section 172 of the BPCPA which directed
“specific statutory claims to a specific forum” (Seidel, paragraph 41).
He then reiterated the principle enunciated in Dell, Rogers Wireless
and Éditions Chouette that arbitration clauses were to be enforced unless
there was language in the statute at issue which militated against their
enforcement.
[58]
Binnie J.
then turned to the question of whether Ms. Seidel’s claim under 172 of the BPCPA
could proceed as a class action, noting that the arbitration clause provided
that the parties thereto agreed to waive their right to commence or participate
in any class action against Telus.
[59]
Binnie J.
began by stating that the wording of the arbitration clause made it clear that
it was only by virtue of that agreement that consumers waived their right to
proceed by way of a class action. In his view, if the arbitration clause was
invalid, as indeed it was, by reason of section 3 of the BPCPA, it
necessarily followed that the class action waiver was also invalid. In so
concluding, he pointed to the fact that the title to the arbitration clause was
“Arbitration” and not “Arbitration and Class Action Waiver”. Because of the
language of the clause, there could be no doubt that Ms. Seidel was not barred
from pursuing certification of her section 172 claim as a class action.
[60]
On the
principles stated by Binnie J. in Seidel, I must conclude that the
issues raised by the appellant in his Statement of Claim brought under section
36 of the Competition Act are arbitrable. The Supreme Court has made it
clear that express legislative language in a statute is required before the
courts will refuse to give effect to the terms of an arbitration agreement. In
that regard, the Competition Act does not contain language which would
indicate that Parliament intended that arbitration clauses be restricted or
prohibited. More particularly, there is no language in the Competition Act
that would prohibit class action waivers so as to prevent the determination of
a claim by way of arbitration.
[61]
Although the Supreme
Court held in Seidel that Ms. Seidel’s claim under section 172 of the BPCPA
was not arbitrable, it nonetheless determined that her claim under section 171
could go to arbitration. As I indicated earlier in reviewing Seidel,
Binnie J. contrasted the wording of section 171 with that of section 172, and
found the differences meaningful in that they showed the legislature’s intent
in ensuring that the matters raised pursuant to section 172 be dealt with by
the Supreme Court of British Columbia, and that where necessary, interim or
permanent injunctions be issued against suppliers guilty of infractions under
the BPCPA. In other words, by reason of the different wording of section
172, the legislature’s intent was that matters raised under that section not be
kept private and confidential, which would be the situation if the matter was
dealt with by way of arbitration.
[62]
As the
respondent submits, the private action in damages under section 171 of the BPCPA
and that created under section 36 of the Competition Act are very
similar. It is clear that in deciding as it did with regard to section 172 of
the BPCPA, the Supreme Court not only relied on the wording of the
provision itself, but on the wording of section 3 of the statute, which stated
in clear terms that the rights, benefits or protections given by the Act to
consumers could not be waived or released, unless the waiver or release was
allowed by the Act. On that basis, the Supreme Court held that Ms. Seidel’s
claims under section 172 could proceed in the Supreme Court of British
Columbia, and that Ms. Seidel could pursue her certification proceedings.
[63]
In closing on
Seidel, I make mine the remarks of the Judge where, at paragraph 60 of
his reasons, he states why he cannot accept the appellant’s argument that
section 36 of the Competition Act is akin to section 172 of the BPCPA:
The Court does not accept the
plaintiff’s suggestion that the language and intent of section 36 of the Competition
Act resembles the above-quoted provisions of the BPCPA. For instance,
unlike section 172 of the BPCPA, section 36 makes no provision for
injunctive relief or for third party claims. Likewise, the Competition Act does
not include a provision similar to section 3 of the BPCPA stating that
“Any waiver or release by a person of the person’s rights, benefits or
protections under this Act is void except to the extent that the waiver or
release is expressly permitted by this Act ”. In short, the Court is of the
view that the wording of the Competition Act does not compare to the
wording of the BPCPA, and that it is accordingly not justified to draw
parallels with the Seidel case on this basis.
[64]
In the end,
as I understand the appellant’s arguments, he says that competition law, by its
very nature, should never be the subject of arbitration because arbitration is
not compatible with the public interest objectives found in the Competition
Act. In other words, there is something sacrosanct about competition law
that trumps any arbitration agreement. Similar arguments were made in Dell
and Rogers Wireless in the context of consumer law, which arguments the
Supreme Court rejected.
[65]
In my view,
there is no basis to conclude, as the appellant argues, that claims brought
under section 36 of the Competition Act cannot be determined by arbitration.
As the Supreme Court made clear in Seidel, and as it had done previously
in Dell and in Rogers Wireless, it is only where the statute can
be interpreted or read as excluding or prohibiting arbitration, as in the case
of section 172 of the BPCPA, that the courts will refuse to give effect
to valid arbitration agreements.
[66]
The
appellant’s claim brought under section 36 of the Competition Act is a
private claim and, in my respectful view, must be sent to arbitration as the
parties intended when they entered into the Arbitration Agreement.
Disposition
[67]
For these
reasons, I would dismiss the appeal with costs.
“M. Nadon”
“I
agree.
Johanne
Gauthier J.A.”
“I
agree.
Johanne
Trudel J.A.”
Email this Content