Law Times

Page 8 August 20, 2018 • LAw times www.lawtimesnews.com Telus class action case heads to the SCC BY SHANNON KARI For Law Times T he application of a key provision in the pro- vincial Arbitration Act when there are class actions involving two different types of potential claimants will be before the Supreme Court of Canada this fall. Leave was granted to Telus from an Ontario Court of Ap- peal decision last year that de- clined to issue a partial stay re- lated to business customers in a $520-million class action filed over the rounding up of wireless calls to the next minute for bill- ing purposes, allegedly without disclosing the practice. The appeal in Wellman v. Telus Communications Com- pany, which has attracted a number of consumer and busi- ness organizations seeking leave to intervene, will also likely ex- amine whether a Court of Ap- peal decision in 2010 on similar issues is still good law. Class actions that feature both consumers and business customers as part of the group of claimants is not uncommon, says Chantelle Cseh, a partner at Davies Ward Phillips & Vine- berg LLP in Toronto, who nor- mally acts for clients on the de- fence side of these proceedings. "This arises frequently. We have decisions from a number of jurisdictions. This is an oppor- tunity for the Supreme Court to clarify rules that will be of gen- eral application," says Cseh. The provincial Consumer Protection Act states that, in the case of consumers, any user agreements that call for arbitra- tion are invalid in terms of re- stricting the right to be part of a legal action. For the Court of Ap- peal, in its decision last year, the main issue was whether business customers of Telus should be ex- cluded because those contracts included a mandatory arbitra- tion clause. Section 7(5) of the Arbitration Act permits a court to stay certain "matters" within an arbitration agreement. In the Telus litigation, about 70 per cent of the proposed class is made up of consumers and 30 per cent are customers who pur- chased business plans. The wording of the arbitra- tion statute does not grant au- thority to override the arbitra- tion provisions in its entirety, argue lawyers for Telus in writ- ten submissions filed with the Supreme Court. The communi- cations company is also arguing that the Court of Appeal erred in distinguishing the Supreme Court's 2011 decision in Seidel v. Telus, a case that originated in British Columbia and related to its provincial consumer protec- tion legislation. The Court of Appeal con- cluded that the law in Ontario in this area is still determined by Griffin v. Dell, a 2010 deci- sion by a five-judge panel that declined to stay non-consumer claims in a class action over al- legedly defective notebook com- puters. "Seidel has not overtaken or altered the authority of Griffin, as Griffin is consistent in princi- ple with Seidel but was decided in a different legislative context," wrote Justice Katherine van Rensburg for the majority in the Wellman decision. Justice Robert Blair, in a sepa- rate judgment, agreed with the majority that Griffin has not been overruled in Ontario and that, as a result, the class action can include business customers. However, he also expressed res- ervations about the earlier deci- sion. "While I have reservations about the correctness of the de- cision in Griffin as it relates to a partial stay of the non-consumer claims, it is binding on us and dispositive of the issue," wrote Blair. Cseh agrees with the reserva- tions expressed by Blair. "I think Griffin was incor- rectly decided," she says. Telus, she believes, also has a strong case in its appeal to the Supreme Court. "Just because you have initi- ated a class action, should that oust substantive rights?" she asks. Business customers can still pursue claims against a company through an arbitration process, Cseh suggests. "It does not mean you are out of luck. It can be done very effi- ciently," she says. Jeremy Martin, a lawyer at Cassels Brock & Blackwell LLP in Toronto, suggests that if the Court of Appeal decision is up- held, it would expand the ability to bring a class action beyond what was originally intended. "Class actions tend to be pro- cedural only. They are to ad- vance claims that could not oth- erwise be brought," says Martin, whose practice focuses on class action defence. The relevant section of the Arbitration Act permits a court "to separate issues" within an agreement and not the entire agreement itself, he says. "The question of whether you can get business claims through the back door is about inf lating the total damages," says Martin. Mohsen Seddigh, a lawyer at Sotos LLP, is acting for the Pub- lic Interest Advocacy Centre and the Consumers Council of Can- ada, two of the groups seeking to be granted intervener status at the Supreme Court. Telus is proposing "a different statutory interpretation" of the relevant section of the Arbitra- tion Act than what the courts in Ontario have found, says Sed- digh. As well, he suggests that at a time when the nature of the workforce is changing, there is not always an obvious difference between a consumer or business customer. "Is an Uber driver a business customer? It is not always clear cut," says Seddigh, noting that people may use wireless devices both for personal and business purposes. The advocacy groups are hoping that when hearing the appeal, the Supreme Court "will take it out of an academic context, run an analysis and see if consumers are going to be im- pacted," he says. LT Chantelle Cseh says class actions that feature both consumers and business customers as part of the group of claimants is not uncommon. FOCUS FOCUS ON Litigation What's your biggest management challenge? Growth? Recruiting? Legal costs? Weigh in on these issues and more in our annual corporate counsel survey. Survey is open August 8 – September 10 canadianlawyermag.com/surveys ATTENTION IN-HOUSE COUNSEL! T H E A N N U A L Presented by CORPORATE COUNSEL S U R V E Y Untitled-3 1 2018-08-02 3:27 PM

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