Law Times

Law times • OctOber 6/13, 2008 FOCUS PAGE 11 Two cases may make their way to top court BY JULIUS MELNITZER For Law Times M Rogers consommateurs and Rogers Wireless Inc. v. Muroff as a brake on plain- tiffs' efforts to get class actions into court by way of challenges to mandatory arbitration clauses. But decisions by motions judges any observers saw the sister cases of Dell Com- puter Corp. v. Union des in Ontario and Brit- ish Columbia have gone a long way to limit impact of the Supreme Court rul- ings to the civil law province of Que- bec. have legislation that limits pre- dispute waivers of class actions in consumer cases. Alberta al- lows waivers where regulators have pre-approved an arbitra- tion clause to which consumers subsequently agree. What Dell and Rogers added to the mix was the clear suggestion that legislation is not necessary for a waiver to be effective: a properly drafted arbitration clause will do. This is especially significant be- cause most legislation targets con- sumer contracts, leaving the ques- tion of waiver to the common or civil law in other instances. At the time they were released, the high court decisions were wide- ly hailed by business, which saw plaintiff consumers who filed a class ac- tion in the Quebec Superior Court. Both Dell and Rog- ers defended on the basis that the con- sumers had agreed to arbitrate. The top court refused to allow either case to proceed in the courts, holding the consumers to their contracts by referring the matters to arbitration. Justice Marie Deschamps, writ- ing for the majority, laid down a "general rule" that challenges to arbitrators' jurisdiction must be re- solved first by the arbitrator, unless the challenge is a pure question of law. Even when a pure question of law is involved, however, the court has discretion to refer the matter to arbitration if it would be "best for the arbitration process." Quebec and Ontario now Both Dell and involved Barry Glaspell says that business must reconsider its standard form con- tracts as they relate to arbitration clauses. Justice Paul Perell in Smith v. Na- tional Money Mart Co. and B.C. Supreme Court Justice Brenda Brown in Mackinnon v. National Money Mart Co. concluded Dell and Rogers turned on the specific provisions of Quebec legislation and did not change the law relating to arbitration clauses in common law jurisdictions. "What I see are two quite detailed, reasoned and fairly consistent reasons from the B.C. and Ontario courts which conclude that the Supreme Court rulings do not apply in provinces which have different leg- islative provisions," says Barry Glaspell of Borden Ladner Gervais LLP's To- ronto office. "And there is this harmo- ny in the common law decisions de- them as boosting resort to arbitra- tion to manage class action risk. But Ontario Superior Court significance to the issue, having decided to sit a five-judge panel when the appeal is heard in mid- October. The B.C. appeal is scheduled for a January hearing. Meanwhile, Glaspell says that business must reconsider its stan- dard form contracts as they relate to arbitration clauses. While courts are dubious of arbitration clauses, they have not said they are illegal or unlawful except where specifically prohibited by legislation. "But every standard form con- tract in the common law jurisdic- tions in this country needs to be re- considered in light of Money Mart and other decisions," he says. He suggests arbitration clauses be drawn in a way that facilitates the argument the contractual pro- cess is a "preferable procedure" to a class action for resolving com- plaints in a particular case. Trust [ same way. "[In Dell and Rogers] the Supreme Court interpreted Que- bec legislation, but how legislation in other provinces should be inter- preted remains an open issue, and there is certainly no common law non-statutory principle that con- tracting parties can oust the court's subject matter jurisdiction simply by entering into an agreement to arbitrate," he wrote. "It is a matter of statute law what influence an arbitration agreement may have on a court's jurisdiction." But the issue is still live. "We're on our way to the Rogers were of little assistance to her "because they do not turn on the proper interpretation of the provisions of the British Colum- bia Class Proceedings Act and the Commercial Arbitration Act." Perell saw things much the spite the fact that their own laws are slightly different from each other." According to Brown, Dell and Aleks Mladenovic | "One way of doing this is to set up a complaints process even prior to arbitration which gives the company a specific period of time to remedy the problem," he says. "If the company can develop a record demonstrating that the contractual process has indeed fixed problems, it could make a significant impact on the preferable procedure analysis undertaken by a court." LT Every time you refer a client to our firm, you're putting your reputation on the line. It's all about trust well placed. Richard Halpern | Sloan Mandel For over 70 years Thomson, Rogers has built a strong, trusting, and collegial relationship with hundreds of lawyers across the province. As a law firm specializing in civil litigation, we have a record of accomplishment second to none. With a group of 30 litigators and a support staff of over 100 people, we have the resources to achieve the best possible result for your client. Moreover, we are exceptionally fair when it comes to referral fees. Court of Appeal in both Ontar- io and B.C.," says Paul Morri- son of McCarthy Tétrault, who represented Money Mart in both provinces. "And the issues are important enough that the cases may ultimately make their way to the Supreme Court." Certainly the Ontario Court of Appeal attaches considerable Untitled-4 1 We welcome the chance to speak or meet with you about any potential referral. We look forward to creating a solid relationship with you that will benefit the clients we serve. THOMSON, ROGERS Barristers and Solicitors 416-868-3100 Toll free 1-888-223-0448 www.thomsonrogers.com YOUR ADVANTAGE, in and out of the courtroom 8/18/08 10:21:02 AM WHAT CAN YOUR ONLINE RESEARCH SERVICE DO FOR YOU? CAN YOU SEARCH EVERY CASE IN CANADA SINCE 1803? REPORTED AND UNREPORTED? TOPICALLY BY LEGAL ISSUE? www.westlawecarswell.com/youcan Request a demo for a chance to win $2,500 in AMEX gift certificates Untitled-3 1 www.lawtimesnews.com YOU CAN. Only The Canadian Abridgment, available on WestlaweCARSWELL, gives you a truly comprehensive classification of Canadian law. You get instant access to a collection of more than 690,000 case digests. With WestlaweCARSWELL, AUTHORITATIVE. INNOVATIVE. TRUSTED. 9/30/08 9:47:28 AM

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