



COURT OF APPEAL FOR ONTARIO

CITATION: Wellman v. TELUS Communications Company, 2017 ONCA
    433
DATE: 20150531
DOCKET: C59812

Weiler, Blair and van Rensburg JJ.A.

BETWEEN

Avraham Wellman

Plaintiff (Respondent)

and

TELUS
    Communications Company, Tele-Mobile Company

and TELUS Communications
    Inc.

Defendants (Appellants)

Gerald L.R. Ranking and Andrew Borrell, for the
    appellants

Joel P. Rochon, Peter Jervis, Lisa Fenech and Eliezer
    Karp, for the respondent

Heard: September 21, 2016

On appeal from the order of Justice Barbara A. Conway of
    the Superior Court of Justice, dated November 25, 2014, with reasons reported
    at 2014 ONSC 3318, 63 C.P.C. (7th) 50.

van Rensburg J.A.:

A.

OVERVIEW

[1]

This is an appeal from an order denying a partial stay of proceedings in
    favour of arbitration, in the context of a class proceeding.

[2]

The action involves claims by consumer and business customers against
    TELUS Communications Company, Tele-Mobile Company, and TELUS Communications
    Inc. (together, TELUS Mobility). The representative plaintiff claims that
    TELUS Mobility, during the class period, overcharged customers by rounding up
    calls to the next minute without disclosing this practice.

[3]

TELUS Mobilitys contracts contained standard terms and conditions,
    including a mandatory arbitration clause. TELUS Mobility concedes that the
    effect of s. 7(2) of the
Consumer Protection Act, 2002
, S.O. 2002, c.
    30, Sched. A (the 
Consumer Protection Act
), is that claims in
    respect of consumer contracts can proceed in court.  It submits, however, that
    the non-consumer claims  that is, the claims of business customers  are
    governed by the mandatory arbitration clause and ought to have been stayed.

[4]

The only issue on appeal is 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 (the 
Arbitration Act
). Section 7(5)
    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. All relevant statutory provisions
    are set out in Appendix A to these reasons.

[5]

The motions judge relied on the authority of this courts decision in
Griffin
    v. Dell Canada Inc.
, 2010 ONCA 29, 98 O.R. (3d) 481, leave to appeal
    refused, [2010] S.C.C.A. No. 75, in deciding not to grant a partial stay
    pursuant to s. 7(5) of the
Arbitration Act
. The appellants assert that
    the analysis by this court in
Griffin
has been superceded or modified (I
    use the term overtaken) by the decision of the Supreme Court of Canada in
Seidel
    v. TELUS Communications Inc.
, 2011 SCC 15, [2011] 1 S.C.R. 531, and that,
    applying the reasoning in
Seidel
, a partial stay ought to have been
    granted.  The motions judges interpretation of the
Arbitration Act
in
    light of
Griffin
and
Seidel
is therefore at issue in this
    appeal.

[6]

Griffin
involved a proposed class action on behalf of
    purchasers of Dell computers. Dells standard form agreement contained a
    mandatory arbitration clause. The motion judge refused Dells request to stay
    the class action in favour of arbitration and granted conditional
    certification. A five-judge panel of this court concluded that the
Consumer
    Protection Act
applied to exclude the application of Dells arbitration
    clause to all consumer claims after a specified date. The panel also refused to
    grant a partial stay of the non-consumer claims on the basis of s. 7(5) of the
Arbitration
    Act
, concluding that it was not
    reasonable to separate the matters dealt with in the agreement from the other
    matters in the action
.

[7]

Seidel
concerned a dispute arising out of a cell phone contract
    between TELUS Communications Inc. and one of its customers who sought to bring
    a class action. The contract contained a mandatory arbitration clause. A
    majority of the Supreme Court concluded that, based on the combined effect of
    s. 3 and s. 172 of the

Business Practices and Consumer Protection Act
,
    S.B.C. 2004, c. 2 (
BPCPA
), Ms. Seidels claims under s. 172 could
    proceed in court despite the arbitration clause and that the stay imposed by
    the court below would be lifted in respect of those claims, and remain in place
    for the other claims in the action, which, pursuant to the parties agreement,
    were required to be arbitrated.

[8]

For the reasons that follow I conclude that the motions judge was
    correct in applying
Griffin
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. While both
Griffin
and
Seidel
involved arbitration
    clauses in the context of a proposed class proceeding,
Seidel
was
    decided under the relevant laws of British Columbia (B.C.), which differ in
    material ways from those of Ontario.
Seidel
emphasizes that, in
    determining whether a court action can proceed in the face of an agreement to
    arbitrate, it is essential to consider the legislation that applies in the
    relevant jurisdiction.
Griffin
remains good law in respect of
    proceedings commenced in Ontario, and has not been overtaken by
Seidel
.
    As such, I would not interfere with the motions judges refusal to stay the
    claims of business customers and hence her inclusion of such customers in the
    certified class. I would therefore dismiss the appeal.

B.

BACKGROUND

(1)

Nature of the Class Action

[9]

The respondent is the representative plaintiff in a class proceeding
    against TELUS Mobility concerning allegations that the mobile service provider
    engaged in an undisclosed billing practice of rounding up calls to the next
    minute. The class consists of some two million subscribers. Seventy percent are
    consumers who purchased TELUS Mobility plans for personal use, and thirty percent
    are non-consumers who purchased plans for business use.

[10]

Mobile services were introduced in Canada in 1985. Until the mid-1990s,
    the major telecommunications companies in Canada billed for voice services on a
    per-minute basis. In 1996 (with the introduction of digital cell networks),
    service providers started billing on a per-second basis. In the summer of 2002,
    TELUS Mobility and others returned to per-minute billing for all new cell phone
    plans.

[11]

The monthly plans offered during the proposed class period included a
    fixed number of minutes for a set fee, with additional charges for excess
    minutes. Usage was calculated by rounding up customer calls to the next minute
     so, for example, a one-minute, two-second call was rounded up to two minutes.

[12]

The representative plaintiff alleges that during the class period,
    between 2002 and 2010, TELUS Mobilitys standard terms and conditions made no
    mention of rounding up. In July 2010, TELUS Mobility amended its standard terms
    and conditions to provide: The airtime for each voice call is rounded up to
    the nearest minute, unless your rate plan states otherwise. The distribution
    of this notice marked the end of the class period.

[13]

Three causes of action are asserted: breach of contract, breach of the
Consumer
    Protection Act
, and unjust enrichment. The action claims $500 million in
    damages and $20 million in punitive damages on behalf of the class.

[14]

All TELUS Mobility contracts during the material time contained standard
    terms and conditions, including a clause requiring mediation and, failing
    resolution, arbitration of any disputes other than in respect of the collection
    of accounts by TELUS Mobility (the Arbitration Agreement).

(2)

Decision of the Motions Judge

[15]

There were two motions before the motions judge: a motion to certify a
    class proceeding under s. 5 of the
Class Proceedings Act, 1992
, S.O.
    1992, c. 6 (the 
Class Proceedings Act
), and a motion by the
    appellants to stay the proceeding with respect to the claims of the
    non-consumer or business customers.

[16]

The motions judge certified the class to include both consumers and
    non-consumers. In refusing to stay the claims of non-consumers, she applied s.
    7(5) of the
Arbitration Act
and the decision of this court in
Griffin
,
    which she concluded had not been overtaken by the Supreme Court of Canadas
    decision in
Seidel
. She dealt with the issue raised in this appeal at
    paras. 82 to 91 of her decision. At paras. 88-89 she stated:

I cannot agree with TELUS submission that
Griffin
was
    overruled by
Seidel
. In
Seidel
, the Supreme Court of Canada
    addressed only the issue of whether s. 172 of the
BPCPA
constituted a
    legislative override of the arbitration clause. There was no equivalent of s.
    7(5) of the
Arbitration Act, 1991
before the court. There was no issue
    of whether that statutory provision permits the court to allow claims to be
    litigated in a class action, notwithstanding the existence of an arbitration
    clause. The court was not called upon to analyze that issue.

In Ontario, s. 7(5) of the
Arbitration Act, 1991
expressly grants the court the discretion to determine whether it is reasonable
    to separate the matters dealt with in an arbitration agreement from the other
    matters in the litigation. If the court does not consider it reasonable to
    separate them and refuses the partial stay, all matters may proceed in the
    litigation, regardless of the arbitration clause. Pursuant to
Griffin
,
    this discretion may be exercised to allow non-consumer claims (that are
    otherwise subject to an arbitration clause) to participate in a class action,
    where it is reasonable to do so.

[17]

The motions judge concluded that the consumer claims represented 70
    percent of the total number of claims, that the liability and damages issues
    for both consumer and non-consumers would be the same, that there was no group
    arbitration permitted for the non-consumer claims, and that separating the two
    proceedings could lead to inefficiency, risk inconsistent results and create a
    multiplicity of proceedings (at para. 90). As a result, she determined that it
    would be unreasonable to separate the consumer and non-consumer claims, and
    therefore she declined to stay the non-consumer claims.

[18]

The Divisional Court dismissed a motion for leave to appeal the
    certification order:
sub nom
,
Corless v. Bell Mobility Inc.
,
    2015 ONSC 7682, [2015] O.J. No. 6661.

C.

ISSUE ON APPEAL

[19]

The appellants sought and were denied leave to have this appeal heard by
    a five-judge panel to reconsider this courts decision in
Griffin
.

[20]

The issue on appeal is therefore restricted to whether the analysis in
Griffin
has been overtaken by the analysis mandated by
Seidel
. In particular,
    did the motions judge err in failing to apply
Seidel
, and err in
    deciding that, pursuant to
Griffin
, she retained the discretion to
    refuse a stay of the claims governed by the Arbitration Agreement? The
    appellants do not argue with how the discretion was exercised by the motions
    judge in the event this court finds that
Griffin
applies.

D.

ANALYSIS

[21]

In light of the significance of
Griffin
and
Seidel
to
    the resolution of this appeal, I will review these decisions, and the history
    leading up to them, in some detail before examining the parties submissions
    and analyzing each of them in turn.

(1)

Legal Context

(a)

Cases Preceding
Griffin
and
Seidel


[22]

The relationship between arbitration clauses and class actions has been
    the subject of numerous legal proceedings. A review of cases leading up to
Griffin
and
Seidel
provides context for understanding what was at issue and
    what was decided in those cases.

[23]

In 2004, a five-judge panel of the B.C. Court of Appeal addressed the
    issue of whether an arbitration clause in a contract was
    "inoperative" under the
Commercial Arbitration Act
, R.S.B.C.
    1996, c. 55 (the 
Commercial Arbitration Act
)
[1]
where an action challenging
    the contract was brought as an intended class proceeding:
MacKinnon v. National
    Money Mart Co.
, 2004 BCCA 473, 203 B.C.A.C. 103 (C.A.) (
MacKinnon
    BCCA 2004
). A year later, this court dealt with a similar case where the
    defendant sought a stay of a proposed class action based on an arbitration
    clause:
Smith v. National Money Mart Co.
(2005), 258 D.L.R. (4th) 453 (C.A.),
    leave to appeal refused, [2005] S.C.C.A. No. 528 (
Smith ONCA 2005
).

[24]

Under both Ontario and B.C. statutes governing class proceedings, the
    court must certify a class proceeding if all the statutory criteria are met,
    including that the class proceeding would be the preferable procedure for the
    resolution of the common issues:
Class Proceedings Act
, s. 5;
Class
    Proceedings Act
, R.S.B.C. 1996, c. 50, s. 4. Both courts in
MacKinnon
    BCCA 2004
and
Smith ONCA 2005
held
that whether a stay should be granted in favour of arbitration is
    determined as part of the preferable procedure analysis on a motion for
    certification. The courts reasoned that, if a class proceeding is considered
    the preferable procedure for resolving the dispute and the action is certified
    as a class action, the arbitration agreement falls within an exception to the
    stay mandated by the domestic arbitration statutes of Ontario and B.C. and is
    rendered invalid in Ontario and inoperative in B.C.:
Arbitration Act
,
    s. 7(2);
Commercial Arbitration Act
, s. 15.

[25]

Two years later, the Supreme Court decided two cases from Québec:
Dell
    Computer Corp. v. Union des consommateurs
, 2007 SCC 34, [2007] 2 S.C.R.
    801 (
Dell
), and
Rogers Wireless Inc. v. Muroff
, 2007 SCC
    35, [2007] 2 S.C.R. 921 (
Rogers Wireless
). They dealt with the
    relationship between arbitration clauses and class actions under the
Civil
    Code of Québec
,
S.Q. 1991,
    c. 64 and the
Code of Civil Procedure
,

R.S.Q. c. C-25.
[2]
The Supreme Court rejected attempts by consumers to pursue class actions in
    Québec in the face of arbitration clauses. Among other things, the Supreme
    Court emphasized that arbitration clauses confer substantive rights that are
    not affected by the procedural right to bring a claim by way of a class
    proceeding, and that a challenge to the arbitrators jurisdiction or to the
    validity or applicability of the arbitration agreement should be resolved by
    the arbitrator, except where the challenge is based solely on a question of law.

[26]

After
Dell
and
Rogers Wireless
, renewed motions for a
    stay were brought in the
Smith
and
MacKinnon
cases:
Smith
    Estate v. National Money Mart Co.
(2008), 57 C.P.C. (6th) 99 (S.C.) (
Smith
    Estate ONSC 2008
);
MacKinnon v. National Money Mart Company
,
    2008 BCSC 710, 293

D.L.R. (4th) 478 (
MacKinnon BCSC 2008
).
    Both courts dismissed the motions, concluding that
Dell
and
Rogers
    Wireless
had limited application in Ontario and B.C. because the Supreme
    Court had dealt with Québec legislation and did not purport to interpret the
    legislation of other provinces. The courts also concluded that issue estoppel
    applied.

[27]

A five-judge panel of this court dismissed an appeal from
Smith
    Estate ONSC 2008
on the basis of issue estoppel and this court found it
    unnecessary to decide whether
Dell
and
Rogers Wireless
changed the law in Ontario:
S
mith Estate v. National Money Mart Co.
,
    2008 ONCA 746, 92 O.R. (3d) 641, leave to appeal refused, [2008] S.C.C.A. No.
    535 (
Smith Estate ONCA 2008
).

[28]

As will be discussed below, a five-judge panel of the B.C. Court of
    Appeal also dismissed the appeal of
MacKinnon BCSC 2008
on the basis
    of issue estoppel, although the court concluded that
Dell
and
Rogers
    Wireless
changed the law in B.C. and effectively overruled its earlier
    decision in
MacKinnon BCCA 2004
:
MacKinnon v. National Money Mart
    Co.
, 2009 BCCA 103, 304 D.L.R. (4th) 331 (
MacKinnon BCCA 2009
).
    This case was heard alongside the companion case of
Seidel v. TELUS
    Communications Inc.
, 2009 BCCA 104, 267 B.C.A.C. 266.

(b)

Griffin v. Dell Canada Inc.

(i)

Griffin
at First Instance

[29]

Griffin
was an appeal of two orders of Lax J., who was case
    managing a proposed class proceeding that arose from the sale of allegedly
    defective Dell notebook computers. The first order dismissed Dells motion for
    a stay of proceedings based on the mandatory arbitration clause in Dells
    standard contract, and certified the action as a class proceeding: (2009), 72
    C.P.C. (6th) 158 (S.C.). The second order dismissed a motion brought by Dell
    for reconsideration of that decision: (2009), 76 C.P.C. (6th) 173 (S.C.), affd
    2010 ONCA 29, 98 O.R. (3d) 481.

[30]

Lax J. dismissed a motion for a stay of proceedings, following the
    approach in
Smith ONCA 2005
and
MacKinnon BCCA 2004
.  She
    rejected the argument that the landscape in Ontario had been altered by
Dell
and
Rogers Wireless
.

[31]

Lax J. cited with approval
Smith Estate ONSC 2008
and
MacKinnon
    BCSC 2008
.  She concluded that since
Dell
and
Rogers Wireless
were decided on the basis of Québec law, the decisions did not apply to
    Ontario, and the appropriate course of action was to consider the validity of
    the arbitration clause in the context of the preferability analysis on the
    certification motion.

[32]

Finally, Lax J. held that it was unnecessary to determine whether ss. 7
    and 8 of the
Consumer Protection Act
applied to the claims in the
    proposed proceeding, where some purchasers had acquired their computers before the
    Act came into force on July 30, 2005. These sections preclude the mandatory
    application of arbitration clauses to consumer contracts and permit class
    proceedings notwithstanding any contractual provisions to the contrary.

[33]

A motion for reconsideration was brought after a five-judge panel of the
    B.C. Court of Appeal released its companion decisions in
MacKinnon BCCA
    2009
and
Seidel v. TELUS Communications Inc.
, 2009 BCCA 104, 267
    B.C.A.C. 266, where the B.C. Court of Appeal concluded that
Dell
and
Rogers
    Wireless
changed the law in B.C. and
    effectively overruled earlier appellate authority on the relationship between
    arbitration and class actions
.

[34]

Lax J. dismissed the reconsideration motion after carefully considering
    the reasoning in the B.C. Court of Appeal cases and explaining why she
    preferred the analysis of Perell J. in
Smith Estate ONSC 2008
, which
    contrasted the legislation in Ontario with that in Québec. She maintained that
Dell
and
Rogers Wireless

do not apply in Ontario and that in this
    province whether or not to stay a class proceeding is to be determined within
    the context of the preferable procedure analysis in a certification motion.

(ii)

Griffin
in the Court of Appeal

[35]

A five-judge panel of this court heard the appeal in
Griffin

because the appellant was challenging the continued authority of
Smith
    ONCA 2005
in light of
Dell
and
Rogers Wireless
, and in
    particular this courts holding that the legality of an arbitration provision
    should be determined at the certification hearing and that it is premature to
    attempt to stay the action beforehand. However, this court did not decide this
    issue in
Griffin
, nor has the issue been decided in Ontario at the
    appellate level since that time.

[36]

Rather, the appeal was determined based on the exercise of the courts
    discretion under s. 7(5) of the
Arbitration Act
in the context of an
    action in which both consumer claims and non-consumer claims were asserted.
    Section 7(5) of the
Arbitration Act
provides as follows:

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.

[37]

Sharpe J.A., writing for a unanimous court, noted that, in the
    certification decision, a second representative plaintiff who was a consumer
    had been added and that s. 7 of the
Consumer Protection Act
was
    therefore engaged. Section 7 provides as follows:

7(1) The substantive and procedural rights given under this Act
    apply despite any agreement or waiver to the contrary.

(2) Without limiting the generality of subsection (1), any term
    or acknowledgment in a consumer agreement or a related agreement that requires
    or has the effect of requiring that disputes arising out of the consumer
    agreement be submitted to arbitration is invalid insofar as it prevents a
    consumer from exercising a right to commence an action in the Superior Court of
    Justice given under this Act.

(3) Despite subsections (1) and (2), after a dispute over which
    a consumer may commence an action in the Superior Court of Justice arises, the
    consumer, the supplier and any other person involved in the dispute may agree
    to resolve the dispute using any procedure that is available in law.

(4) A settlement or decision that results from the procedure
    agreed to under subsection (3) is as binding on the parties as such a
    settlement or decision would be if it were reached in respect of a dispute
    concerning an agreement to which this Act does not apply.

(5) Subsection 7 (1) of the
Arbitration Act, 1991
does
    not apply in respect of any proceeding to which subsection (2) applies unless,
    after the dispute arises, the consumer agrees to submit the dispute to
    arbitration.

[38]

Sharpe J.A. concluded that s. 7 applied to the consumer claims because
    the alleged breaches occurred after July 30, 2005 when the
Consumer
    Protection Act
came into force. The result was that the arbitration clause
    would be invalid to prevent a court action in respect of consumer claims and
    therefore all consumer claims would proceed to litigation despite the existence
    of an arbitration agreement.

[39]

Sharpe J.A. then turned to the question of whether a partial stay of the
    non-consumer claims should be granted. He noted that s. 7(5) of the
Arbitration
    Act
confers a discretion to grant a partial stay where an action involves
    some claims that are subject to arbitration and some that are not, and where it
    is reasonable to separate the matters dealt with in the agreement from the
    other matters. He applied the reasoning from a line of cases where claims by or
    against multiple parties were asserted, only some of which were subject to
    arbitration and a partial stay of proceedings had been refused:
Radewych v.
    Brookfield Homes (Ontario) Ltd.
, [2007] O.J. No. 2483 (S.C.), affd 2007
    ONCA 721, [2007] O.J. No. 4012,
Johnston v. Mlakar
(2006), 212 O.A.C.
    79 (C.A.),
Frambordeaux Developments Inc. v. Romandale Farms Ltd
.,
    [2007] O.J. No. 4917 (S.C.), and
New Era Nutrition Inc. v. Balance Bar Co.
,
    2004 ABCA 280, 357 A.R. 184 (involving a provision in Albertas domestic
    arbitration statute identical to s. 7(5) of Ontarios
Arbitration Act
). Sharpe
    J.A. concluded that it would not be reasonable to separate the consumer claims
    from the non-consumer claims, as this would result in added cost and delay, as
    well as a multiplicity of proceedings.

[40]

Sharpe J.A. also noted, at para. 52, that the motion judges finding
    that claims could not be efficiently litigated through the arbitration process
    was another factor supporting the conclusion that it would not be reasonable
    to grant a partial stay. He observed that there was considerable evidence in
    the record to support this finding, and no evidence from Dell to indicate that
    the arbitration of [the] claims would be anything other than cost-prohibitive
    (at para. 56). He noted that it was clear beyond any serious doubt on this
    record that staying any claims advanced in the action [would] not result in any
    of the stayed claims being arbitrated, and that the real choice was between
    clothing Dell with immunity from liability for defective goods sold to
    non-consumers and giving those purchasers the same day in court afforded to
    consumers by way of the class proceeding (at para. 57).

[41]

Finally, Sharpe J.A. concluded that it was unnecessary to decide whether
Dell
and
Rogers Wireless
applied in Ontario and had overruled
Smith ONCA 2005
. He stated, at para. 64:

As I have concluded that the [
Consumer Protection Act
]
    applies to the claim of the representative plaintiff Andrews and that a partial
    stay of the claim of the representative plaintiff Griffin should be refused, it
    is not necessary for me to decide whether, apart from the [
Consumer
    Protection Act
],
Dell
would have applied in Ontario To the
    extent that the application of
Dell
does remain a live issue, we are
    likely to receive further guidance from the Supreme Court of Canada when it
    decides the appeal in [
Seidel
].

[42]

Accordingly, in
Griffin
, it was unnecessary for this court to
    revisit earlier decisions that dealt with the issue of whether a certification
    motion was the proper context to determine whether a claim should be stayed in
    favour of arbitration. This was unnecessary because of the Ontario legislation:
    the combined effect of the recently enacted provisions of the
Consumer
    Protection Act
, which provided that mandatory arbitration did not apply to
    consumer claims, and the discretion of the court to grant a partial stay of
    proceedings where the action involves some claims that are subject to
    arbitration and some claims that are not under s. 7(5) of the
Arbitration
    Act
.

[43]

The Supreme Court refused leave to appeal this courts decision in
Griffin
:
    [2010] S.C.C.A. No. 75.

(c)

Seidel v. TELUS Communications Inc.

[44]

Meanwhile, in
Seidel
the plaintiff sought to certify a class
    action against TELUS for alleged unfair billing practices (in that case,
    charging customers for the time it took to connect a call). The action included
    claims by consumers and business customers who had signed the same standard
    contract containing a mandatory arbitration clause. Various claims were
    asserted in the action, including some invoking rights, benefits or protections
    under the
BPCPA
. The defendant moved for a stay of proceedings based
    on the arbitration clause. The question was whether the arbitration clause was
    inoperative, which was a ground for refusing to stay court proceedings under
    s. 15 of the B.C.
Commercial Arbitration Act
.

(i)

Seidel
at First Instance

[45]

When the matter came before the B.C. Supreme Court, the underlying issue
    was characterized as whether
Dell
and
Rogers Wireless
had
    overtaken
MacKinnon BCCA 2004
:
Seidel v. Telus Communications Inc.
,
    2008 BCSC 933, 295 D.L.R. (4th) 511. The defendant had applied for a stay on
    the basis that
Dell
and
Rogers Wireless
required that an
    arbitrator determine the applicability of an arbitration clause prior to a
    certification hearing. After a detailed comparison of the statutory context in
    B.C. with that in Québec, and adopting the analysis of Perell J. in
Smith
    Estate ONSC 2008
, the court concluded that
Dell
and
Rogers
    Wireless
had not changed the law in B.C.

(ii)

Seidel
in the B.C. Court of Appeal

[46]

As noted above
,
Seidel
went to a five-judge panel of the
    B.C. Court of Appeal and was argued together with an appeal of
MacKinnon
    BCSC 2008
.

[47]

The court compared the B.C. and Québec arbitrations and class
    proceedings legislation, and concluded that
Dell
and
Rogers
    Wireless
had overruled its earlier decision in
MacKinnon BCCA 2004
.
    In
Seidel
, the court also observed that a class action is a procedural
    vehicle that does not modify the substantive rights created by an arbitration
    clause.

[48]

The court rejected the argument that the arbitration clause was
    inoperative because of s. 3 of the
BPCPA
. Section 3 renders void any
    waiver or release of any rights, benefits or protections under the
BPCPA
,
    including the statutory remedy contained in s. 172 of the
BPCPA
, which
    allows a person other than a supplier to bring an action in the Supreme Court
    to enforce the statutes consumer protection standards. The court concluded
    that ss. 3 and 172 of the
BPCPA
did not exclude arbitral jurisdiction
    and did not render the arbitration agreement between Ms. Seidel and TELUS
    inoperative.

[49]

The court also determined that the action should be stayed in favour of
    an arbitrator determining at first instance which claims would be subject to
    arbitration and which, if any, would not.

(iii)

Seidel
in the Supreme Court of Canada

[50]

The majority opinion (with four judges concurring) was written by Binnie
    J. In contrast to how the matter had been addressed at first instance and in
    the Court of Appeal, he approached the matter largely as a question of
    statutory interpretation. Binnie J. stated, at para. 2:

The choice to restrict or not to restrict arbitration clauses
    in consumer contracts is a matter for the legislature.  Absent legislative
    intervention, the courts will generally give effect to the terms of a
    commercial contract freely entered into, even a contract of adhesion, including
    an arbitration clause.
The important question raised by this appeal,
    however, is whether the
BPCPA
manifests a legislative intent to intervene in the marketplace to relieve
    consumers of their contractual commitment to private and confidential
    mediation/arbitration and, if so, under what circumstances
. [Emphasis
    added.]

[51]

The majority found that an arbitration clause will prevail absent
    legislative intervention and that the provisions of the
BPCPA
demonstrated an intent to intervene to relieve consumers of their arbitration
    agreements. The court concluded that the combined effect of ss. 3 and 172 of
    the
BPCPA
was to allow claims asserted under s. 172 to proceed in
    court despite an arbitration clause. The court came to this conclusion in part
    because the features of private arbitration  confidentiality, lack of
    precedential value and the avoidance of publicity  are incompatible with the legislatures
    objectives and undermine the effectiveness of the remedy set out at s. 172 (at
    para. 38).

[52]

Binnie J. held that, to the extent that Ms. Seidels claims invoked the
    remedies under the
BPCPA
, including declaratory and injunctive relief,
    those claims must be allowed to proceed in the superior court. However, the
    claims that were not covered by the
BPCPA
, including common law
    claims, continued to be governed by the arbitration clause. He stated at para.
    7:

Private arbitral justice, because of its contractual origins,
    is necessarily limited.  As the
BPCPA
recognizes, some types of
    relief can only be made available from a superior court.  Accordingly, to
    the extent Ms. Seidels complaints shelter under s. 172 of the
BPCPA
(and only to that extent), they cannot be waived by an arbitration clause and
    her court action may continue, in my opinion.  As to her alternative complaints,
    whether under other sections of the
BPCPA
, the now repealed
Trade
    Practice Act
, or at common law, the TELUS arbitration clause is valid and
    enforceable.  As to those claims, her court action should be stayed
    pursuant to s. 15 of the
Commercial Arbitration Act
. [Citations
    omitted.]

[53]

The majority of the court accepted that bifurcated proceedings could
    result from its order, with the s. 172 claims proceeding in a court action and
    the other claims, if pursued, going to arbitration. Binnie J. stated that such
    an outcome was consistent with the legislative choice made by British Columbia
    in drawing the boundaries of s. 172 as narrowly as it did (at para. 50). It
    was only to the extent that the plaintiff could bring her case within s. 172 of
    the
BPCPA
that the legislative override in s. 3 would extricate her
    from the arbitration clause to which she agreed in the TELUS contract (at
    para. 31).

[54]

Finally, Binnie J. observed that, while the precise outcome of
Dell

and
Rogers Wireless
was dictated by the intricacies of the
Civil
    Code of Québec
 (at para. 41), the relevant teaching of those cases is
    simply that whether and to what extent the parties freedom to arbitrate is
    limited or curtailed by legislation will depend on a close examination of the
    law of the forum where the irate customers have commenced their court case.
Dell
and
Rogers Wireless
stand for the enforcement of arbitration clauses
absent
    legislative language to the contrary
 (at para. 42; emphasis in original).

(2)

Analysis of the Parties Arguments

[55]

As noted above, there is one issue on this appeal  whether this courts
    analysis in
Griffin
has been overtaken by the Supreme Courts analysis
    in
Seidel
. The appellants make three main arguments in support of
    their position that
Seidel
applies and that, following
Seidel
,
    the non-consumer claims should be stayed. I will address each argument in turn.

(a)

Seidel
Did Not Overtake
Griffin

[56]

The appellants assert that
Griffin
has been overtaken by
Seidel
in part because of the different attitudes toward arbitration expressed in each
    case, which is reflected in their different outcomes  the bifurcation of
    consumer and non-consumer claims in
Seidel
and not in
Griffin
.
    They say
Seidel
affirms the legitimacy of arbitration and requires
    courts to give effect to arbitration clauses, even in contracts of adhesion,
    and even if this leads to a bifurcation of proceedings, unless the legislature
    provides otherwise. They argue that neither s. 7 of the
Consumer Protection
    Act
(which relates only to consumer claims) nor s. 7(5) of the
Arbitration
    Act
provides a clear legislative override, such that the non-consumer
    claims escape the Arbitration Agreement.

[57]

The respondent, on the other hand, asserts that
Seidel
is distinguishable
    as it was decided in the context of B.C.s arbitration and consumer protection
    legislation. There is no equivalent in B.C. to s. 7(5) of Ontarios
Arbitration
    Act
. As such,
Seidel
does not overtake or alter the authority of
Griffin
.

[58]

The respondent also argues that, applying the test articulated in
Seidel
,
    the legislative intent to intervene in consensual arbitration is found both in
    the
Consumer Protection Act
in respect of consumer claims, and in the
    discretion provided under the
Arbitration Act
that permits the court
    to refuse a stay of proceedings in favour of arbitration in specified
    circumstances, including under s. 7(5) where some claims are covered by an
    arbitration agreement, and it would be unreasonable to separate the matters
    covered by the arbitration clause from those which are not.

[59]

I agree that
Seidel
has not overtaken or altered the authority
    of
Griffin
, as
Griffin
is consistent in principle with
Seidel
but was decided in a different legislative context.

[60]

The outcomes in the two cases were driven, not by competing attitudes
    toward arbitration as a dispute resolution mechanism, but by the specific
    legislative framework in each jurisdiction respecting arbitration and consumer
    protection.

[61]

Seidel
recognizes the value and importance of private
    arbitration for dispute resolution, and that arbitration clauses will generally
    be upheld. As I have noted, Binnie J. specifically stated at para. 2 that
    courts will generally give effect to contracts freely entered into by the
    parties, even a contract of adhesion that includes an arbitration clause.

[62]

Griffin
does not contradict the general principle that
    contractual arbitration clauses presumptively will be enforced. See, for
    example:
Ontario Hydro v. Denison Mines Ltd.
, 1992 CarswellOnt 3497
    (W.L. Can.), [1992] O.J. No. 2948 (Gen. Div.), at para. 9, W.L. Can.,
Inforica
    Inc. v. C.G.I. Information Systems and Management Consultants Inc.
, 2009
    ONCA 642, 97 O.R. (3d) 161, at para. 14, and
Haas v. Gunasekaram
, 2016
    ONCA 744, [2016] O.J. No. 5286, at paras. 10-12. The decision in
Griffin
,

to permit all claims to proceed in court together, was not premised on a
    disregard for arbitration as a viable dispute resolution mechanism but on the
    application of the discretion afforded by s. 7(5) of the
Arbitration Act
and the conclusion that a partial stay of
    non-consumer claims would be unreasonable where a majority of claims asserted
    in the action were non-arbitrable consumer claims and where the mot
ion
    judge found that the non-consumer claims could not be efficiently litigated
    through the arbitration process.

[63]

Accepting the primacy of arbitration over judicial proceedings where the
    parties have a contractual agreement to arbitrate does not alter the
Griffin
analysis or the disposition of the present appeal. Rather, both
Seidel
and
Griffin
accept that arbitration agreements will generally be
    enforced, that any restriction of the parties freedom to arbitrate must be
    found in the legislation of the jurisdiction, and that the ability of the court
    to interfere with this freedom depends on the legislative context.

[64]

In effect, the appellants seek to apply the result in
Seidel

    a bifurcation of proceedings  while ignoring the material differences between
    the Ontario and B.C. consumer protection and domestic arbitration legislation.
    It is to that legislation that I now turn.

(i)

Consumer Protection Legislation

[65]

First, there are material differences in the consumer protection
    legislation of Ontario and B.C. respecting court proceedings. Arbitration
    clauses in consumer contracts have been unenforceable in Ontario since the
Consumer
    Protection Act
came into force on July 30, 2005. Section 7 is an express
    provision that exempts consumer contracts from mandatory arbitration. In
Seidel
terms, this constitutes an express legislative override of the parties freedom
    to choose arbitration.

[66]

There is no equivalent to s. 7 in the
BPCPA
. Rather, s. 172 of
    the
BPCPA
, which provides for a cause of action that can be asserted
    in the superior court, and s. 3, which prohibits contracting out of statutory
    rights, were interpreted together in
Seidel
as providing a legislative
    override of the parties freedom to choose arbitration.

[67]

Binnie J. highlighted the fact that his decision was firmly based on the
    specific provisions of B.C. law. He noted that, in enacting s. 172 of the
BPCPA
,
    B.C.s legislature sought to ensure only that certain claims proceed in the
    court system and that, in contrast, the legislatures of Ontario and Québec decided
    to ban arbitration of consumer claims altogether through consumer protection
    legislation. He explained that it is incumbent on the courts to give effect to
    that legislative choice (at para. 40).

(ii)

Domestic Arbitration Legislation

[68]

The second important difference between the law in B.C. and Ontario is
    in their domestic arbitration legislation, and in particular, the legislatures
    tolerance for court intervention in private contractual arbitrations.

[69]

B.C.s
Commercial Arbitration Act
provides for a very limited
    right of the courts to intervene in arbitration. Section 15 restricts
    intervention to circumstances in which the arbitration agreement is void,
    inoperative or incapable of being performed. This section was changed two
    years after the B.C. legislation was enacted, to reflect the wording of article
    8 of the UNCITRAL
Model Law on International Commercial Arbitration
,
    U.N. Doc. A/40/17 (1985), Ann. 1.
[3]
Ontario, by contrast, only adopted the UNCITRAL model law for international arbitrations
    through the enactment of the
International Commercial Arbitration Act,

2017
, S.O. 2017, c. 2, Sched. 5, and its predecessor R.S.O. 1990, c.
    I.9.

[70]

Ontarios
Arbitration Act
, which governs domestic arbitrations,
    provides broader authority for the courts intervention in arbitrations than
    legislation enacted based on the UNCITRAL model law. Ontarios legislation is
    based on a model law created by the Uniform Law Conference of Canada (ULCC)
    in 1990. Section 7 of the
Uniform Arbitration Act (1990)
deals with
    stays of court proceedings.
[4]

[71]

While s. 7(1) of Ontarios
Arbitration Act
provides that a
    court shall stay a court proceeding commenced by a party to an arbitration
    agreement on the motion of another party to the agreement, this is subject to
    the exceptions set out in s. 7(2). The exceptions confer a discretion on the
    court to intervene: (1) where a party entered into the agreement while under a
    legal incapacity, (2) where the arbitration agreement is invalid, (3) where the
    subject-matter of the dispute is not capable of being the subject of
    arbitration under Ontario law, (4) where the motion was brought with undue
    delay, and (5) where the matter is a proper one for default or summary
    judgment. The grounds upon which a court may intervene in domestic arbitrations
    in Ontario by refusing to stay a court proceeding are broader than the grounds
    for intervention provided for under s. 15 of the B.C. legislation. Ontarios
    legislation permits the court to consider the conduct of a defendant who fails
    to move promptly to stay a court proceeding and to consider the substance of
    the claim to determine whether default or summary judgment would be
    appropriate.

[72]

Section 7(5) of the
Arbitration Act
is an extension of the
    courts discretion and operates where an action has been commenced and the
    arbitration agreement covers some, but not all, claims. In such a case, the
    court may grant a partial stay, but only where it is reasonable to separate
    the matters dealt with in the agreement from the other matters. Section 7(5)
    anticipates that when an action contains claims that are subject to an
    arbitration agreement and claims that are not, bifurcated proceedings will
    result when it is reasonable to impose a partial stay. When a partial stay is
    not reasonable, the proceedings will not be bifurcated.

[73]

In Ontario, accordingly, courts have the discretion to refuse to enforce
    an arbitration clause that covers some claims in an action when other claims
    are not subject to domestic arbitration. It is this legislative choice that drives
    the analysis. The bifurcation of proceedings in
Seidel
resulted from
    B.C.s statutory scheme and was described as an outcomeconsistent with the
    legislative choice made by British Columbia in drawing the boundaries of s. 172
    as narrowly as it did:
Seidel
, at para. 50. One might add that the
    bifurcation of proceedings in
Seidel
also resulted from the absence of
    a discretion similar to that granted to courts pursuant to s. 7(5) of the
Arbitration
    Act
in B.C.s arbitration legislation.

[74]

A recent case in Manitoba considered whether
Seidel
requires a
    different approach to the question of reasonableness in stay applications in
    class proceedings where only some claims are arbitrable:
Briones v.
    National Money Mart
, 2013 MBQB 168, 295 Man. R. (2d) 101.
Briones
involved a proposed class action that included consumer protection claims under
T
he Consumer Protection Act
, C.C.S.M., c. C200, and
The

Unconscionable Transactions Act
, C.C.S.M., c. U20, that the court
    interpreted as non-arbitrable, and other claims, which were subject to the
    arbitration clause. The defendant applied for a partial stay of proceedings
    under s. 7(5) of
The Arbitration Act
, C.C.S.M., c. A120 (the
    equivalent to Ontarios s. 7(5)), asserting that, following
Seidel
and
    its express approval of bifurcated proceedings, it would be reasonable to
    grant a partial stay.

[75]

The Court of Queens Bench denied a partial stay on the basis that,
    having regard to the overlapping matters that could not be reasonably
    separated, the undesirability and inefficiency of multiple proceedings, and the
    risk of inconsistent results, it would not be reasonable to separate the
    matters subject to arbitration from other matters in the litigation. The court expressly
    referred to and followed the approach in
Griffin
. The court concluded
    that there was no issue in
Seidel
as to whether a partial stay should
    be granted as the [B.C. legislation] did not have a provision equivalent to s.
    7(5) of the
Arbitration Acts
of Manitoba, Alberta, and Ontario (at
    para. 62). This decision was upheld by the Manitoba Court of Appeal as a
    reasonable exercise of the motion judges discretion: 2014 MBCA 57, 306 Man. R.
    (2d) 129, at para. 42, leave to appeal refused, [2014] SCCA No. 355.

[76]

I agree with the reasoning in
Briones
and the position of the
    respondent in this appeal. The differences between the legislation of Ontario
    and B.C. account for the different approaches in
Griffin
and
Seidel
to the bifurcation of proceedings where some claims are subject to an
    arbitration agreement and some are not. In Ontario, the legislature chose to
    exempt consumer claims from mandatory arbitration and, in the domestic context,
    to provide the court with the discretion to determine whether it is reasonable
    to separate matters subject to an arbitration clause from other matters in the
    litigation. The combination of these legislative provisions, which differ from
    those in B.C., drove the result in
Griffin
as well as the result in
    this case.

(b)

No Ousting of the Courts Jurisdiction and No Issue of Substantive
    Rights

[77]

The appellants

also rely on
Seidel
to advance what was
    one of their central arguments before this court. They contend that
Seidel

confirms that the procedural device of a class proceeding does not alter
    the parties substantive right to arbitrate and does not give the court
    jurisdiction over claims required to be submitted to arbitration. Further, the
    appellants argue that, in light of
Seidel
, s. 7(5) of the
Arbitration
    Act
cannot be read as conferring jurisdiction over claims the parties
    have agreed to submit to arbitration and that such claims are subject to the
    mandatory stay provision in s. 7(1).

[78]

In support of their jurisdiction argument, the appellants point
    to the Supreme Courts decision in
Bisaillon v. Concordia University
,
    2006 SCC 19, [2006] 1 S.C.R. 666, where a class action commenced by a unionized
    employee was dismissed for lack of jurisdiction. The court found the procedural
    vehicle of a class proceeding to be incompatible with the exclusive
    jurisdiction of grievance arbitrators over the dispute in question. LeBel J.,
    for a unanimous court, described the class action as a procedural vehicle
    whose use neither modifies nor creates substantive rights (at para. 17). He
    stated, at para. 22:

[T]he class action procedure cannot have the effect of
    conferring jurisdiction on the Superior Court over a group of cases that would
    otherwise fall within the subject-matter jurisdiction of another court or
    tribunal. Except as provided for by law, this procedure does not alter the jurisdiction
    of courts and tribunals. Nor does it create new substantive rights.

[79]

Comments similar to these were made by the Supreme Court in
Dell
(at paras. 105-108) and in
Rogers Wireless
(at paras. 1, 11-13, 20),
    and were echoed in the dissenting opinion in
Seidel

(at paras.
    65-69 and 136-138).

[80]

The

respondent asserts that, in Ontario, arbitration clauses do
    not oust the courts jurisdiction. Rather, the court will defer to an
    arbitration agreement, subject to the exercise of its powers under the
Arbitration
    Act
.

[81]

In my view
,
the appellants misinterpret the majority decision in
Seidel
and ignore the main teaching from that decision  that the enforceability of an
    arbitration clause depends on the legislative context and whether the
    legislature intended to limit the freedom to arbitrate.

[82]

The majority in
Seidel
did not characterize the issue as one of
    jurisdiction and did not speak of procedural versus substantive rights because
    these distinctions were not relevant to its analysis. Rather, the issue was
    recast as one of statutory interpretation.

[83]

Binnie J. specifically rejected the suggestion that
Dell
and
Rogers
    Wireless
apply outside of Québec, noting that these cases were decided
    under [t]he intricacies of the
Civil Code of Québec
 (at para. 41).
    Indeed, article 2638 of the
Civil Code of Québec
provides: 
An arbitration agreement is a contract by which the parties undertake
    to submit a present or future dispute to the decision of one or more
    arbitrators,
to the exclusion of the courts

    (emphasis added).

[84]

As the dissent in
Seidel

observed, unlike
Québecs legislation
, B.C.s
Commercial
    Arbitration Act
does not contain a provision that ousts the jurisdiction
    of the courts (at para. 111).

[85]

Similarly, there is nothing in Ontarios
Arbitration Act
, which
    governs domestic arbitrations, to suggest that an arbitration clause removes or
    ousts the courts jurisdiction over a dispute. Perell J. observed in
Smith
    Estate ONSC 2008
that as a matter of doctrine, whatever the situation may
    be in Québec the court's jurisdiction in Ontario is not ousted by the presence
    of an arbitration agreement, but rather the court's jurisdiction is governed by
    its own jurisdiction and by s. 7 of the
Arbitration Act, 1991
 (at
    para. 257).

[86]

In my view, it is sufficient for the purpose of this appeal to note that
    injecting the question of jurisdiction into the discussion of whether a partial
    stay of proceedings can be granted under Ontarios
Arbitration Act
is
    both unnecessary and misleading.

[87]

As for the appellants argument that the contractual right to arbitrate
    is a substantive right that is unaffected by the procedural vehicle of a
    class proceeding, this issue simply does not arise in the present case nor was
    it the basis on which the Supreme Court of Canada decided
Seidel
.
    While this distinction informed the decisions in
Dell
,
Rogers
    Wireless
and
MacKinnon BCCA 2009
, as well as
Seidel
in
    the courts below, the majority in
Seidel
did not address the issue in
    this way.

[88]

The class proceeding context did not inform the preliminary question of
    whether Ms. Seidels claims should be stayed. While the question of a stay in
    favour of arbitration arose in the context of class proceedings, Binnie J.
    specifically stated that the appeal only concerned Ms. Seidels individual
    action and that [w]hether or not the s. 172 claims should be certified as a
    class action is a matter that will have to be determined by the courts of
    British Columbia, which have yet to address the issue (at para. 8). Accordingly,
    the distinction between substantive and procedural rights did not arise in and
    was irrelevant to the analysis of the majority of the court in
Seidel
.

[89]

Similarly in
Griffin
, this court determined the issues without
    addressing the effect of the procedural device of a class proceeding on the
    substantive rights conferred by an arbitration clause. Instead, because the
    action involved both consumer claims (which are not subject to mandatory
    arbitration pursuant to s. 7 of the
Consumer Protection Act
) and
    non-consumer claims, the issue was whether s. 7(5) of the
Arbitration Act
grants a court the discretion to refuse a partial stay of non-consumer claims
    so that these claims may be adjudicated alongside those of consumers.

[90]

I therefore reject the appellants submission that the Arbitration
    Agreement ousts the jurisdiction of the court, the suggestion that one must
    look for a specific provision to confer jurisdiction before the Arbitration
    Agreement will not be given effect, and the argument that the substantive right
    to arbitrate must be given primacy over the procedural vehicle of a class
    proceeding. The question of whether the substantive right to arbitrate must be
    given effect is governed by the domestic legislation of Ontario and cannot be
    determined in a legislative vacuum as the appellants would have us do. Under
    the Ontario
Arbitration Act
, jurisdiction is specifically retained in
    the situations covered by s. 7(5) and the present situation is governed by this
    provision.

(c)

The Conflation of the Stay Issue and the Preferability Analysis

[91]

Finally, the appellants contend that the motions judge erred in deciding
    the issue of whether a stay should be granted in the context of a preferability
    analysis (whether a class proceeding would be the preferable procedure under
    s. 5(1)(d) of the
Class Proceedings Act
), and that this approach has
    been overtaken by
Seidel
and other authorities. They say that, having
    decided that a class proceeding was the preferable procedure, the motions
    judge then refused to enforce the arbitration clause.

[92]

The respondent contends that, whether or not
Seidel
should be
    interpreted as overturning prior authorities such as
Smith ONCA 2005
,
    the motions judge did not deal with the stay issue as part of the preferability
    analysis on certification and therefore did not err in this regard.

[93]

In my view, the appellants argument mischaracterizes the motions
    judges decision in this case.

[94]

As I have already noted, the earlier decision of this court in
Smith
    ONCA 2005
concluded that the issue of the enforceability of an arbitration
    clause should be determined only after the preferability analysis in a class
    proceeding certification motion. The subsequent cases of
Dell
and
Rogers
    Wireless
called that approach into question. In
Griffin
, the
    judge at first instance adopted the approach of this court in
Smith ONCA
    2005
, however, as Sharpe J.A. noted on appeal, it was unnecessary to
    determine the effect of
Dell
on cases in Ontario due to the
Consumer
    Protection Act
. By outlawing mandatory arbitration clauses in consumer
    agreements, the legislature in Ontario excluded the application of the
    reasoning in
Dell

to agreements covered by the
Consumer
    Protection Act
:
Griffin
, at para. 64.

[95]

Similarly, the motions judge in this case, although dealing with two
    motions  one to stay and the other to certify the class proceeding  did not
    approach the issue of whether to grant a stay by undertaking a preferability
    analysis, as the appellants assert. This is notwithstanding that the motions
    judges reasons set out her analysis and conclusions on the stay motion in a
    section under the heading Preferable Procedure. The issue before her was the
    same as the issue before this court in
Griffin
 because of the
    combined effect of the
Consumer Protection Act
and the
Arbitration
    Act
, she had to determine whether it was reasonable to separate the
    proceedings. Neither the motions judge in this case, nor this court in
Griffin
,
refused a stay of proceedings of
    arbitrable claims based on the conclusion that a class action would be a preferable
    procedure.

[96]

In the present appeal, and in this courts decision in
Griffin
,
    the question of the enforceability of the arbitration agreement was determined
    without resort to the
Class Proceedings Act
. As such, the appellants
    are wrong when they suggest that the motions judge erred in determining the
    issue as part of the preferability analysis. While this was the approach
    endorsed in
Griffin
and
Seidel
at first instance, it is not
    how the matter was determined on appeal in
Griffin
, in the Supreme
    Court in
Seidel
or by the motions judge in this case.

E.

CONCLUSION AND DISPOSITION

[97]

It bears repeating that the sole issue in this appeal is whether the
Griffin
analysis and framework for determining whether a partial stay of proceedings
    should be granted has been overtaken by a new and different analysis in
Seidel
.
    There was no challenge to the exercise of the motions judges discretion in
    refusing a partial stay and, in particular, her assessment on the facts of this
    case, of whether it would be reasonable to bifurcate the proceedings.

[98]

For the foregoing reasons I conclude that the motions judge did not err
    in rejecting the argument that
Griffin
has been overtaken by
Seidel
and that, applying
Seidel
, a partial stay ought to have been granted. As
    such, I would uphold the motions judges decision to refuse a stay.

[99]

I would therefore dismiss the appeal. I would award costs to the
    respondents fixed at $30,000, the amount agreed between the parties, inclusive
    of HST and disbursements.

K. van Rensburg J.A.

I agree. K.M. Weiler J.A.




R.A. Blair J.A.
(Concurring in the result):

[100]

I have had the opportunity to read the careful and thorough reasons of my
    colleague, van Rensburg J.A.  I agree with her that the appeal must be
    dismissed, but would do so on a more restricted basis.

[101]

First, I agree that this Courts decision in
Griffin v. Dell Canada
    Inc.
has not been overtaken, or effectively overruled, by the Supreme
    Court of Canadas later decision in
Seidel v. TELUS Communications Inc
.
Secondly, while I have reservations about the correctness of the decision in
Griffin
as it relates to a partial stay of the non-consumer claims, it is binding
    on us and dispositive of the issue.

Seidel
and
Griffin

[102]

Seidel
has not overtaken
Griffin
because it did not
    determine the same issues as those raised in
Griffin
.  As decided by
    the majority in the Supreme Court of Canada,
Seidel
concerned only the
    claim of Ms. Seidel as an individual consumer plaintiff.  The majority confined
    its analysis to a determination of whether the British Columbia legislative
    scheme operated as an override to her individual arbitration clause, and
    decided that it did.  The majority did not deal with the interface between
    consumer and non-consumer claims that are subject to different arbitration
    agreements, nor did it address the complication of the class action nature of
    her claim.
Griffin
dealt squarely with those issues, and decided that
    s. 7(5) of the
Arbitration Act 1991
, S.O. 1991, c. 17 provided the
    court with a discretion in such cases to refuse to grant the mandatory stay of
    a proceeding that would otherwise flow from s. 7(1) of the
Act
.  That
    decision is binding and dispositive.

Griffin

[103]

In the circumstances, this is not the place to address in detail the
    reasons why, in my respectful view,
Griffin
may not be correctly
    decided insofar as it relates to a partial stay of the non-consumer claims. 
    Suffice it to say, there are questions remaining that may warrant further
    consideration at another time and that were not fully addressed in that case. 
    Two come to mind, for example (one more specific in nature, and the other, more
    general).

[104]

First, as a matter of statutory interpretation, may the words other
    matters in s. 7(5) of the
Arbitration Act 1991
 when considered in
    the context of s. 7 as a whole and the purposes of that Act  be read in a way
    that cross-pollinates the partial-refusal-to-stay power from a single
    arbitration agreement context to other arbitration agreements involving
    different parties and containing arbitration clauses that are otherwise valid
    and enforceable?  Or do other matters refer to other matters arising between
    the same contracting parties but that are not covered by the arbitration
    agreement between them? One of the purposes of the
Arbitration Act 1991
is to encourage parties to resolve their disputes through private arbitration
    proceedings and to support their agreements to do so.  Section 7 accomplishes
    the latter by providing for a mandatory stay of court proceedings unless one of
    the enumerated exceptions applies (which is not the case here) and, having
    regard to its overall wording, appears to address circumstances relating to a
    single arbitration agreement, and not the interconnection between a number of
    such agreements involving different parties.  This would work against the
    approach taken in
Griffin
, but was not considered in that case.

[105]

Secondly, and more generally, ought litigants be entitled to sidestep
    what would otherwise be substantive and statutory impediments to proceeding in
    court with an arbitral claim by the simple expedient of adding consumer claims
    (which cannot be stayed, by virtue of the
Consumer Protection Act
,
    2002
, S.O. 2002, c. 30) to non-consumer claims (which generally are subject
    to a mandatory stay) and wrapping all claims in the cloak of a class
    proceeding?  Put another way, may the
Class Proceedings Act, 1992
,
    S.O. 1992, c. 6 (a procedural rights statute) be used to override the provisions
    of the
Arbitration Act 1991
affording contractual parties the right to
    agree to binding arbitration (a substantive right)?  As my colleague notes,
    courts have repeatedly said class action proceedings do not alter the
    jurisdiction of courts or tribunals or create new substantive rights: see
Bisaillon
    v. Concordia University
, 2006 SCC 19, [2006] 1 S.C.R. 666, at para. 22;
Dell
    Computer Corp. v. Union des consommateurs
, 2007 SCC 34, 284 D.L.R. (4th)
    577, at paras. 105-108;
Rogers Wireless Inc. v. Muroff
, 2007 SCC 35, 284
    D.L.R. (4th) 675, at paras. 1, 11-13, and 20;
Seidel
, at paras. 65-69,
    89, 96-119 and 135-138, per LeBel and Deschamps JJ. in dissent.  They have not
    said this principle may be overridden by resort to the preferable proceedings
    provisions under the
Class Proceedings Act
.

[106]

I flag these questions only to explain in a general way why I have
    reservations about the correctness of this Courts decision in
Griffin
.
Whatever the answers to them may be, they were not addressed by the
Griffin
court, which appears to have approached the problem more from the perspective
    of whether the class action was a preferable approach in order to avoid a
    multiplicity of proceedings or, in some cases, to avoid the impracticality of
    no proceedings at all.  While those are very legitimate concerns, it may be
    that a response to the foregoing questions is necessary before the court can
    reach the stage where class proceeding principles come into play.

Resolution

[107]

The
Griffin

decision is binding, however, and has not been
    affected in terms of that binding effect by
Seidel
.

[108]

I agree, therefore, that the appeal must be dismissed.

R.A.
    Blair J.A.

Released: (RAB) May 31, 2017

Appendix A

Consumer Protection Act
,
2002
, S.O.
    2002, c. 30, Sched. A

7
(1)
The substantive and procedural rights given under this Act apply despite
    any agreement or waiver to the contrary.

(2)
Without limiting the generality of subsection (1),
    any term or acknowledgment in a consumer agreement or a related agreement that
    requires or has the effect of requiring that disputes arising out of the
    consumer agreement be submitted to arbitration is invalid insofar as it
    prevents a consumer from exercising a right to commence an action in the
    Superior Court of Justice given under this Act.


(3) Despite subsections (1) and (2), after a
    dispute over which a consumer may commence an action in the Superior Court of
    Justice arises, the consumer, the supplier and any other person involved in the
    dispute may agree to resolve the dispute using any procedure that is available
    in law.

(4) A settlement or decision that results from
    the procedure agreed to under subsection (3) is as binding on the parties as
    such a settlement or decision would be if it were reached in respect of a
    dispute concerning an agreement to which this Act does not apply.
Subsection 7(1) of the
Arbitration Act, 1991
does not apply in respect of any proceeding to
    which subsection (2) applies unless, after the dispute arises, the consumer
    agrees to submit the dispute to arbitration.

8
(1) A consumer may commence a
    proceeding on behalf of members of a class under the
Class
    Proceedings Act, 1992
or may become a member of a class in
    such a proceeding in respect of a dispute arising out of a consumer agreement
    despite any term or acknowledgment in the consumer agreement or a related
    agreement that purports to prevent or has the effect of preventing the consumer
    from commencing or becoming a member of a class proceeding.

(2) After a dispute that may result in a class
    proceeding arises, the consumer, the supplier and any other person involved in
    it may agree to resolve the dispute using any procedure that is available in
    law.

(3) A settlement or decision that results from
    the procedure agreed to under subsection (2) is as binding on the parties as
    such a settlement or decision would be if it were reached in respect of a
    dispute concerning an agreement to which this Act does not apply.

(4) Subsection 7 (1) of the
Arbitration
    Act, 1991
does not apply in respect of any proceeding to
    which subsection (1) applies unless, after the dispute arises, the consumer
    agrees to submit the dispute to arbitration.

Arbitration Act
, 1991, S.O.
    1991, c. 17

6
No court shall intervene in matters governed
    by this Act, except for the following purposes, in accordance with this Act:

1. To assist the conducting of arbitrations.

2. To ensure that arbitrations are conducted in accordance
    with arbitration agreements.

3. To prevent unequal or unfair treatment of parties to
    arbitration agreements.

4. To enforce awards.

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 courts decision.

Class Proceedings Act
, 1992,
    S.O. 1992, c. 6

5
(1) The court shall certify a class proceeding on
    a motion under section 2, 3 or 4

if,

(a) the pleadings or the notice of application discloses a
    cause of action;

(b) there is an identifiable class of two or more persons that
    would be represented by the representative plaintiff or defendant;

(c) the claims or defences of the class members raise common
    issues;

(d) a class proceeding would be the preferable procedure for
    the resolution of the common issues; and

(e) there is a representative plaintiff or defendant who,

(i) would fairly and adequately represent the interests of
    the class,

(ii) has produced a plan for the proceeding that sets out a
    workable method of advancing the proceeding on behalf of the class and of
    notifying class members of the proceeding, and

(iii) does not have, on the common issues for the class, an
    interest in conflict with the interests of other class members.

Business Practices and Consumer Protection Act
,
    S.B.C. 2004, c. 2


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.



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 a supplier in respect of a consumer
    transaction contravenes this Act or the regulations;

(b) an interim or permanent injunction
    restraining a supplier from contravening this Act or the regulations.

Commercial Arbitration Act
, R.S.B.C.
    1996, c. 55

15

(1)
    If a party to an arbitration agreement commences legal proceedings in a court
    against another party to the agreement in respect of a matter agreed to be
    submitted to arbitration, a party to the legal proceedings may apply, before
    filing a response to civil claim or a response to family claim or taking any
    other step in the proceedings, to that court to stay the legal proceedings.

(2) In an application under subsection (1),
    the court must make an order staying the legal proceedings unless it determines
    that the arbitration agreement is void, inoperative or incapable of being
    performed.

(3) An arbitration may be commenced or
    continued and an arbitral award made even though an application has been
    brought under subsection (1) and the issue is pending before the court.

(4) It is not incompatible with an
    arbitration agreement for a party to request from the Supreme Court, before or
    during arbitral proceedings, an interim measure of protection and for the court
    to grant that measure.





[1]
The statute was renamed the
Arbitration Act
on March 18, 2013.



[2]

The
Code of Civil Procedure
was replaced by the
Code
    of Civil Procedure
, C.Q.L.R., c. C-25.01, which came into force on January
    1, 2016.



[3]
See also the B.C.
International Commercial Arbitration Act
,

R.S.B.C.
    1996, c. 233, s. 8(1) to the same effect. Québecs arbitration law, from its
    enactment in 1986, followed the UNCITRAL model law, including its restrictive
    provisions for court intervention for both domestic and international arbitrations:
Act to amend the Civil Code and the Code of Civil Procedure in respect of
    arbitration
, S.Q. 1986, c. 73.



[4]
Amendments were made to s. 7 of the
Uniform Arbitration Act
in 2002,
    which were never adopted in Ontario, and in 2016, which have not yet been adopted
    in Ontario. The amendments narrow the courts discretion to interfere with an
    arbitration clause, including the circumstances in which a partial stay of
    court proceedings can be granted: Uniform Law Conference of Canada,
Uniform
    Arbitration Act (2016)
, s. 7 (online: www.ulcc.ca).


