Printemps 2011 - ADR Institute of Canada

(2) In an application under subsection (1), the court mustmake an order staying the legal proceedings unless itdetermines that the arbitration agreement is void, inoperativeor incapable of being performed.The British Columbia Court of Appeal, overturning the judge offirst instance, stayed Ms. Seidel’s action in favour of arbitration.In doing so, that court held that the Supreme Court of Canada’sdecision in Dell Computer Corp. v. Union des consommateurs,2007 SCC 34, though dealing with the relationship between arbitrationclauses and class actions under the Civil Code of Quebec,was also applicable to the statutory regime in British Columbia(which was similar to that in Quebec), and thus binding.Before the Supreme Court of Canada, the only remaining issuewas whether Ms. Seidel’s claims under the BPCPA had been properlystayed or whether s. 3 of the BPCPA created an exception tothe mandatory language of ss. 15(1) and (2) of the CAA.Discussion(i) Competence-Competence PrincipleIn a split 5-4 decision the court ruled that s. 3 of the BPCPA did, infact, create such an exception. Yet, the language employed throughoutthe dissenting reasons revealed a deep rift in the court as to therole of arbitration proceedings in Canada’s present justice system:In our view, [the majority’s] interpretation represents an inexplicablethrowback to a time when courts monopolized decisionmaking and arbitrators were treated as second-classadjudicators 3 .There was no disagreement that the competence-competence principleenunciated in Dell had general application 4 . It is now beyonddoubt in Canada that an express legislative direction thatarbitrators are to consider the scope of their own jurisdiction,coupled with the use of language similar to that found in the 1958Convention on the Recognition and Enforcement of Foreign ArbitralAwards (the “New York Convention”) and the 1985UNICITRAL Model Law on International Commercial Arbitration(“Model Law”) amounts to incorporation of the competencecompetenceprinciple.In such circumstances, absent a challenge to the arbitrator’s jurisdictionbased solely on a question of law (or one of mixed fact andlaw requiring only superficial consideration of the evidence in therecord), the existence or validity of an arbitration agreement towhich legislation like the CAA applies must be considered first bythe arbitrator, and the court should grant the stay. In this case, alljudges of the Supreme Court agreed that the British Columbia Courtof Appeal had properly accepted and endorsed this approach.However, the court was divided as to the correct outcome of thatapproach on the facts of this case.(ii) The effect of s. 3 of the BPCPAIt is readily apparent from how the majority and the dissent, respectively,characterized the core issue, that there exists a schismin the court about the role of arbitration in today’s Canadian justicesystem. Justice Binnie, for the majority, framed the issue asone of “access to justice”, noting that “private arbitral justice, becauseof its contractual origins, is necessarily limited” 5 .The dissenting opinion, penned by Justices LeBel and Deschamps,focussed not on access to justice simpliciter but, rather, whetheraccess to justice must mean “access to a judge”:In an effort to promote and improve access to justice, and tomake more efficient use of scarce judicial resources, legislatureshave adopted new procedural vehicles designed to modifyor provide alternatives to the traditional court action. Thesealternatives include class actions and arbitration, both of whichhave been endorsed by this Court. Consumers in British Columbia,depending on the contractual arrangements they make,already have access to either arbitration or the courts to resolvetheir disputes. In this case, the consumer’s contract providesthat in the event of a dispute, the exclusive adjudicativeforum is arbitration. This is a forum our courts have long acceptedas an efficient and effective access to justice mechanism.Thus, the question in this case is instead whether accessto justice means — and requires — access to a judge 6 .The issues, thus framed, never left any doubt about the outcome.Justice Binnie concluded that s. 3 of the BPCPA should be interpretedto mean “that to the extent the arbitration clause purports totake away a right, benefit or protection conferred by the BPCPA,it will be invalid” 7 . Embedded in this reasoning is the notion that itis a right, benefit or protection under the BPCPA to assert a consumercomplaint in the courts. The corollary is that being requiredto assert the same complaint before an arbitral tribunal is tantamountto an impairment of such right, benefit or protection. AsBinnie J. noted:The text of the statute favours Ms. Seidel’s interpretation. Theoperative language of s. 3 (“rights, benefits or protections”) isall-encompassing. TELUS argues (and my colleagues LeBeland Deschamps JJ. agree, at para. 136) that the s. 172 right to“bring an action in Supreme Court” is merely procedural. Withrespect, this characterization is of no assistance to TELUS.Whether procedural or substantive, it is indubitably a “righ[t]”or “benefi[t]” conferred by the statute. If the legislature hadintended to draw distinctions between procedural and substantive“rights, benefits or protections” in s. 3 of the BPCPA, itcould easily have done so, but it chose not to. Ms. Seidel possessesa statutory “right” to take her complaint to the SupremeCourt. My colleagues LeBel and Deschamps JJ. read down theexpression “rights, benefits or protections” to exclude proceduralrights. I can find no justification for modifying the legislationin this way 8 .Binnie J. offered up essentially two justifications for his approach:• In the consumer context, declarations and injunctions (remediesprovided for under the BPCPA) are the most efficientremedies in terms of protection of consumers’ interests and thedeterrence of wrongful suppliers conduct 9 ; and• By contrast, arbitrations are “private and confidential”,lack precedential value and an order made by an arbitra-Le Journal canadien d'arbitrage et de médiation59