Ontario Civil

Alternative Dispute Resolution

Relation of arbitration to court proceedings

Stay of court proceedings

Judge refusing partial stay as unreasonable to separate consumer and non-consumer claims

Plaintiffs claimed defendant phone companies engaged in undisclosed billing practices of “rounding up” calls to next minute. Defendants’ contracts contained mandatory arbitration clause but pursuant to s. 7(2) of Consumer Protection Act, claims in respect of consumer contracts can proceed in court. Motions judge granted plaintiffs’ motions to certify actions as class proceedings and dismissed defendants’ motion for stay of non-consumer claims pursuant to s. 7(5) of Arbitration Act, 1991. In refusing to grant partial stay, judge followed Ontario Court of Appeal decision in G case, which she concluded had not been overtaken by Supreme Court of Canada decision in S case. Judge determined it would be unreasonable to separate consumer and non-consumer claims. Defendants appealed denial of partial stay of non-consumer claims. Appeal dismissed. Judge’s decision to refuse stay was upheld. Judge was correct in applying G case to determine whether partial stay of proceedings should be granted under s. 7(5) of Arbitration Act, 1991 in proposed class proceeding involving both consumer and business customer claims. While both G case and S case involved arbitration clauses in context of proposed class proceeding, S case was decided under relevant laws of BC, which differed in material ways from those of Ontario. Arbitration agreement did not oust jurisdiction of court. G case remained good law in respect of proceedings commenced in Ontario, and had not been overtaken by S case. Judge did not refuse stay of proceedings of arbitrable claims based on conclusion that class action would be preferable procedure.

Wellman v. TELUS Communications Company (2017), 2017 CarswellOnt 8100, 2017 ONCA 433, K.M. Weiler J.A., R.A. Blair J.A., and K. van Rensburg J.A. (Ont. C.A.); affirmed (2014), 2014 CarswellOnt 16562, 2014 ONSC 3318, Conway J. (Ont. S.C.J.).

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