Canada: Non-Arbitrable Claims Appropriate For Class Certification

In the ongoing saga of Seidel v Telus Communications Inc., the BC Supreme Court was asked to certify the few claims that survived the enforceable mandatory arbitration clause, and it certified those claims in  2016 BCSC 114. This decision reminds us that carefully drafted arbitration clauses can carve out claims from potential class proceedings unless such clauses are overridden by express legislation.

The Proposed Class Action

As we have previously posted, the SCC decided that the binding arbitration clause contained in the Telus contracts was enforceable in respect of non-consumer claims, However, according to the SCC, the applicable consumer protection legislation overrode the arbitration clause for the specified claims falling under that Act. Justice Masuhara's January 2016 certified the surviving consumer claims as a class action.

The plaintiff alleged breaches of the BC Business Practices and Consumer Protection Act (BPCPA) based on historic billing practices relating to incoming calls. As a result of these practices, the plaintiff sought both a declaration that Telus engaged in deceptive acts and practices and/or unconscionable acts and practices pursuant to sections 5 and 9 of the BPCPA as well as an order returning the monies acquired because of these contraventions of the BPCPA pursuant to section 172 of the BPCPA.

The Certification Decision

The Court assessed each of the 5 criteria set out in the BC Class Proceedings Act that must be satisfied in order to certify a class action. In so doing, the Court noted that although the burden is on the plaintiff, that burden is not an onerous one:

  1. Reasonable Cause of Action

The Court found that it was not necessary for the class members to establish a proprietary interest in the monies gained by the defendant. Rather, given the low bar that it not be plain and obvious that no reasonable cause exists, the Court found that as long as the plaintiff could demonstrate an "interest" in the funds obtained by the defendant it had a reasonable cause of action on the basis of breach of contract for which recovery could be granted under section 172 of the BPCPA.

The Court also rejected the defendant's argument that the Court lacked the jurisdiction to certify these claims on the basis that damages owed to plaintiff for breach of contract is an arbitrable issue, severed from a class proceeding. Rather, the Court found that the mandatory arbitration clause does not preclude the plaintiff from relying on breach of contract to establish a right to recovery under the BPCPA.

  1. Identifiable Class of Two or More Persons

The proposed class was defined as:

All individual customers of the Defendant who were resident in British Columbia and who contracted for cellular telephone services through the Defendant from January 21, 1999 (excluding the Defendants' employees and agents) to the date on which the Defendant changed the language in its contracts.

The Court found that the proposed class, which appeared to be broad, was sufficient to meet this requirement because the definition allowed objective identification of a "consumer" as required by the BPCPA and any individual inquiry required would not make the definition unworkable. The Court further noted that overbreadth is not necessarily fatal to certification, as the class definition can always be revised.

Recently, the BC Supreme Court in Jiang v Peoples Trust Company, 2016 BCSC 368, found that a proposed class consisting of consumer residents in BC who purchased, received or acquired one or more Prepaid Cards issued or sold by any of the defendant was not certifiable because unlike in Seidel it was not possible, on an objective basis, to determine whether a proposed class member was a "consumer" under the BPCPA. As such, a multitude of individual inquires would be required.

  1. Common Question of Law or Fact

The Court rejected the defendant's argument that the common issues would require numerous individual inquiries such that the common issues would be overwhelmed by individual inquires. Rather, the Court found that establishing the defendant's billing practice during the class period would be a straightforward factual exercise and establishing deceptive representations would depend only on the written consumer contracts.  The Court did not certify all of the proposed common issues, however, holding that there was no basis in fact founding the allegations of spoliation.

  1. Preferable Procedure

Given the common issues, the Court found that a class proceeding would  be preferable to any other proceeding, noting especially that the small nature of the individual claims would make individual litigation unlikely.

  1. Appropriateness of the Representative Plaintiff

The Court found that Ms. Seidel was an appropriate representation plaintiff even though she was not a "consumer" within the meaning of the BPCPA for some or most of the class period. Indeed, the Court noted that a representative plaintiff need not be the best possible representative nor even be typical of the class and need not have a claim under every cause of action certified. Rather, the Court should consider whether the proposed representative plaintiff has "sufficient common interest with class members" and will vigorously and capably prosecute the interests of the class.

Notice of Appeal Filed

This decision seems to take a different approach than other cases considering class definitions in the context of consumer legislation. Unlike the other cases considering the same issues, the Court in Seidel held that a proposed class definition that is overly broad is not necessarily fatal to certification. In this case, unlike Ileman v. Rogers Communications Inc., 2014 BCSC 1002 and Jiang, the individual inquiry into whether the class member was a "consumer" did not make the definition unworkable.

Telus has filed a Notice of Appeal, which we hope will resolve the different approaches seen in the cases on this point.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.