Canada: Last Call For TELUS: Canada's Highest Court To Hear Appeal On Scope Of Class Action

Last Updated: April 20 2018
Article by Annie (Qurrat-ul-ain) Tayyab

The Supreme Court of Canada has agreed to hear an appeal from TELUS Communications Inc. ("TELUS") in a class action that alleges that TELUS overcharged customers by rounding up calls to the next minute without disclosing that practice. In Wellman v TELUS Communications Company, TELUS is arguing that the proposed class is too broad, and that TELUS' corporate or other customers who do not count as "consumers" under consumer protection legislation should have to arbitrate the issue due to arbitration clauses in their contracts with TELUS.

The Issues

In the class action, the plaintiff claims that TELUS overcharged customers by rounding up calls to the next minute without disclosing that it was doing so. The proposed class consists of approximately two million subscribers, 70% of whom are consumers who purchased plans for personal use and 30% of whom are non-consumers who purchased plans for business use. The action claims $500 million in damages and $20 million in punitive damages.

TELUS' contracts contain standard terms and conditions, including a mandatory arbitration clause.

At the same time, in Ontario, consumers are entitled to bring contractual disputes in front of a court according to s. 7(2) of the Consumer Protection Act, 2002 (the "Consumer Protection Act").

Since the action was commenced, TELUS has argued that the claims of business customers, i.e. non-consumer claims, are governed by the mandatory arbitration clause and therefore should be stayed. For its position, it relies on s. 7(5) of the Arbitration Act, 1991 (the "Arbitration Act"), which provides for a partial stay of parts of a court proceeding if an arbitration agreement deals with those parts of the action and those parts of the action can reasonably be separated from the action.

The motions judge refused to stay the non-consumer claims, relying on a previous Ontario Court of Appeal decision, Griffin v Dell Canada Inc ("Griffin"), for which the Supreme Court of Canada denied leave to appeal. In Griffin, a five-judge panel of the Ontario Court of Appeal dealt with the same issue in the context of Dell's standard agreement. The court decided that non-consumer claims could not be reasonably separated from consumer claims and therefore had to be dealt with together in the court proceeding.

The Ontario Court of Appeal Decision

TELUS appealed. At the Ontario Court of Appeal, TELUS argued that the Supreme Court of Canada's decision in Seidel v TELUS Communications Inc ("Seidel"), overtook the decision in Griffin, and according to Seidel, a partial stay should have been granted. Seidel involved a class action where the contract between the proposed plaintiffs and the defendant contained a mandatory arbitration clause. A majority of the Supreme Court of Canada concluded that, based on the combined effect of certain provisions of the B.C. legislation (in particular, ss. 3 and 172 of the Business Practices and Consumer Protection Act), the proposed class action could include consumers but not non-consumer plaintiffs, and that those non-consumer claims would have to be arbitrated.

The Ontario Court of Appeal held that Griffin is still applicable in Ontario. Griffin and Seidel are consistent in principle, but decided in different legislative contexts. Courts will generally give effect to arbitration clauses in contracts freely entered into by parties, even if the contracts are "contracts of adhesion", that is, standard form contracts. However, parties' freedom to arbitrate may be limited by legislation. In Seidel, the Supreme Court of Canada focused on determining legislative intent to decide which claims were required to proceed in court and which could be submitted to arbitration.

Differing Legislative Contexts

In Ontario, the Consumer Protection Act expressly provides that arbitration clauses in consumer contracts are unenforceable. Further, for domestic arbitrations, s. 7(5) of the Arbitration Act provides that if an action has been commenced and an arbitration agreement covers some, but not all, claims advanced in the action, the court may grant a partial stay, but only where it is reasonable to separate the matters dealt with in the arbitration agreement from the other matters advanced in the action. In other words, proceedings should be bifurcated if it is reasonable to grant a partial stay.

In B.C., the provisions are different. The consumer protection legislation provides for a civil cause of action in superior court, and prohibits parties from contracting out of statutory rights. The B.C. arbitration legislation has no equivalent to the discretionary provision in s. 7(5) of the Ontario Arbitration Act.

According to the Ontario Court of Appeal, the difference in the result between Griffin and Seidel is based on the choices made by the Ontario legislature.

Effect of Class Action Legislation

TELUS attempted to argue that the right to arbitrate is a substantive right that is not affected by the procedural rights created by class proceeding legislation. The Court of Appeal rejected this argument. The characterization of class proceedings as procedural does not affect how the Consumer Protection Act and the Arbitration Act interact.

In Ontario, it was the interaction of the Consumer Protection Act and the Arbitration Act which led to the conclusion that Griffin was still good law, and that the claims of consumers and non-consumers could continue together in front of a court.

Because class action legislation was not relevant to determining whether part of the proceeding should be stayed, the court clarified that the decision on that point should not be conflated with determining whether a class proceeding would be the preferable procedure for a proposed class action. Although sometimes judges may consider the issue of a partial stay while deciding whether a class proceeding is the preferable procedure for a particular claim, the two analyses are distinct.

Appeal to the Supreme Court of Canada

At the Supreme Court of Canada, TELUS picked up on Blair J.A.'s concurring decision at the Court of Appeal. In his decision, Blair J.A. agreed with the majority in the result, but on a more restricted basis. According to him, Griffin is binding and dispositive. However, he raised a couple of reasons why Griffin may not have been correctly decided.

First, Blair J.A. wondered whether litigants should be able to sidestep substantive and statutory impediments to proceeding in court by simply adding consumer claims to non-consumer claims and wrapping them up in the cloak of a class proceeding. This is something that TELUS brought up in its leave to appeal.

TELUS is also arguing that the Ontario Court of Appeal's decision leads to inconsistent results across the country. According to TELUS, the effect of Griffin is that, in Ontario, the enforceability of arbitration clauses will depend on the form of the action in which the claim is brought.

The Supreme Court of Canada may also address Blair J.A.'s other, more specific, criticism of Griffin. In his concurring reasons at the Court of Appeal, Blair J.A. noted that s. 7(5) of the Arbitration Act refers to "other matters" that may be allowed to continue in court (rather than being arbitrated), but it is unclear whether those "other matters" can be matters arising between different parties and containing arbitration clauses that are otherwise valid and enforceable. Perhaps "other matters" refers to matters arising between the same contracting parties but that are not covered by the arbitration agreement between those specific parties.

It remains to be seen whether the Supreme Court of Canada will favour consistency across the country, or if it will prefer the approach of the Ontario Court of Appeal based on the specific intricacies of the Ontario legislation. The result will have an impact on many standard form contracts used in a variety of industries, and may lead to new strategic considerations in class actions.

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.

Annie (Qurrat-ul-ain) Tayyab
Similar Articles
Relevancy Powered by MondaqAI
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
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
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

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 or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq 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 of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions