Important reasons for judgement were released this week by the Supreme Court of Canada giving a robust interpretation to British Columbia’s Business Practices and Consumer Protection Act (the “BPCPA”).
In this week’s case (Seidel v. Telus Comminications Inc.) the Plaintiff was a customer with Telus. Her contract with Telus purported to strip her right to sue if she had a dispute with the company and instead restricted her to “private, confidential and binding arbitration“. In addition to this the contract purported to waive “any right (she) may have to commence or participate in any class action against Telus“.
The Plaintiff alleged that Telus engaged in deceptive billing practices. She launched a lawsuit and intended to make it a class action. She sued under s. 171 and 172 the BPCPA which in gave her the right to “bring an action in the Supreme Court” for damages and other relief in the face of “unconscionable acts or practices“. Section 3 of the BPCPA states that “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 is expressly permitted by this Act.”
Telus relied on the waiver and argued that if it’s customers had complaints they had to participate in mediation or arbitration but could not sue nor participate in a Class Action. In 5-4 split the Supreme Court of Canada disagreed and held that the BPCPA was paramount and that her court action “must be allowed“. The Court went further and allowed the Plaintiff to seek to certify the lawsuit as a class action holding that the class action waiver was part and parcel of the clause which violated section 3 of the BPCPA. In striking down the waiver the Canadian high court provided the following useful reasons:
 …. My opinion is that to the extent Ms. Seidel’s claim in the Supreme Court invokes s. 172 remedies in respect of “rights, benefits or protections” conferred by the BPCPA, her court action must be allowed to proceed notwithstanding the mediation/arbitration clause. This includes her claims for declaratory and injunctive relief and, if granted, ancillary relief in the form of restoration to consumers of any money acquired by TELUS in contravention of the BPCPA.
 The reason for this conclusion is simple. Section 172 provides a mandate for consumer activists or others, whether or not they are personally “affected” in any way by any “consumer transaction”. Section 172 contemplates such a person “bringing the action”. The action is specified to be brought “in Supreme Court”. The clear intention of the legislature is to supplement and multiply the efforts of the Director under theBPCPA to implement province-wide standards of fair consumer practices by enlisting the efforts of a whole host of self-appointed private enforcers. In an era of tight government budgets and increasingly sophisticated supplier contracts, this is understandable legislative policy. An action in the Supreme Court will generate a measure of notoriety and, where successful, public denunciation, neither of which would be achieved to nearly the same extent by “private, confidential and binding arbitration”….
 ….from the perspective of the BPCPA, “private, confidential and binding arbitration” will almost certainly inhibit rather than promote wide publicity (and thus deterrence) of deceptive and/or unconscionable commercial conduct. It is clearly open to a legislature to utilize private consumers as effective enforcement partners operating independently of the formal enforcement bureaucracy and to conclude that the most effective form is not a “private and confidential” alternative dispute resolution behind closed doors, but very public and well-publicized proceedings in a court of law…
 As to statutory purpose, the BPCPA is all about consumer protection. As such, its terms should be interpreted generously in favour of consumers: Smith v. Co-operators General Insurance Co., 2002 SCC 30,  2 S.C.R. 129, and ACS Public Sector Solutions Inc. v. Courthouse Technologies Ltd., 2005 BCCA 605, 48 B.C.L.R. (4th) 328. The policy objectives of s. 172 would not be well served by low-profile, private and confidential arbitrations where consumers of a particular product may have little opportunity to connect with other consumers who may share their experience and complaints and seek vindication through a well-publicized court action…
 In summary, s. 172 offer remedies different in scope and quality from those available from an arbitrator and constitutes a legislative override of the parties’ freedom to choose arbitration. Unlike Quebec and Ontario, which have decided to ban arbitration of consumer claims altogether, or Alberta, which subjects consumer arbitration clauses to ministerial approval, the B.C. legislature sought to ensure only that certain claims proceed to the court system, leaving others to be resolved according to the agreement of the parties. It is incumbent on the courts to give effect to that legislative choice, in my view.