Looking to Canada to provide perspective on mass and class arbitration can provide unique insights for Europeans who may otherwise assume that the US model is representative of the North American approach to arbitration. 1 Indeed, Canada does not have any equivalent of the Federal Arbitration Act2 that has been in force in the United States for close to a century and that has had a significant unifying impact on the regulation of arbitration in that country. Instead, arbitration in Canada is governed by provincial law, allowing for diverse responses to challenges posed by arbitration. The only external constraint on provincial power rests in the overriding effect of international obligations flowing from the New York Convention, 3 ratified by Canada in 1986. While the Supreme Court of Canada has been instrumental in supporting arbitration in the country, often following judicial trends from south of the border, its jurisprudence can be, and has been, overridden by divergent legislative policies of individual provinces.

While the topic for this paper concerns consolidation in arbitration, I cannot proceed without a few words regarding arbitration and consolidation of claims generally. I will thus provide a brief overview of the legislative context in Canada regarding arbitration and consolidation of claims before turning to the critical issue of mass and class arbitration.

1. THE LEGISLATIVE FRAMEWORK FOR ARBITRATION IN CANADA

The most significant difference between Canada and the United States when it comes to arbitration is the absence of an equivalent in Canada to the Federal Arbitration Act. Indeed, there is no nationally applicable federal law of arbitration in Canada and provinces essentially retain legislative competence over arbitration. 4 Still the framework for arbitration remains largely uniform across the country, given each province’s agreement to implement the New York Convention and to follow the UNCITRAL Model Law. 5 Nevertheless, absent a pre-emptive federal power over arbitration, provincial legislatures retain significant autonomy to define arbitrability or to adopt other limitations to arbitration and neither the federal Parliament nor the Supreme Court have any power to decide otherwise.

For the longest time, provincial legislatures did not intervene to modify the liberal regime for arbitration in place since Canada’s accession to the New York Convention. In so doing, they were in sync with the Canadian Supreme Court who, when called upon to interpret arbitration legislation, adopted a pro-arbitration stance. This included most famously the recognition that claims based on regulatory law were not outside the purview of arbitration, in a manner analogous to the US Supreme Court decision in Mitsubishi v Soler. 6

In the landmark judgment Les Éditions Chouette v Desputeaux,7 the Supreme Court of Canada held that claims involving a decision in respect of copyright could be subject to arbitration. In so doing, it refused to apply a statutory provision in the Civil Code of Quebec that excludes certain matters from arbitration, namely "status and capacity of persons, family matters or other matters of public order." 8 Favouring an expansive role for private consensual arbitration, the Supreme Court focussed on the narrow scope of the notion of "public order" as exemplified in its use as an exception to the recognition of arbitral awards. This strict interpretation of "public order" as applied to arbitrability was reinforced in a subsequent case concerning the arbitration of consumer claims in which the Supreme Court of Canada can again be seen to follow the US Supreme Court’s lead.

This occurred in Dell Computer Corp. v Union des consommateurs, 9 where the Supreme Court was forced to address the potential clash of policies between arbitration and class actions. The case involved a consumer claim against Dell. The company was seeking to avoid judicial proceedings by invoking the arbitration clause contained in the online contract concluded with the consumer. The very existence of this clause is attributable to another development in US arbitration law and practice that migrated north: the inclusion of pre-dispute mandatory arbitration clauses in consumer contracts. 10 While the US jurisprudence validating these clauses is directly linked to the text of the Federal Arbitration Act, 11 the Supreme Court of Canada arrived at the same result despite the absence of an equivalent statutory mandate. Instead, the Supreme Court of Canada relied on its own general pro-arbitration jurisprudence as well as legislative silence regarding any guaranteed access to courts for consumers. 12 In a companion case, the Supreme Court also held that any argument based on unconscionability was a question for the arbitrator and thus could not be invoked before a court to avoid the reference to arbitration. 13

The arrival of pre-dispute mandatory arbitration clauses in consumer contracts led some Canadian provinces to reconsider their liberal approach to arbitration. 14 Departing from the Supreme Court’s view that arbitration of consumer claims is not problematic, provincial legislatures took advantage of their unfettered constitutional power to legislate. Three provinces currently prohibit pre-dispute mandatory arbitration clauses in contracts that fall within the purview of their consumer protection legislation while a fourth subjects such clauses to governmental approval. 15 As a result, consumers in Quebec, Ontario, Saskatchewan and Alberta, (representing over 70% of Canada’s population) have a statutory right of access to courts, including to class actions, notwithstanding the inclusion of an arbitration clause or a class action waiver in their contract.

Even outside those provinces, recent decisions may suggest a softening of the pro-arbitration stance. In Seidel v Telus16 , the Supreme Court of Canada heard a consumer complaint against a cell phone company regarding airtime billing. 17 The defendant sought to avoid the judicial class proceedings in British-Columbia by invoking the arbitration clause contained in the service contract. Given the Court’s decision in Dell Computer, it seemed likely that the defendant would be successful, barring some distinct statutory wording to the contrary that would distinguish the two cases. In fact, the defendant was largely successful since the Court referred most of the plaintiff’s claims to arbitration in a few sentences. 18 The Court did refuse the reference to arbitration in reference to the specific claim for injunctive relief provided for by one section of the BC consumer protection statute. It did so largely on the view that the remedy being sought was in pursuit of a public interest objective, and that the judicial forum was the only appropriate one to grant relief of that nature. 19 Still, even on this narrow point, the Court’s reasoning in Seidel is difficult to reconcile with the decisions in Desputeaux and Dell Computer, based as it is on statutory interpretation that was rejected in those earlier cases. 20 (It is worth noting that it has taken five years for the claim that was not sent to arbitration to be certified. 21)

The Ontario Court of Appeal has even expressed scepticism with regard to arbitration clauses outside the consumer context. In Griffin v Dell Canada, 22 the Court refused to send a group of non-consumer purchasers to arbitration, questioning the defendant’s motivation in invoking the arbitration clause, which the Court described as "an attempt to exploit the inefficiency of arbitrating individual claims" and essentially immunize itself from any potential liability. 23 An appellate court in Manitoba relied on Seidel to refuse to send a consumer to arbitration, even for those claims that were not based on statute, arguing that it was more efficient for all of the claims to be resolved in a single proceeding. 24 The Supreme Court refused leave to appeal in both of these cases, thus choosing not to intervene to resolve a growing inconsistency in the interpretation of its jurisprudence by provincial courts. These examples suggest that given the option, some courts in Canada, including its highest court, may give precedence to policies other than arbitration, even absent clear legislative language to that effect.

The resistance to mandatory arbitration is directly related to the policy favouring access to courts by way of class actions. Indeed, the Canadian cases involving challenges to arbitration almost invariably involve a defendant seeking to avoid certification of a class action. It is therefore useful to briefly review the law concerning the aggregation of claims in Canada before turning to the issue of consolidation in arbitration.

2. OVERVIEW OF MASS/CLASS CLAIMS IN CANADA

As in the United States, class actions in commercial matters are an important procedural vehicle for relief in mass claims in Canada. 25 Similar to the situation with arbitration, class action legislation arrived much later in Canada than in the United States and has been widely adopted only in the last two decades. 26 Again like arbitration, legislative competence vests with provincial legislators and there is no uniform regime that is applicable across the country. Still, the basic approach in all provinces is very similar, with few substantive variations of any great import. 27 Another feature of class actions in Canada is the absence of a general requirement that common issues predominate over individual issues. 28 As a result, mass tort claims routinely proceed to court on a class action basis even if individual damages assessments will have to take place at a separate stage. 29

Mass and class claims face challenges in Canada because of its particular court structure and the absence of a multi-district consolidation system to deal with interprovincial or national classes. In terms of the court structure, Canada has no equivalent to the US Federal Court system. 30 Instead, most claims proceed through the various provincial courts according to provincial rules of civil procedure including provincial statutes governing class proceedings. 31 The Supreme Court of Canada can grant leave to hear cases on any matter coming from the appellate court of a province — as such, it can render decisions on procedural or substantive issues, of private or public law. The binding nature of any judgment may be limited to the province from which the appeal arose if it involves a question of provincial law. On the other hand, if that interpretation involves general principles, such as whether arbitration should pre-empt class actions in the absence of legislative text to the contrary, it will be effective across the country. 32 In addition to, or perhaps because of, the absence of a court structure allowing for multi-jurisdiction actions, Canada also lacks any equivalent to the US Judicial Panel on Multidistrict Litigation.

The effect of these separate and autonomous provincial courts, intersecting only at the level of the Supreme Court, is often a complex web of competing parallel or overlapping class actions. 33 This is obviously inefficient and is the source of wasteful litigation as courts in different provinces struggle to deal with the situation. 34 The Supreme Court of Canada has refused to address the problem when given the opportunity to do so. In Canada Post v Lépine, the Court placed responsibility squarely on the provincial legislatures: "More effective methods for managing jurisdictional disputes should be established in the spirit of mutual comity that is required between the courts of different provinces in the Canadian legal space. It is not this Court’s role to define the necessary solutions." 35

Despite this admonition, there has been no attempt to negotiate a political agreement between provincial legislatures regarding multijurisdictional class actions. The Uniform Law Conference of Canada did put forward a suggested amendment to its model class proceedings statute for adoption by provincial legislatures. 36 This amendment made use of the doctrine of forum non conveniens as a tool allowing courts to use their discretion to stay class proceedings in favour of a court in another province, based on a set of listed criteria. This approach has not been very successful, however, attracting only two ratifications since its adoption in 2006. 37

More recently, in 2011, a judicial protocol to assist with the management of multijurisdictional class actions was proposed by the Canadian Bar Association. 38 The protocol is meant to harness existing court discretion in the management of class proceedings and therefore not involve any legislative amendments. The protocol contemplates two measures. First, a Notification List of counsel involved in identical or similar actions and second, coordination of settlements through Multijurisdictional Class Settlement Approval Orders. The first measure is connected to another CBA initiative, the Canadian Bar Association Class Action Database established in 2007. Endorsed by most courts in Canada, the database is "designed to give lawyers and the public easy access to court documents submitted with regard to class action lawsuits currently underway across the country." The second measure is directed at allowing and coordinating joint settlement hearings by courts in different provinces, as well as with courts. 39 This non-legislative approach has proven to be more attractive, has been adopted by courts in several provinces, 40 and appears to have been successful in those proceedings, admittedly few in number, that have relied upon it. 41

When the cross-border dimension involves the United States, the picture is slightly different. Admittedly, there are few examples of mass or class claims proceeding in Canada purporting to include a North American class including both Canadian and American members. One well-known example was a securities class action against IMAX that went forward in Ontario prior to a settlement being reached in a parallel claim brought in the US. The Ontario court eventually agreed to exclude any American members of the Canadian action, holding that their claims were best dealt with under the US settlement. 42 In related proceedings, the court had considered the ABA/CBA Protocol on Court-to-Court communications in Canada-US Cross-Border Class Actions, but held that it did not address the issue before it, therefore identifying some shortcomings in that approach. 43 In an earlier case, parallel actions in six Canadian provinces and in the US led to an eventual settlement proposal in the US action that purported to extend to the Canadian class members. On a joint motion, the parties sought to discontinue all of the Canadian actions, which was granted on the basis that the US settlement was advantageous to the Canadian class members. 44 These examples indicate that there is no single way to deal with crossborder class actions, whether to maintain separate actions or to proceed by way of a global action or settlement. On the other hand, they do demonstrate that courts are able to deal with overlapping or parallel cross-border actions in a reasonable and efficient manner, even without any prescribed framework imposed by statute or rules of court.

Still, these two examples may not be typical or be replicated in the future. Apparently up to 40% of all class claims brought in Canada have a crossborder dimension with the US. 45 This refers of course to the common existence of parallel claims in US and Canadian courts against the same defendant regarding the same claim. But it also refers to increasing collaboration between Canadian and US counsel, particularly on the plaintiff side. While the original claim is most often initiated in the US, the fact that Canadian class action criteria is less demanding than its US counterpart might reverse that trend for certain types of mass claims that are less likely to be certified in American courts. Given this context, it is at least arguable that a more predictable and potentially efficient means of addressing mass and class claims might be through class arbitration, to which I now turn.

3. CONSOLIDATION IN ARBITRATION

Whether the challenges associated with mass and class claims could be resolved by class arbitration is a topic that has received little attention in Canada. Few lawyers or judges seem attuned to the opportunities class arbitration may provide, particularly to avoid the vexing problems associated with multijurisdictional class actions in Canada or in the Canada- US context. 46 What then explains the absence of any move in that direction in Canada? Is there a statutory bar to it? Judicial reluctance? Practical impediments? These three possible explanations will be examined in turn.

Perhaps not surprisingly, Canadian arbitration statutes, like American ones, are silent with respect to the question of consolidation. 47 For consolidation to be admitted immediately, therefore, it would have to be consistent with general principles of arbitration and be feasible under existing arbitration rules, whether these are drawn from state procedural law or private institutional arbitration service providers. In terms of general principles, since private arbitration is based on consent, claims based in contract are the likeliest candidates for class arbitration. 48

One significant challenge in Canada regarding consolidation of contract claims in arbitration is the presence of statutory prohibitions against pre-dispute mandatory arbitration clauses in consumer contracts in a growing number of provinces. Where merchants are denied the ability to impose arbitration as a method of dispute resolution, consumers in those provinces may be limited to judicial methods of claims aggregation. In other words, in those provinces, consumers might only be able to pursue a consolidated claim in court. The rationale for statutory intervention is based on access to justice objectives and the concern that merchants are seeking to immunize themselves from non-economically viable claims, thereby potentially avoiding obligations imposed by mandatory state consumer protection law. If class arbitration can be structured to provide an alternative means of achieving these legislative objectives, the current prohibition could be subject to reconsideration. Indeed, no provincial government has declared consumer claims to be inarbitrable; rather they have sought to guarantee access to a consolidation mechanism. If class arbitration provides such a mechanism then limiting consumers to judicial class actions becomes a potential obstacle to access to justice and therefore difficult to justify. 49

Beyond the realm of consumer contracts, however, there is no statutory priority given to judicial aggregation mechanisms. Given the pervasiveness of standard form contracts even in the B2B context, the potential for the development of class arbitration in Canada remains. Again, the issue of consent will be central and the challenge will be interpreting the arbitration clause that is silent as regards consolidation. The US Supreme Court has been inconsistent on this question and it is not readily evident where Canadian courts would go. It is worth repeating that the US jurisprudence is deeply rooted in the Federal Arbitration Act and its very strict exceptions to the enforcement of arbitration clauses. Without any equivalent statutory language in Canada, its courts could follow a different path. Whether that would support consolidation following Green Tree Financial v Bazzle,50 , reject it following AT&T v Concepcion, 51 or leave it to the arbitrator to decide following American Express v Italian Colors Restaurant,52 is difficult to predict although some insight is available from the few existing relevant cases.

On more than one occasion, class counsel has indicated to a court in Canada that it would be prepared to participate in class arbitration. 53 In one of those cases, the judge appeared to see no statutory bar to such a possibility, stating that it would be up to the arbitrator to determine whether consolidation was appropriate. 54 In another case, the court did not object to the idea of class arbitration but thought it needed legislative support. 55 Finally, in a third case, the court used the defendant’s rejection of class arbitration to support its refusal to refer the parties to arbitration:

I would have found Dell’s position much more persuasive had Dell been prepared to submit to an arbitration that would allow for the efficient adjudication of the claims on a group or class basis. However, in oral argument, Dell’s counsel confirmed that his client … would resist any attempt before an arbitrator to join together the claims of a group or class of consumers. In my view, this provides further evidence, if further evidence is required, that Dell does not genuinely seek to have the claims advanced against it determined by way of arbitration. Dell is simply seeking to exploit the inefficiency of arbitrating individual claims. 56

It is worth noting that in that case the arbitration clause relied on by the defendant expressly excluded consolidation. This decision, therefore, stands in sharp contrast to the US Supreme Court’s own in AT&T v Concepcion where the exclusion of consolidation was not sufficient to strike down the arbitration clause as unconscionable. This marks a significant difference between Canada and the US after AT&T v Concepcion. If consolidation waivers can be successfully challenged in Canada, defendants may reconsider their desire to avoid class arbitration if the alternative is a class action.

The Supreme Court of Canada has not dealt with the issue of class arbitration, though it has referred to the private and autonomous nature of arbitration on several occasions, suggesting that it may not be a forum appropriate for the type of oversight and publicity necessary for an opt-out consolidation mechanism. 57 On the other hand, the Supreme Court has held that any argument that an arbitration clause is invalid or unenforceable on grounds of unconscionability is usually to be directed in the first instance to the arbitrator rather than the courts. 58 If this view were to prevail even in the face of a consolidation waiver in the arbitration clause, it might well open the door for class arbitration since the arbitrator would be well placed to decide whether the dispute could be resolved on that basis, assuming that the waiver of consolidation was deemed invalid without impugning the validity of the reference to arbitration. For such a result to occur, however, the arbitrator would have to consider the feasibility of a class arbitration procedure, a separate question to which I now turn.

Class arbitration raises numerous practical questions given the procedural complexities involved particularly with an opt-out system. 59 The notice requirement challenges the possibility of confidentiality, usually expected with arbitration. Scrutiny of the settlement and of legal fees to ensure fairness to absent class members and to control for the risk of collusion between legal counsel also goes beyond the typical role of arbitrators. Finally, the binding nature of the eventual award, even on absent class members, requires an expansive interpretation of consent. All of these issues are addressed in class action legislation including the conferral of a special supervisory role on courts. 60 Arbitration law (whether in Canada or the US), silent regarding consolidation, obviously does not provide equivalent procedural safeguards. Given this regulatory gap, the US experience with the class arbitration mechanism offers many answers that should be readily transferable to Canada.

The protocols developed by US arbitration institutions provide ready-made and tested templates for the administration of class arbitrations. 61 Because of the significant similarity between US and Canadian law on arbitration and on class actions, one could even imagine a wholesale import with only a few modifications to conform to local exigencies. Despite this promise, no Canadian arbitral institution appears to offer any consolidation procedures nor seems to be considering them. 62 Absent some local demand for these specialized services, they may not be offered, thus delaying the potential for class arbitration in Canada.

Two factors might raise the profile of class arbitration in Canada and lead to a change. First, with the still large number of pending class arbitrations in the US, there is the potential for eventual recognition proceedings in Canada. Given existing Canadian law on the recognition of foreign arbitral awards, this should not be a problem. First, Canada’s adhesion to the 1958 New York Convention means that it is bound to recognize foreign arbitral awards with very limited exceptions. 63 Second, courts in Canada have admitted that US class action settlements could be binding against Canadian class members. 64 Since the procedural safeguards provided under, for example, the AAA class arbitration procedure, are analogous to those guaranteed by class action legislation in the US and in Canada, there is every reason to believe that Canadian courts would be prepared to recognize an arbitral award that conformed to those safeguards.

A second factor that may lead to change resides with Canadian practitioners themselves. Class arbitration may be attractive to these lawyers because of its jurisdictional advantages in cross-border cases. Indeed, as private arbitration is non-territorial or anational, 65 none of the constitutional obstacles to the jurisdiction of provincial courts over nonresident class members arise in the arbitration context. In the non-consumer context, this provides a significant incentive to plaintiff counsel who need only institute one arbitration process instead of multiple parallel judicial actions across Canada. Moreover, that single proceeding option also avoids the risk of competing parallel or even overlapping judicial actions. With regard to claims arising from consumer contracts, this opportunity is diminished by the statutory monopoly granted to courts for consolidated proceedings in certain provinces but it is not excluded for the remaining provinces. There are thus market incentives to pursuing the class arbitration option and arbitral institutions should be alert to this potential and offer the necessary procedural rules to enable it.

In sum, regardless of the current lack of evidence indicating the emergence of class arbitration in Canada, history suggests that innovative procedural mechanisms to deal with mass and class claims that are developed in the US have a tendency to migrate northward. With broadly similar rules governing arbitration and class actions in the two countries, there is no reason to believe that class arbitration faces any insurmountable obstacle in Canada. In fact, without the strictures of the US Federal Arbitration Act and its vigorous application by the US Supreme Court, one might say that Canada is more fertile ground for consolidation in arbitration. While the lack of uniformity in provincial treatment of mandatory arbitration in certain fields may be seen as a challenge, this same diversity is what may allow class arbitration to be tested in some parts of the country. Should it prove to be successful, this could lead to changes in legislative policy elsewhere in pursuit of alternatives avenues for access to justice. The availability of specialized arbitration rules is a critical element and if no Canadian institution is prepared to design its own, parties may well refer to existing American models. None of this is likely to happen overnight, of course. But unless the alleged death of American class arbitration renders it unfit for export, I expect that class arbitration will make an appearance somewhere in Canada within the next decade.

1
I use "North America" as a shorthand for Canada and the US and as a reflection of the common law tradition largely prevalent in both countries, a fact that distinguishes Mexico within that region.

2
Federal Arbitration Act, 9 USC § 1 (1925).

3
Convention on the Recognition and Enforcement of Foreign Arbitral Awards, Convention on the Recognition and Enforcement of Foreign Arbitral Awards, 10 June 1958, 21 UST 2518, 330 UNTS 3 (entered into force 10 August 1986, accession by Canada 12 May 1986) [the New York Convention].

4
John E.C. Brierley, "Canadian acceptance of international commercial arbitration" Maine Law Review 40 (1988) 287 at 290. However, the federal Commercial Arbitration Act, RSC 1985, c 17, also modelled on the UNICTRAL Model Law applies to limited matters of federal jurisdiction, including suits against the federal Crown and its Crown corporations and in maritime or admiralty matters. See also Strong, SI, "Resolving Mass Legal Disputes through Class Arbitration: The United States and Canada Compared" North Carolina Journal of International Law & Commercial Regulation 37, (2012), 921 at 932-933.

5
Gerald W Ghikas, "The UNICTRAL Model Law in Canada" in Association for International Arbitration ed, The UNICTRAL Model Law on International Commercial Arbitration: 25 years (Antwerp: Maklu, 2010) at 14-15.

6
Mitsubishi Motors Corp. v Soler Chrysler-Plymouth, Inc., 473 U.S. 614 (1985).

7
[2003] 1 SCR 178.

8
Article 2639 C.C.Q.

9
2007 SCC 34 [Dell Computer].

10
Jean R Sternlight, "Mandatory Binding Arbitration Clauses Prevent Consumers from Presenting Procedurally Difficult Claims" Southwestern University Law Review 42, (2012-2013), 87 at 88-89. See also Theodore Eisenberg, Geoffrey P Miller and Emily Sherwin, "Arbitration’s Summer Soldiers: An Empirical Study of Arbitration Clauses in Consumer and Nonconsumer Contracts" University of Michigan Journal of Law Reform 41 (2008) 871 at 882-85; Geneviève Saumier, "Consumer Arbitration in the Evolving Canadian Landscape" Penn State Law Review 113 (2009) 1203.

11
These clauses were upheld by the U.S. Supreme Court in cases as early as 1995 in Allied-Bruce Terminix v Dobson, 513 U.S. 265 (1995) and as recently as last December in DirecTV v Imburgia, 577 U.S. __ (2015).

12
See Strong, SI, "Class Arbitration Outside the United States: Reading the Tea Leaves", in Bernard Hanotiau and Eric A Schwartz, eds, Multiparty Arbitration: Dossier VII of the ICC Institute of World Business Law (ICC Publication No 701, 2010) at 5.

13
Rogers Wireless v Muroff, [2007] 2 SCR 921 at paras 15-16. See case comment by Frédéric Bachand and Pierre Bienvenu, "L’arret Dell et le contrôle de la compétence arbitrale au stade du renvoi a l’arbitrage" 37,(2007), Revue générale de droit 477.

14
The Quebec legislation was enacted during the Dell Computer litigation but the Supreme Court held that it did not retroactively apply to the contracts at issue in that case.

15
Quebec Consumer Protection Act, RSQ c. P-40.1, art. 11.1; Ontario Consumer Protection Act, S.O. 2002, chap. 30, s. 7(2); Saskatchewan Consumer Protection and Business Practices Act, SS 2014, c. C-30.2, s. 101; Alberta Fair Trading Act, RSA 2000, c. F-2, s.16. There is no available record of requests by merchants to have their arbitration clauses approved under this statute. In Young c. National Money Mart Company, 2013 ABCA 264, the consumer proved that the merchant had submitted its clause but that it had not been approved. Leave to appeal to the Supreme Court was dismissed.

16
Seidel v Telus Communications, [2011] 1 SCR 531 [Seidel].

17
For a detailed discussion of the case see Shelley McGill, "Consumer Arbitration after Seidel v Telus" Candian Business Law Journal 51, (2011), 187.

18
Ibid. at para 5 : [T]o the extent Ms. Seidel’s complaints shelter under s. 172 of the BPCPA (and only to that extent), they cannot be waived by an arbitration clause and her court action may continue, in my opinion. As to her alternative complaints, whether under other sections of the BPCPA, the now repealed Trade Practice Act, or at common law, the Telus arbitration clause is valid and enforceable." (references omitted). This is a point that most commentators appears to neglect.

19
Ibid. See summary of reasons at para. 40 of the majority decision. There was an unusually sharp dissent penned by the judges who had authored the reasons in Desputeaux and Dell Computer.

20
Frédéric Bachand, "The Supreme Court of Canada: Pro-Arbitration No More", online: Kluwer Arbitration Blog <http://kluwerarbitrationblog.com/ blog/2011/03/31/the-supreme-court-of-canada-pro-arbitration-no-more/>.

21
Seidel v Telus Communications Inc., 2016 BCSC 114.

22
2010 ONCA 29 (Ont. C.A.). Leave to appeal to the Supreme Court dismissed. Griffin was recently followed in Wellman and Corless v TELUS and Bell, 2014 ONSC 3318.

23
Ibid. at para. 60. The Quebec Court of Appeal did not follow this line of reasoning in similar circumstances, sending the corporate clients to individual arbitration despite the fact that consumers were entitled to proceed by way of a class action: Telus Mobilité c. Comtois, 2012 QCCA 170.

24
Briones v National Money Mart Company et al., 2014 MBCA 57 (Man. C.A.); leave to appeal to the Supreme Court of Canada dismissed.

25
Michael Eizenga, Danny H Assaf, and Emrys Davis, "Antitrust Class Actions: A Tale of Two Countries" Antitrust 25, (2010-2011), 83 at 83-84; contrast the Canadian position in Pro-Sys Consultants Ltd v Microsoft Corporation, 2013 SCC 57 (CanLII) at paras 99-105 with the US position in Comcast Corp v Behrends, 569 US -, 133 S Ct 1426 (2013), Scalia J for the Court at 6-7.

26
It was introduced first in Quebec in 1976, then in Ontario in 1992, in B.-C. in 1996 and only in this century in the remaining provinces, save one. McCarthy Tétrault, Defending Class Actions in Canada (Toronto: CCH, 2011) at 4-5

27
Ibid at 6-12.

28
Ibid at 13-14 and 177-178. The criteria is not mentioned in most statutes while it is specifically excluded in the B.C. version (Class Proceedings Act, RSBC 1996, c 50 at s 4(1)(c)).

29
Admittedly most certified class actions are settled without a trial, as is the case in the US. See Jamie Cassels and Craig Jones, The Law of Large-Scale Claims: Product Liability, Mass Torts, and Complex Litigations in Canada, (Toronto: Irwin Law, 2005) at 340-341; Catherine Piché, "A Critical Reappraisal of Class Action Settlement Procedure in Search of a New Standard of Fairness" Revue de droit d’Ottawa 41:1, (2010), 112.

30
The Canadian Federal Court is a court of limited statutory jurisdiction that hears claims against the Crown (though not exclusively) or in particular matters of federal law such as maritime, immigration, income tax, and intellectual property. See : Peter W Hogg, "Federalism and the Jurisdiction of Canadian Courts" University of New Brunswick Law Journal 30, (1981), 9 at 17.

31
The Supreme Court did hold, in Western Canadian Shopping Centres v Dutton, 2001 SCC 46 (CanLII), that courts in Canada could devise a class proceeding mechanism even in the absence of specific statutory provisions — since then, however, every province save Prince-Edward-Island has adopted a class proceedings statute. See McCarthy Tétrault, supra note 26 at 5.

32
That is precisely what occurred with the Dell Computer decision, supra note 9 at paras 41-42. This is akin to the effect of the U.S. Supreme Court’s decision in AT&T v Concepcion that defined the allowed interface between State law doctrines of unconscionability and s. 2 of the Federal Arbitration Act while ostensibly deciding a California case. See Michael J Yelnosky, "Fully Federalizing the Federal Arbitration Act" Oregon Law Review 90, (2011-2012), 729.

33
Because most class actions are brought to provincial courts, there is a potential constitutional issue relating to a court’s ability to bind non-resident class members especially where the claim is against a foreign defendant and thus the jurisdiction of the court is established on the basis of a connection between the cause of action and the court seized of the action. Whether such multijurisdictional class actions are constitutional is debated in the literature but the Supreme Court has not yet addressed the issue. Compare Peter W. Hogg & S. Gordon McKee, "Are National Class Actions Constitutional?" (2010) 26 Nat’l J. Const. L. 79 and Janet Walker, "Are National Classes Constitutional? A Reply to Hogg and McKee" (2010) 48 Osgoode Hall L.J. 95.

34
Janet Walker, "Recognizing Multijurisdiction Class Action Judgments within Canada: Key Questions — Suggested Answers" Canadian Business Law Journal 46, (2008), 450 at 460.

35
2009 SCC 16 at para 57. See Geneviève Saumier, "Competing Class Actions across Canada: Still at the Starting Gate after Canada Post v Lépine?" Canadian Business Law Journal 48, (2009), 462.

36
Uniform Class Proceedings Act (amendment) 2006, online: Uniform Law Conference of Canada < http://www.ulcc.ca/images/stories/Uniform_Acts_ EN/Uniform_Class_Proceedings_Amendment_En.pdf>.

37
See s. 6.1 of Saskatchewan’s Class Actions Act, SS 2001 Chapter C-12.01as amended by SS 2007, ch. 6 and ss 5(6)-5(8) of Alberta’s Class Proceedings Act, SA 2003, ch. 16.5 as amended by SA 2010 c15 s5. See also the recent modifications to Quebec’s Code of Civil Procedure (s. 577) that entered into force this year.

38
Canadian Judicial Protocol for the Management of Multijurisdictional Class Actions, adopted 13 August 2011 (available at www.cba.org).

39
To that end, the CBA adopted the ABA’s Protocol on Court-to-Court Communications in Canada — U.S. Cross-Border Class Actions.

40
See for example 2013 Civil Practice Directive #3 of the Court of Queen’s Bench for Sakatchewan.

41
The settlement approval protocol was applied in Markus v Reebok, [2012] J.Q. no 7304 (Quebec S.C.), Honhon v Canada (A.G.), 2013 QCCS 2782, Eidoo v Infineon Technologies AG, 2013 ONSC 853, Mackie v Toshiba, 2013 ONSC 5665 and in the three parallel actions in Osmun v Cadbury Adams Canada Inc., 2012 ONSC 3837, Main v Cadbury Schweppes plc, 2012 BCSC 1062 and Roy v Cadbury Adams Canada inc., 2012 QCCS 1606; the general protocol was adopted as applicable to the action in St-Marseille v Procter & Gamble inc., [2012] J.Q. no 3384 (Quebec S.C.) and Option Consommateurs v Infineon Technologies, [2012] J.Q. no 17071 (Quebec S.C.); it was also referred to in Silver v Imax Corp, 2012 ONSC 1047 at paras 71-73 and in Lebrasseur v Hoffmann-La Roche, 2011 QCCS 5457.

42
Silver v Imax Corp., 2013 ONSC 1667 (CanLII) (leave to appeal denied in 2013 ONSC 6751). In January 2016, a settlement was approved. It provides for slightly higher recovery per shareholder than the US settlement. See Silver v Imax Corp., 2016 ONSC 403.

43
Silver v Imax Corp., 2012 ONSC 1047, at para. 70-71.

44
Wong v TJX Companies, 2008 CanLII 3421 (Ont. S.C.).

45
Jennifer Lewington, "Cross-border playbook" (26 November 2013), online: National magazine <http://www.nationalmagazine.ca/Articles/November/ Cross-border-playbook.aspx>

46
The literature is sparse and seems to be exclusively produced by practitioners: W.K. Winkler, "Class Proceedings and ADR: Synergies in a Civil Action" Advocate’s Society Journal (2001), 3; D. Bisson & S. Finn, "A Disputes Alternative to Alternative Dispute Resolution — A Discussion of Class-Wide Arbitration and its Relevance for Quebec Class Action Litigants and Practitioners" Canandian Bar Review 82, (2004), 309; B. Casey, "Class Action Arbitration Should be Available" (2006) 25(44) Lawyers’ Weekly 1; J.S. Leon, E.R. Hoaken & R. Huang, "Class Arbitration in Canada: The Legal and Business Case" Canadian Class Action Review 6, (2010), 383; M. Schafler & A. Pasalic, "Is Canada Ready for Class Arbitration?" (Paper presented at ADRIC 2013 — Gold Standard ADR, 25 October 2013), [unpublished].

47
Strong, SI, "Resolving Mass Legal Disputes through Class Arbitration: The United States and Canada Compared" North Carolina Journal of International Law & Commercial Regulation 37, (2012), 921 at 949-950.

48
However, as it is possible to agree to arbitration once a dispute has arisen, there is no necessary bar to class arbitration of non-contractual claims. In fact, it is not uncommon for mass claims to be resolved through a settlement which itself provides for arbitration to administer the funds to be distributed to individual claimants. Once these claimants are bound to the settlement terms, including the arbitration mechanism, it may be that certain types of claims or categories of claimants could be aggregated within the arbitral procedure. Admittedly, this is a different scenario from the one usually assumed when talking of class arbitration — the idea is usually to replicate within arbitration the opt-out class action mechanism.

49
See Leon et al, supra note 46 at 416. This was also put forward to the Supreme Court by the London Court of International Arbitration, who was granted intervener status in the Dell Computer case. The Supreme Court did not address the argument or the issue in its judgment. See Leon et al., ibid. at 397.

50
539 U.S. 444 (2003) [AT&T v Concepcion].

51
I mention AT&T v Concepcion here rather than Stolt-Nielsen v Animal Feeds, 130 S. Ct. 1758 (2010), because the former went even further, enforcing a "no consolidation" clause because, inter alia, it was not allowed under the FAA. See AT&T v Concepcion. It is not clear yet what impact this decision will have on class arbitration in the US. See J.R. Sternlight, "Tsunami: AT&T Mobility v Concepcion Impedes Access to Justice" Oregon Law Review 90, (2012), 703. For a different view see Strong, SI, "Does Class Arbitration ‘Change the Nature’ of Arbitration? Stolt-Neilsen, AT&T and a Return to First Principles" 17 Harvard Negotiation Law Review 20, (2012), 1.

52
133 S. Ct. 2304 (2013).

53
Kanitz v Rogers Cable Inc., (2002) 58 O.R. (3d) 299 (Ont. S.C.); Griffin v Dell Canada Inc, 2010 ONCA 29; MacKinnon v National Money Mart Co, 2009 BCCA 103. In all three cases the defendant refused the request.

54
Kanitz v Rogers Cable Inc., ibid. at para 55.

55
MacKinnon v National Money Mart Co, supra note 53 at para 33.

56
Griffin v Dell Canada Inc, supra note 22 at para. 60, per Sharpe J.A.

57
Seidel v TELUS Communications Inc, 2011 SCC 15 (CanLII), Binnie J for the majority at paras 3 and 7. See also Dell Computer Corp v Union des consommateurs, 2007 SCC 34 (CanLII), Bastarache and LeBel JJ in dissent at para 142.

58
Rogers Wireless v Muroff, supra note 13. This is on the assumption that the argument is one of fact or of "mixed fact and law." If the question were purely one of law, then the Supreme Court admitted that a court could decide it.

59
For a full discussion of the procedural issues in class arbitration, see Strong, SI, "From Class to Collective: The De-Americanization of Class Arbitration" Arbitration International 26, (2010), 493 at 509-523.

60
Canadian practitioners writing about class arbitration call for an expanded role for courts, which is not currently possible under existing arbitration law. See Leon et al., supra note 46 at 417; Schafler & Pasalic, supra note 46 at 18-19.

61
See for example the American Arbitration Association Supplementary Rules for Class Arbitrations (www.adr.org.).

62
For example, the recently updated rules of the ADR Institute of Canada, in force since December 2014, do not mention consolidation (see www.adric.ca). A discussion with the president of a leading arbitral institution in Canada yielded the explanation that "there is no demand for it." This raises the traditional chicken-and-egg query: perhaps there is no demand because there are no procedures?

63
Due process and public policy concerns in international class arbitrations are likely not enough to overcome the presumption in favour of the enforcement of awards under the New York Convention, especially in jurisdictions open to class actions in domestic matters: Strong, SI, "Enforcing Class Arbitration in the International Sphere: Due Process and Public Policy Concerns" Journal of International Law 30, (2008), 1 at 95-100.

64
Currie v McDonald’s Restaurants of Canada Ltd., [2005] 74 OR (3d) 321 (Ont. C.A.) (leave to appeal to S.C.C. denied); Silver v Imax Corp., [2011] O.J. No. 656 at para. 130 (leave to appeal to C.A. denied). For a comment on the Currie case see G. Saumier, "USA-Canada Class Actions: Trading in Procedural Fairness" Global Jurist Advances 5(2), (2005), 1.

65
This is agreed to in strong terms by both the majority and the dissent in the Dell Computer case.