Briones v. National Money Mart Co. et al., (2014) 306 Man.R.(2d) 129 (CA)

• Judge: Monnin, Beard and Mainella, JJ.A.
• Court: Court of Appeal (Manitoba)
• Case Date: January 10, 2014
• Jurisdiction: Manitoba
• Citations: (2014), 306 Man.R.(2d) 129 (CA);2014 MBCA 57

Briones v. Nat. Money Mart (2014), 306 Man.R.(2d) 129 (CA);

      604 W.A.C. 129

MLB headnote and full text

Temp. Cite: [2014] Man.R.(2d) TBEd. JN.012

Jenny Briones (née Bejarano) (plaintiff/respondent) v. National Money Mart Company (defendant/appellant) and Dollar Financial Group Inc. (defendant)

(AI 13-30-08027; 2014 MBCA 57)

Indexed As: Briones v. National Money Mart Co. et al.

Manitoba Court of Appeal

Monnin, Beard and Mainella, JJ.A.

June 5, 2014.

Summary:

Briones brought a class action proceeding, seeking to recover certain payday loan fees which she alleged were collected by Money Mart from her and other borrowers in Manitoba in violation of s. 347(1) of the Criminal Code. Money Mart moved for a stay of the proceeding on the basis that Briones' claims were subject to the mediation and/or arbitration provisions in the "Fast Cash Advance Agreements" used to provide the payday loans. The central issue was whether, as a matter of statutory interpretation, the Unconscionable Transactions Relief Act (UTRA) and the Consumer Protection Act limited the applicability of the arbitration clause.

The Manitoba Court of Queen's Bench, in a decision reported at 295 Man.R.(2d) 101, dismissed the motion. Money Mart appealed.

The Manitoba Court of Appeal dismissed the appeal. The Court agreed with the motion judge's conclusion that the Court of Queen's Bench had exclusive jurisdiction over actions under UTRA to the exclusion of arbitration, albeit, on a somewhat different basis. "[T]he subject-matter of the dispute, being an action under the UTRA, comes within s. 7(2)(c) of the Arbitration Act as one that is 'not capable of being the subject of arbitration under Manitoba law'. For this reason, the court may refuse to stay the court action in favour of arbitration."

Arbitration - Topic 5

General principles - Arbitration v. action - [See first Arbitration - Topic 2512 ].

Arbitration - Topic 2512

Stay of proceedings - Bar to stay - Action respecting validity of contract with arbitration clause - The issue in this case (whether a stay of the court action should be granted in favour of arbitration) raised questions about the statutory interpretation of the Unconscionable Transactions Relief Act (UTRA) in the context of an arbitration clause - The definition section provided as follows: "1. In this Act, ... 'court' means the Court of Queen's Bench" - Section 4 provided that "4. In addition to any right that a debtor may have under this or any other Act or otherwise in respect of money lent, he may apply for relief under this Act to a judge of the court." - The Manitoba Court of Appeal stated that "it is not possible in Manitoba to bring an action under the UTRA in other than the Court of Queen's Bench: there is no other level of court or court system that could have jurisdiction. The only other possible forum is that of arbitration. Thus, for the definition of 'court' in s. 1 and the words 'a judge of the court' in s. 4 to have meaning, they must be interpreted as giving exclusive jurisdiction to the Court of Queen's Bench to the exclusion of the only other possible forum. This is consistent with the well-known principle of statutory interpretation against tautology. ... The interpretation of s. 1 as an exclusive definition of the meaning of 'court' is assisted by the wording of s. 4 of the UTRA. ...  [T]hese words, together, constitute a clear statement of legislative intent as to the overriding jurisdiction of the Court of Queen's Bench, despite any contract to the contrary agreeing to settle disputes by arbitration." - See paragraphs 32 to 35.

Arbitration - Topic 2512

Stay of proceedings - Bar to stay - Action respecting validity of contract with arbitration clause - The plaintiff brought a class action proceeding, seeking to recover certain payday loan fees which she alleged were collected by Money Mart from her and other borrowers in Manitoba in violation of s. 347(1) of the Criminal Code - Money Mart moved for a stay of the proceeding on the basis that the claims were subject to the mediation and/or arbitration provisions in the "Fast Cash Advance Agreements" used to provide the payday loans - The central issue was whether, as a matter of statutory interpretation, the Unconscionable Transactions Relief Act (UTRA) and the Consumer Protection Act limited the applicability of the arbitration clause - The motions judge declined to order the stay - The Manitoba Court of Appeal dismissed Money Mart's appeal - The Court agreed with the motion judge's conclusion that the Court of Queen's Bench had exclusive jurisdiction over actions under the UTRA to the exclusion of arbitration, albeit, on a somewhat different basis - "[T]he subject-matter of the dispute, being an action under the UTRA, comes within s. 7(2)(c) of the Arbitration Act as one that is 'not capable of being the subject of arbitration under Manitoba law'. For this reason, the court may refuse to stay the court action in favour of arbitration." - See paragraph 36.

Arbitration - Topic 2512

Stay of proceedings - Bar to stay - Action respecting validity of contract with arbitration clause - The plaintiff brought a class action proceeding, seeking to recover certain payday loan fees which she alleged were collected by Money Mart from her and other borrowers in Manitoba in violation of s. 347(1) of the Criminal Code - Money Mart moved for a stay of the proceeding on the basis that the claims were subject to the mediation and/or arbitration provisions in the "Fast Cash Advance Agreements" used to provide the payday loans - The central issue was whether, as a matter of statutory interpretation, the Unconscionable Transactions Relief Act and the Consumer Protection Act limited the applicability of the arbitration clause - The motion judge declined to order a stay with respect to that portion of the claim that was clearly subject to arbitration or mediation - The Manitoba Court of Appeal, in dismissing the appeal, stated that "I have doubts as to whether the motion judge's partial stay is in fact subject to appeal, but, in the event that it is, I am of the view that his decision was but a logical and reasonable extension of the decision he arrived at with respect to the substantive issue that was before him. I would not interfere with what was a proper exercise of his discretion." - See paragraphs 40 to 42.

Arbitration - Topic 2525

Stay of proceedings - Appeals - The defendant appealed from an order dismissing its motion for a stay of a proposed class action proceeding - Manitoba's Arbitration Act, s. 7(6), provided that "There is no appeal from the court's decision under this section." - The plaintiff raised the preliminary jurisdictional argument that there was no appeal from the decision of a motion judge made under s. 7(2)(c) of the Act ("the subject matter of the dispute is not capable of being the subject of arbitration under Manitoba law") - She relied on the decision in Hopkins v. Ventura Custom Homes Ltd. (2013) (Man. C.A.) - The Manitoba Court of Appeal stated that "[t]o the extent that the motion judge in this case found that [the plaintiff's] claim was not subject to arbitration, I am of the view that what Beard, J.A., stated in Hopkins is applicable and I would not dismiss the appeal on that basis." - See paragraphs 17, 21 and 22.

Contracts - Topic 9250

Unconscionable transactions relief - Jurisdiction - General - [See first Arbitration - Topic 2512 ].

Courts - Topic 7781

Provincial courts - Manitoba - Court of Queen's Bench - General - [See first Arbitration - Topic 2512 ].

Practice - Topic 5281

Trials - General - Stay of proceedings - Scope of stay - [See third Arbitration - Topic 2512 ].

Statutes - Topic 1446

Interpretation - Construction where meaning is not plain - Aids or methods to determine meaning - By reference to other provisions in same Act - [See first Arbitration - Topic 2512 ].

Statutes - Topic 2271

Interpretation - Presumptions and rules in aid - Against tautology (every word must have a meaning) - [See first Arbitration - Topic 2512 ].

Cases Noticed:

Seidel v. Telus Communications Inc., [2011] 1 S.C.R. 531; 412 N.R. 195; 301 B.C.A.C. 1; 510 W.A.C. 1; 2011 SCC 15, consd. [para. 3].

Young v. Dollar Financial Group Inc. et al. (2012), 550 A.R. 114; 2012 ABQB 601, affd. (2013), 556 A.R. 173; 584 W.A.C. 173; 2013 ABCA 264; leave to appeal denied [2013] S.C.C.A. No. 400, consd. [para. 9].

Zwack et al. v. Pocha et al., [2013] 3 W.W.R. 194; 404 Sask.R. 275; 2012 SKQB 371, dist. [paras. 16, 37 et seq.].

Murphy v. Amway Canada et al. (2013), 443 N.R. 356; 2013 FCA 38, dist. [paras. 16, 37 et seq.].

Hopkins v. Ventura Custom Homes Ltd. (2013), 294 Man.R.(2d) 168; 581 W.A.C. 168; 2013 MBCA 67, refd to. [para. 17].

Yellow Cab Ltd. v. Board of Industrial Relations et al., [1980] 2 S.C.R. 761; 33 N.R. 585; 24 A.R. 275, refd to. [para. 26].

Mattabi Mines Ltd. v. Ontario (Minister of Revenue), [1988] 2 S.C.R. 175; 87 N.R. 300; 29 O.A.C. 268, refd to. [para. 26].

3325806 Manitoba Ltd. v. Winnipeg City Assessor (2006), 201 Man.R.(2d) 222; 366 W.A.C. 222; 2006 MBCA 4, refd to. [para. 26].

Desputeaux v. Editions Chouette (1987) inc., [2003] 1 S.C.R. 178; 301 N.R. 220; 2003 SCC 17, refd to. [para. 31].

Jean Estate et al. v. Wires Jolley LLP (2009), 265 O.A.C. 1; 96 O.R.(3d) 171; 2009 ONCA 339, refd to. [para. 31].

Statutes Noticed:

Arbitration Act, S.M. 1997, c. 4; C.C.S.M., c. A-120, sect. 7(1) , sect. 7(2)(b), sect. 72(c), sect. 7(4), sect. 7(5), sect. 7(6) [Appendix].

Unconscionable Transactions Relief Act, R.S.M. 1987, c. U-20; C.C.S.M., c. U-20, sect. 1 [para. 25]; sect. 2, sect. 3, sect. 4 [Appendix].

Authors and Works Noticed:

Sullivan, Ruth, Sullivan on the Construction of Statutes (5th Ed. 2008), p. 62 [para. 26].

Counsel:

D.J. Kroft and J.P. Brown, for the appellant;

P.R. Bennett, M.W. Mounteer and M.P. Good, for the respondent.

This appeal was heard on January 10, 2014, before Monnin, Beard and Mainella, JJ.A., of the Manitoba Court of Appeal. In reasons written by Monnin, J.A., the Court delivered the following judgment, dated June 5, 2014.