Class Proceedings Vs. Arbitration in Canada: Resolving Class Conflict and Developing Guidelines
| Author | Jeffrey S. Leon and Cheryl D. Dusten |
| Pages | 603-616 |
603
CLASS PROCEEDINGS VS.
ARBITRATION IN CANADA:
RESOLVING CLASS CONFLICT AND
DEVELOPING GUIDELINES1
Jeffrey S. Leon and Cheryl D. Dusten2
A. INTRODUCTION
In recent years, courts in Ontario, British Columbia, and Quebec have
been called upon to consider whether a proposed class proceeding should
be stayed in favour of the binding arbitration agreements entered into by
the proposed class members. Such cases have put arbitration and class
proceedings legislation into the spotlight as courts have struggled to
resolve the apparent conflict between them.
Arbitration legislation, such as the Ontario Arbitration Act, 19913 and
the British Columbia Commercial Arbitration Act,4 supports the policy
objective of expediting dispute resolution and saving costs that would
be incurred in a court action.5 In order to support these objectives, both
of the Acts include provisions that require courts to stay proceedings
commenced by a party to an arbitration agreement in respect of a matter
covered by that agreement.6 Both Acts enumerate exceptions that, if pres-
ent, allow the court to refuse to stay the proceeding. In the Arbitration
Act, these exceptions include that the arbitration agreement is “invalid.”7
In the Commercial Arbitration Act, the exceptions are that the arbitration
1 An earlier version of this paper was presented at the Commercial Bar
Association’s North American Meeting 2006, which was held in Rome in June,
2006.
2 Jeffrey S. Leon, LSM, Partner, Fasken Martineau DuMoulin LLP, Toronto;
Cheryl D. Dusten, Associate, Fasken Martineau DuMoulin LLP, Toronto.
3 Arbitration Act, 1991, S.O. 1991, c. 17 [Arbitration Act].
4 Commercial Arbitration Act, R.S.B.C. 1996, c. 55 [Commercial Arbitration Act].
5 MacKinnon v. National Money Mart Co., [2004] B.C.J. No. 175 at para. 19
(S.C.), rev’d [2004] B.C.J. No. 1961 (C.A.) [MacKinnon].
6 Arbitration Act, above note 3, s. 7(1); Commercial Arbitration Act, above note 4,
s. 15(1).
7 Arbitration Act, ibid., s. 7(2)(2).
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