Consumer Class Arbitration in Canada: It’s About Time

AuthorRohan Shah
Consumer Class Arbitration in Canada: It’s About Time
Rohan Shah
: This paper examines the novel concept of class arbitration in
Canada. Given the current fragmented, provincial class actions regime,
plaintif‌fs and defendants face signif‌icant barriers in obtaining justice.
These obstacles have been compounded by the increase in interprov-
incial and international class actions. In particular, there are constitu-
tional uncertainties surrounding the certif‌ication of national opt-out
class actions by provincial superior courts. Moreover, defendants strug-
gle to enforce multijurisdictional class action judgments. Not only does
this prevent them from obtaining res judicata, it further reduces judicial
economy. Correspondingly, plaintif‌fs may not be certain whether they
are bound by class judgments awarded in other jurisdictions and may
have to bring fresh proceedings to recover damages. These challenges
undermine the already dire access to justice situation in Canada. This
paper argues that class arbitration can address all of these challenges and
ef‌fectively resolve privacy law disputes, an increasingly litigated area.
Notwithstanding these benef‌its, class arbitration must overcome several
hurdles in order to f‌lourish, such as consumer protection legislation and
the protection of absent class members’ interests. This paper suggests
that class arbitration can overcome judicial opposition to pre-dispute
mandatory arbitration clauses, rely upon existing arbitral rules, and pro-
tect absent class members’ interests through a combination of high arbi-
tral standards and a system of private enforcement. It therefore argues
that class arbitration can and should be embraced in Canada.
CCAR 15-1.indb 139 8/6/2019 4:33:30 PM
CCAR 15-1.indb 140 8/6/2019 4:33:30 PM

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