Consumer Class Arbitration in Canada: It’s About Time

• Author: Rohan Shah
• Pages: 139-168

139

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 1398/6/2019 4:33:30 PM

CCAR 15-1.indb 1408/6/2019 4:33:30 PM