Consumer can seek class action certification, despite contract fine print: Supreme Court

The Supreme Court of Canada has ruled that a B.C. woman can still launch a class action lawsuit against her cellphone provider, even though the fine print of her contract had a clause that waived her right to sue.
In Seidel v Telus Communications, Michelle Seidel entered into a cell phone contract with Telus in 2000. The standard form contract included a clause referring disputes to private and confidential mediation and arbitration.
It further purported to waive any right to commence or participate in a class action, the Supreme Court of Canada decision says.
Seidel sued Telus for allegedly falsely representing to her and other consumers how it calculates air time for billing purposes. She contended that these were deceptive and unconscionable practices, and sought certification to act on her own behalf and as a representative of a class of allegedly overcharged customers, the decision continues.
Telus applied for a stay of all proceedings on the basis of the arbitration clause. The trial judge denied the application, finding it would be premature to determine whether the action should be stayed until the certification application had been decided.
Seidel argued that the clause violated sections 171 and 172 of the Business Practices and Consumer Protection Act (BPCPA).
In a narrow 5-4 split decision by the nine-member panel of judges, it was decided that Seidel’s court action must be allowed to proceed notwithstanding the mediation/arbitration clause.
“Section 172 of the BPCPA contains a statutory remedy whereby a person other than a supplier may bring an action in the Supreme Court to enforce the statute’s consumer protection standards whether or not the person bringing the action has a special interest or is affected by the consumer transaction that gives rise to the action,” the decision says.
“This conclusion is reinforced by s. 3 of the BPCPA which provides that any agreement between parties that would waive or release “rights, benefits or protections,” conferred by the BPCPA is void.”