Forum of Redress (11:IX)
|This information applies to British Columbia, Canada. Last reviewed for legal accuracy by the Law Students' Legal Advice Program on June 22, 2022.|
There are multiple forums through which the client can seek a resolution. Once the client’s issue has been diagnosed legally, it is still necessary for the client to know where and how they can bring their claim. This section will cover the 3 major options and outline the pros and cons of each.
Many consumer contracts have an arbitration clause. This clause means that instead of taking up the issue in court, the issue will be taken up in arbitration. There are, however, instances where an arbitration clause can be unenforceable, and therefore not binding on the consumer.
1. BPCPA s 172 Remedies
In Seidel v. TELUS Communications Inc., 2011 SCC 15, the SCC decided that consumers can always bring their action invoking s 172 of the BPCPA to the supreme court, and that this was a statutory right. However, the SCC also stated that the choice to restrict arbitration clauses in consumer contracts is a matter of legislation and the courts must therefore defer. This means that for other claims, whether under other sections of the BPCPA, other statues or common law, arbitration clauses are valid and enforceable unless otherwise restricted.
On a case-by-case basis, courts will determine if an arbitration clause is unconscionable and therefore unenforceable. In Uber Technologies Inc. v. Heller, 2020 SCC 16 [Uber v Heller], the SCC found the arbitration clause to be unconscionable and therefore unenforceable. Much like unconscionability in other terms of a contact, the court evaluated two elements to determine unconscionability: whether there is an “inequality of bargaining power and a resulting improvident bargain” (Uber v Heller at para 65). In Uber v Heller, the SCC determined there was an inequality of bargaining power because it was a standard form contract, there was a large disparity in sophistication between the parties, and a person in Heller’s position could not be expected to appreciate the financial and legal implications of the arbitration clause. The SCC also determined that there was an improvident bargain because of the US$14 500 up-front cost of arbitration. Therefore, the term was determined to be unconscionable and therefore unenforceable.
B. Consumer Protection BC
Consumer Protection BC is the regulator of many types of consumer transactions in BC. They license and inspect regulated businesses, assist consumers by responding to inquiries and providing information, and investigate alleged violations of consumer protection laws. Consumers can report alleged violations to Consumer Protections BC, and CPBC has investigative and enforcement powers to respond to those complaints.
C. Civil Resolution Tribunal / Small Claims / Supreme Court
Claims less than $5000 must be taken to the Civil Resolution Tribunal (CRT). If the claim is between $5001 and $35 000, the claim must be taken to Small Claims. Claims for more than $35 000 are taken to the Supreme Court. Refer to the Small Claims chapter for more information about the CRT and Small Claims.
D. Class Action
In many cases, it is not economically justifiable for a consumer to pursue their individual claim through the courts. For example, if their claim is for $100, they may have to spend money and hours of their time to reach a successful outcome at the CRT. For many consumers, this is simply not economical. There is also an issue of risk and competence; there is no guarantee that the time spent will result in a successful claim. Even though the CRT does not allow representation unless they grant permission, in The Owners, Strata Plan NW 2575 v. Booth, 2018 BCSC 1605, the court acknowledged that this does not bar the party from relying on counsel to prepare their submissions and assist, as long as the lawyer does not directly participate. Therefore, even if they are not directly represented, a big corporation keen on protecting their business interests will have access to more resources and legal advice than the average person bringing a claim to the CRT. This may make it difficult for a consumer to be successful, even if they commit a substantial amount of time making their claim.
Class Actions allow claimants to aggregate their individual claims. A lawyer can then represent the whole class, and will often work on a contingency fee arrangement, meaning the lawyer will take a percentage of the awarded amount. This shifts the risk to the lawyer and enables the class to get representation where they might not be able to individually. A representative plaintiff is appointed to act on behalf of the class as a whole. This is typically a member of the class, but there are exceptional circumstances where a person who is not a member of the class can be certified (Class Proceedings Act, RSBC 1996, c 50, s 2 (4) [CPA]). Class actions have an application process and either the plaintiff or defendant can apply.
1. Plaintiff Class Proceeding (CPA s 2)
A resident of British Columbia who is a member of the class can commence a proceeding on behalf of the class. They need to appoint a class representative and certify the proceeding as a class proceeding. Refer to CPA s 4 for additional requirements and responsibilities when applying for a class proceeding.
2. Class Certification (CPA s 4)
For a proceeding to qualify as a class proceeding, it needs to meet the certification requirements. The pleadings must disclose a cause of action, there must be an identifiable class of 2 or more persons, the claims of the members of the class need to raise common issues, a class proceeding needs to be the preferable procedure for the fair and efficient resolution of those common issues, there needs to be a representative who will fairly represent the interests of the class without a conflict of interest, and that representative needs to have produced a workable plan setting out how they will advance the proceeding and notify members of the class. CPA s 4 (2) outlines how to determine if a class action is the preferable procedure, and s 4(3) and s 4.1 lay out multi-jurisdictional considerations. The case Gomel v Live Nation Entertainment (Ticketmaster), 2021 BCSC 699, offers an in-depth example of certification.
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