As we have discussed
before, the public policy rationales for enforcing arbitration
agreements are arguably at odds with the policy rationales
underpinning the class actions regime. Over the past few years,
courts in Canada and the United States have been engaged in this
dialogue through cases involving consumer contracts.
The Seidel decision continues to be
applied by Canadian courts for the proposition that arbitration
clauses should be enforced unless expressly prohibited by the
legislature. The Supreme Court only certified the Consumer
Protection Act ("CPA") claim as a class
action and held that the other non-consumer claims would proceed to
arbitration. The Supreme Court's decision in Seidel
built on the principles previously articulated in Griffin v Dell Canada Inc., where the
Ontario Court of Appeal certified a class action in which a
consumer contract contained an arbitration clause on the basis that
the "CPA provisions resolve the tension between the
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