The Developing Landscape Of Arbitration — The Impact Of Dell And Rogers

Article originally published in McCarthy Tétrault Litigation Co-counsel (Volume 2, Issue 3) on March 25, 2009

The legal landscape related to the enforcement of arbitration clauses continues to develop following the Supreme Court of Canada's decisions in Dell Computer Corp. v. Union des consommateurs, 2007 SCC 34 (CanLII) and Rogers Wireless Inc. v. Muroff, 2007 SCC 35 (CanLII) in July 2007. In both, the Supreme Court decided that under the law of Québec, as a matter of principle, an arbitrator is competent to decide his or her own jurisdiction unless doing so entails primarily deciding questions of law — in which case a court would be better disposed to determine the jurisdictional issue. The principle was held to apply even in the context of a motion for authorization to institute class proceedings. In essence, the Québec regime for class actions is procedural and does not modify substantive rights, including those resulting from an arbitration clause. Therefore,