In an article published recently in Law Times, Davies partner Chantelle Cseh speaks about the enforceability of arbitration clauses in class actions involving two types of claimants.

The Ontario Court of Appeal in Wellman v Telus Communications Company had refused to grant a partial stay to business customer claims in a $520-million class action, finding that it would be unreasonable to separate the business customer claims from the consumer claims. Telus was granted leave to appeal the decision, which will be heard by the Supreme Court of Canada this fall.

“Class actions that feature both consumers and business customers as part of the group of claimants are not uncommon,” Chantelle notes. “This arises frequently. We have decisions from a number of jurisdictions. This is an opportunity for the Supreme Court to clarify rules that will be of general application.”

Chantelle believes the 2010 decision in Griffin v Dell, which was followed by the Ontario Court of Appeal, was incorrectly decided. She also believes that Telus has a strong case in its appeal to the Supreme Court: “Just because you have initiated a class action, should that oust substantive rights? Business customers can still pursue claims against a company through an arbitration process,” she suggests.