In Vandenbosch v Rogers Communications Canada Inc, 2025 BCSC 1199, the Court granted both defendants’ applications to stay court proceedings in favour of arbitration. The stay against the primary defendant was granted, even though the arbitration clause was contained in a consumer contract. The Court considered recent amendments to BC’s Business Practices and Consumer Protection Act, SBC 2004, c. 2 (“BPCPA”) prohibiting arbitration clauses in consumer contracts, which came into force during a continuance of the hearing of the defendants’ stay applications. The Court found that the amendments had a retrospective effect on future disputes arising under contracts concluded prior to the amendments, but not a retroactive effect on disputes arising from facts occurring prior to the amendments. Accordingly, the BPCPA amendmentsdid not apply to the plaintiff’s action, which was based on claims that arose before the amendments were passed. Therefore, the Court granted the stay of the court proceedings. The Court also stayed claims raised against a second defendant, a non-signatory to the arbitration agreement, on the basis that these claims were based on the same factual matrix as the claims formulated against the primary defendant, which was a party to the arbitration clause.
Factual Background– Plaintiff, Vandenbosch, was a BC wireless services customer of Defendant, Rogers Communications Canada Inc (“Rogers”). Her personal information was hacked by a person pretending to be a Rogers technician who had phoned into a retail mobile kiosk owned by the second defendant Match Transact Inc. (“Match”), which operated out of Québec City. This information was used by the malfeasant to access the plaintiff’s cryptocurrency accounts and steal bitcoins that were alleged to be valued at between approximately $500,000 and $1,000,000.
As against Rogers, the plaintiff brought several causes of action, including under ss. 171 and 172 of the BPCPA, which allow a consumer to bring an action for damages and for declaratory or injunctive relief in certain cases, s. 1 of British Columbia’s Privacy Act,RSBC 1996, c 373 (“Privacy Act”), which makes the violation of one’s privacy a tort, breach of contract, negligence and negligent misrepresentation.
As against Match, the plaintiff advanced, among other claims, causes of action based on s. 1 of the Privacy Act,and claimed damages for negligence.
The defendants’ stay applications – The plaintiff’s wireless service agreement with Rogers contained a broad arbitration clause. Invoking this clause, Rogers brought an application to stay the plaintiff’s action pursuant to s. 7 of the Arbitration Act, SBC 2020, c 2 (“BC Arbitration Act”) in respect of all the plaintiff’s claims, except her claims under s. 172 of the BPCPA on the basis that those claims could not be arbitrated. The second defendant, Match, also sought a stay – even though it was not a party to the wireless services agreement and the claims against it were not based on the contract – on the ground that it had acted as an agent for Rogers, or, in the alternative, that the plaintiff’s claims against it were so interwoven with the claims against Rogers that if the Court were to grant a stay of claims made against Rogers, it would be in the interests of justice to also grant a stay of claims brought against Match.
The hearing of the defendants’ stay applications began on November 7, 2024, but had to be continued to a later date. In the interval, on March 31, 2025, the BC legislature passed amendments to the BPCPA, introducing ss. 14.1 ff, which prohibited dispute resolution clauses, including arbitration clauses, in consumer contracts. The BPCPA contained a transitional provision (s. 203.001), which stated that the new sections of the BPCPA applied to “contracts entered into before, on or after the coming into force” of the amendments. The Court found that this language was not clear.
When the hearing continued on April 11, 2025, the plaintiff contended that these amendments rendered the arbitration clause in her wireless services agreement void; therefore, the defendants’ request to stay her court claims must fail.
Rogers argued that the amendments to the BPCPA applied retrospectively, but not retroactively. That is, the amendments would apply to contracts concluded prior to their coming into force of the amendments to the BPCPA, but only with respect to disputes that arose after the amendments came into force.
The Court’s decision:
(1) The Rogers stay application – The sole issue for determining Rogers’ stay application was whether the amendments to the BPCPA affected Rogers’ ability to arbitrate the plaintiff’s dispute. The Court determined that the amendments to the BPCPA prohibiting arbitration clauses in consumer contracts are retrospective, but not retroactive, and therefore would not apply to the plaintiff’s action:
“[49] (…) The BPCPA Amendments apply to new disputes that arise under contracts entered into before March 2025, such that for those new disputes, the supplier can no longer seek to arbitrate. However, in my view, the language of the transitional provision is not sufficiently clear to indicate the government intended the BPCPA Amendments to apply retroactively, thus changing the parties’ substantive rights under old contracts for disputes arising before March 2025.”
In coming to that determination, the Court considered among other things:
- The distinction between retroactive and retrospective legislation. If the amendments were retroactive, the arbitration agreement would be void and no part of the plaintiff’s dispute would be arbitrable. However, if the amendments were retrospective, they would only apply to disputes that arose after the amendments came into force.
- The presumption against retroactivity of legislation.
(2) The Match stay application – Match was not a party to the arbitration agreement in the plaintiff’s wireless services agreement. The plaintiff argued that her claims against Match were independent of her claims against Rogers and could not be stayed.
Relying on Canadian Mortgage Experts Inc v Domininon Lending Centres Inc, 2022 BCSC 911 and Kwon v Vanwest Colleged Ltd, 2021 BCSC 545 (see previous Arbitration Matters Case note # 459: BC – Non-parties to agreement to arbitrate granted stay of counterclaim along with plaintiff) the Court found that claims raised against a non-signatory to arbitration could be stayed if they were sufficiently interwoven with claims raised against a party to the arbitration agreement which were stayed. Here, the Court found that the claims against Match were so interwoven they should be stayed because they arose from the same factual matrix as the claims against Rogers. Refusing to stay the claims against Match would create multiple proceedings and raise the risk of contradictory rulings. The Court did not further address Match’s argument that it acted as an agent of Rogers.
Contributor’s notes:
First, the Court’s finding that the amendments to the BPCPA apply retrospectively but not retroactively was based on a rigorous exercise of statutory interpretation, informed by the reasoning of cases that have considered similar issues. The Court’s finding is also pragmatic: if the amendments to the BPCPA applied retroactively, the fate of ongoing arbitrations (initiated prior to the amendments) based on arbitration agreements contained in consumer contracts that existed before the amendment would hang in the balance. So, too, might the fate of past arbitration awards rendered under arbitration agreements contained in consumer contracts governed by BC law.
Second, though the plaintiff’s argument was centered entirely on the amendments to the BCCPA, the Court went on in obiter to apply the two-step test to determine an application for a stay under section 7 of the BC Arbitration Act developed in Peace River Hydro Partners v. Petrowest Corp., 2022 SCC 41 (See previous Arbitration Matters case note #687 Supreme Court – Peace River v Petrowest Part 2: no conflict between arbitration, bankruptcy law) At the first step, the Court found that Rogers had met its burden of demonstrating an arguable case on the four technical pre-requisites for a stay. At the second step (statutory exceptions), the Court assessed whether the plaintiff’s claims based on s. 1 of the Privacy Act were not arbitrable pursuant to section 4 of the same act, which states that “despite anything contained in another Act, an action under this Act must be heard and determined by the [British Columbia] Supreme Court”. Relying on Douez v Facebook, inc., 2017 SCC 33, in which the Supreme Court of Canada found that section 4 of the Privacy Act does not override contractual forum selection clauses, the Court likewise found that it does not override contractual arbitration clauses.
Third, in ruling that the claims against the second defendant, Match, could also be stayed in favour of arbitration due to the intertwining of the facts underpinning claims as against Rogers and Match, the Court had to address the plaintiff’s argument that the theory of liability was different as against Match and Rogers; the first was based in negligence and the second was based in contract. In dismissing the argument that the stay could not be granted because Match was not a party to the arbitration agreement, the Court noted that this issue “may be addressed by the arbitrator”. Such reasoning violates basic principles of party autonomy. It assumes that that the arbitrator should determine its jurisdiction over the non-signatory and that, in doing so, it should consider the principle of interwoven claims due to overlapping factual matrix described above, even in the absence of explicit consent of the non-signatory, Match, or of the defendant, Rogers, to join Match to the arbitration. This type of reasoning suggests that a possible trend toward binding non-signatories to arbitrations in Québec might, as the song suggests, be going West (see Marie-Claude’s 2022 Hot Topic: Binding non-signatories – A new trend arising in Québec?). It also appears to be inconsistent with TELUS Communications Inc v Wellman, 2019 SCC 19, which found that claims made by parties that are not subject to an arbitration agreement could not be joined to an arbitration commenced in respect of similar claims brought by parties that were subject to an arbitration agreement. The Court appeared to distinguish TELUS on the basis that the Supreme Court of Canada was considering legislation that prohibited arbitration agreements in consumer contracts and did not consider the possibility that the non-signatories could be joined to the arbitration due to the intertwining of the claims of brought by the signatories and non-signatories to the arbitration agreement. It. The Court appears not to have considered Match’s argument that it was an agent of Rogers, which might have been a ground to find that it was subject to the arbitration agreement under the contract.