Canada / 13 March 2009 / Canada, Court of Appeal for British Columbia / MacKinnon and Parsons v. National Money Mart Company
| Country | Canada |
| Court | Canada, Court of Appeal for British Columbia |
| Date | 13 March 2009 |
| Parties | MacKinnon and Parsons v. National Money Mart Company |
| Applicable NYC Provisions | II | II(3) |
| Source |
2009 BCCA 103 | online: CanLII |
| Languages | English |
| Summary | Kurt MacKinnon (“MacKinnon”) entered into multiple “Fast Cash Advance” loan agreements with National Money Mart Company (“Money Mart”), each containing a clause referring all disputes to arbitration in accordance with the British Columbia Commercial Arbitration Act. MacKinnon, and others who received similar loans, commenced an action against Money Mart alleging that the cheque cashing fees applied by Money Mart upon repayment of the loans constituted illegal interest and were prohibited by the Criminal Code. Money Mart requested that the dispute be referred to arbitration but MacKinnon refused. Two years after the initiation of court proceedings by MacKinnon, Louise Parsons (“Parsons”) commenced a similar proceding against Money Mart, and the two actions were merged. In 2004, a case management judge ordered the consolidated action be certified as a class action proceeding and thereby dismissed Money Mart’s motions to stay the action in favour of arbitration. These orders were appealed by Money Mart in the same year. The British Columbia Court of Appeal upheld the case management judge’s ruling in its decision (“MacKinnon CA”). Money Mart then applied to the Court of Appeal to overturn MacKinnon CA, arguing that the 2007 Quebec rulings of the Supreme Court of Canada in Dell Computer Corp. v. Union des consommateurs (“Dell”) and Rogers Wireless v. Muroff (“Rogers”) had changed the law by ruling that a class action is a procedural vehicle that does not modify the substantive rights created by an arbitration clause. The Court of Appeal held that the rulings in Dell and Rogers, which involved class action proceedings in Quebec, should both apply in British Columbia. It noted that the international and domestic arbitration legislation of both Quebec and British Columbia were based on the NYC and the UNCITRAL Model Law on International Commercial Arbitration (the UNCITRAL “Model Law”) and were therefore not materially different from each other. For example, in Dell the Supreme Court observed that Article 940(1) of the Quebec Code of Civil Procedure “incorporated the essence” of Article II(3) NYC and that all six of the arbitration provisions in the Quebec Code of Civil Procedure could be traced to either the NYC or the UNCITRAL Model Law. They were therefore to be interpreted in a manner consistent with both. In British Columbia, the Foreign Arbitral Awards Act also adopts the NYC in full as a schedule, and Art. 15(2) of the Act closely mirrors the wording of Article II(3) NYC. |
Attachment (1)
 Original Language Adobe Acrobat PDF |
