Dispute over Cellphone "Roaming" Charges Reaches the Supreme Court of Canada

Cellphone subscribers of Rogers Wireless Inc (Rogers) who use their phones in the United States are subject to roaming charges which can range from 95 ¢ per minute to, in "excluded areas", as much as $4 per minute. A Quebec resident subscriber, Dr Muroff, used his Rogers mobile phone to make calls from Rhode Island and Maine, and was billed $4 per minute for these calls. The Rogers customer service agreement contained an arbitration clause which required any disputes between Rogers and a customer to be settled by arbitration and specifically barred a customer from commencing or participating in a class action. Dr Muroff argued that the arbitration clause was abusive under Quebec law and applied for authorization to institute a class action against Rogers on behalf of himself and all other subscribers who were charged the $4 roaming rate. In the Quebec Superior Court, it was found that the arbitration clause prevailed. On appeal to the Quebec Court of Appeal, this ruling was reversed. The further appeal to the Supreme Court of Canada was allowed, the decision of the Superior Court restored, and the case referred to arbitration. The Supreme Court of Canada applied the principles enunciated in a companion case, Dell Computer Corp v Union des consommateurs and Dumoulin (see the preceding issue of E-TIPS® "Supreme Court of Canada Dismisses Dell Class Action in Quebec", Vol 6, No 3, August 1, 2007), in which it was held that a mandatory arbitration clause is not necessarily abusive simply because it is contained in a consumer contract. (As noted earlier in E-TIPS®, this question, as it relates to consumer contracts, was later laid to rest by legislation which specifically prohibits a contractual attempt to remove such disputes from the ambit of class actions). On the additional point at issue in the Rogers case, the Court held that when an arbitration clause exists, any challenges to the jurisdiction of the arbitrator must first be referred to the arbitrator. Courts should depart from this general rule only when there is at issue solely a question of law. For the full reasons for judgment (Rogers Wireless Inc v Muroff, 2007 SCC 35), visit: http://scc.lexum.umontreal.ca/en/2007/2007scc35/2007scc35.html Summary by: James Kosa and Oren Weichenberg