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It found that the trial court erred in denying the stay based on the preference for a class proceeding, (57) and went on to consider Seidel's argument that section 172(1) of the BPCPA afforded her the right to pursue her claim in a court of law.
(60) However, the majority breaks slightly from Dell and Rogers by incorporating legislative intent, as opposed to explicit and strict legislative language, into their analysis of "legislative intervention." (61) Focusing on section 172(1) of the BPCPA, the majority finds that, "[a]s to statutory purpose, the BPCPA is all about consumer protection....
Interpreting the BPCPA, the dissent disagreed that the act "manifests explicit legislative intent to foreclose the use of arbitration as a vehicle for the resolution of disputes." (69) It framed the case in terms of "whether access to justice means--and requires--access to a judge," (70) and found that "[a]ccess to justice in Canada no longer means access just to the public court system." (71) In sum, the dissent concluded that "[g]iven the current structure of consumer protection legislation in British Columbia, submitting a consumer's dispute with their mobile phone service provider to arbitration is entirely consistent with the important public purposes of protecting consumers, vindicating their rights and promoting access to justice." (72)
The BPCPA, which was found to void the mandatory arbitration clause in Seidel, is exemplary in this regard.
(a) a supply of goods or services or real property by a supplier to a consumer for purposes that are primarily personal, family or household, or (b) a solicitation, offer, advertisement or promotion by a supplier with respect to a transaction referred to in paragraph (c), and, except in Parts 4 and 5, includes a solicitation of a consumer by a supplier for a contribution of money or other property by the consumer; (92) An ordinary reading of this excerpt would seem to indicate that exchange of payment is not a prerequisite for coverage under the BPCPA. It falls to the courts to interpret statutes like the BPCPA in order to determine whether they apply to a given transaction or agreement in which no payment was made.
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