The amendments to the B.C. Business Practices and Consumer Protection Act (BPCPA) received royal assent on March 31 of this year.
In Vandenbosch v. Rogers Communications Canada Inc., 2025 BCSC 1199, the plaintiff, Raelene Vandenbosch, had been a customer of Rogers Communications Canada Inc. since 2015. In 2021, her personal information was hacked after someone pretending to be a Rogers technician called a WOW! Mobile Boutique kiosk, owned by Match Transact Inc., in Quebec City.
The kiosk clerk was asked to enable screen sharing and the hacker gained access to the plaintiff’s personal information. The hacker swapped the SIM on the plaintiff’s account and gained access to her phone number, phone and internet accounts, including her cryptocurrency account.
Within a few minutes, the hacker withdrew the Bitcoins from the account and gained access to a second cryptocurrency account, withdrawing additional bitcoins. The plaintiff alleged that the loss was estimated to be $534,530 at the time of theft, which was valued at $1 million shortly after.
The plaintiff brought the action in three provinces: B.C., where she is a resident, Ontario, where Rogers is headquartered, and Quebec. She claimed damages for breaches of privacy, contract, negligence and negligent misrepresentation, statutory causes of action and consumer protection laws.
Rogers brought an application for a stay in favour of arbitration per its wireless services agreement and terms of service, except for claims under s. 172 of the BPCPA. Match asked for a stay if Rogers’ was granted because it acted as an agent for Rogers.
The stay application began on Nov. 7, 2024. The amendments to the Act followed on March 31 of this year. When hearings continued on April 11, the plaintiff abandoned her other arguments and said she would rely only on these amendments.
She posited that the amendments made arbitration clauses void and applied to contracts like hers entered into before the amendments were enforced. A transitional provision stated that this applies to contracts entered into before enforcement. There was “no ambiguity and no need to resort to the principles of statutory interpretation.”
Rogers argued that statutory interpretation must be used for the transitional provision. It said the amendments did not operate retroactively but only retrospectively and did not apply to the plaintiff. The court found that the issue at hand required statutory interpretation and determination of the legislature's intent.
The court noted that a retroactive law applied a new law to a past event where an old law applied before the new one was enacted, while a retrospective law had an effect for the future based on facts that occurred in the past. For the latter, the amendments would only apply to disputes that occurred after enforcement.
“There is a presumption in statutory interpretation that legislatures do not intend for legislation to apply retroactively,” said Justice Anita Chan, noting that where a law is intended to apply retroactively, it will say so within the law’s formulations or by having it take effect on an earlier date.
Further, general principles of statutory interpretation were still considered in past cases where there were detailed transitional provisions, including the presumption against retroactivity. The public protection exception also only applied where a clear nexus existed between the legislation and risks to the public from prior conduct.
The Supreme Court of Canada had previously held that this exception cannot apply to all legislation said to be aimed broadly at public protection, the court said. It is triggered where the design of the penalty signals that benefits of retrospectivity against the potential for unfairness had been weighed.
“In my view, consumer protection legislation is not captured by the public protection exception to the presumption against retrospectivity,” said Justice Chan. “Consumer protection legislation is broadly aimed at public protection, with no clear nexus between the legislation and the risks to the public.”
The Supreme Court of Canada had also previously held that retroactivity is highly exceptional. In cases where the law is ambiguous and can have two interpretations, the one against retroactive effect is to be preferred.
Justice Chan said that in her view, the transitional provision in the amendments supported both a retroactive and retrospective application, as it considers contracts entered before the amendments came into effect, but does not clearly support that it was intended to apply retroactively.
She found that retroactivity did not apply to the plaintiff’s case and the amendments applied to new disputes arising from older contracts. The transitional provision made no reference to retroactive application.
It was noted that during the committee stage of the amendments, member of the opposition Steve Kooner asked Attorney General Niki Sharma whether the clause was proposing retroactivity. She clarified that it was not retroactive; it was retrospective.
Additionally, if legislature intended for the amendments to be retroactive, it would have provided guidance on how the amendments would impact completed, ongoing or in-process arbitrations, or ones where the consumer was unsuccessful. If arbitration clauses were to be void for disputes occurring before the amendments, “the legal effect of completed arbitrations will be uncertain.”
The court went on to note that claims under Ontario’s Consumer Protection Act ignored Rogers’ term that any dispute is governed by the laws where the plaintiff’s billing address is located. The plaintiff “did not address why the forum selection clause should not be enforced,” nor gave any reason to not enforce the arbitration clause for Quebec claims.
The claims were stayed in favour of arbitration, except for s. 172 claims. The claims against Match were stayed as they arose from the same factual matrix. It may need to pursue third-party claims against Rogers, the court said.
Counsel for the plaintiff were Simon Lin of Evolink Law Group and Alexia Majidi of Hammerco Lawyers.
Counsel for Rogers were Emma Irving and of Mélanie Power of Dentons Canada LLP.
Counsel for Match was Nathan Lapper of Norton Rose Fulbright Canada LLP.
They were not immediately available for comment.
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