Fasken acted for Google LLC, Google Canada Corporation, and Alphabet Inc. (the “Google Defendants”) in a putative price-fixing class action brought by Spark Event Rentals (“Spark”). Spark alleged that Google engaged in a conspiracy with Apple Inc. and Apple Canada Inc. (“Apple”) that caused the price Spark paid for Google Search ads to be higher than the price would otherwise have been. This was a commercial class action with the class of representative plaintiffs being companies that entered into agreements with the Google Defendants for the provision of ad services. Each advertiser accepted terms of service which include a mandatory arbitration clause.
The Google Defendants sought a stay of the proceedings pending arbitration. Spark objected to the stay, arguing that the arbitration clause was void as being unconscionable and contrary to public policy. The British Columbia Supreme Court agreed with the submissions of the Google Defendants and stayed the putative class proceeding pending arbitration.
The British Columbia Court of Appeal dismissed Spark’s appeal finding that the exceptions to the principles of competence-competence (which allows for the arbitrator to decide jurisdictional issues) did not apply on the facts of this case.
This is a significant victory for defendants in class proceedings who seek to rely upon arbitration clauses. Spark has sought leave to appeal to the Supreme Court of Canada.
Fasken acted for Google LLC, Google Canada Corporation and Alphabet Inc. with a team including Tracey M. Cohen, Andrew Borrell and Paige Mueller.
Jurisdiction
- British Columbia
