I. Introduction

[1] Telus applies for a stay of this intended class action on the basis that two recent judgments of the Supreme Court of Canada, Dell Computer Corp. v. Union des Consommateurs, 2007 SCC 34, [2007] 2 S.C.R. 801 and Rogers Wireless Inc. v. Muroff, 2007 SCC 35, [2007] 2 S.C.R. 921, require a determination by an arbitrator of the applicability of an arbitration clause contained in the agreement between the parties prior to a certification hearing.

[2] Telus submits that Dell and Rogers have overtaken McKinnon v. Money Mart Co., 2004 BCCA 473, 50 B.C.L.R. (3d) 291 [MacKinnon #2], a decision of a five member panel of the court. In that case, the court found that s. 15 of the Commercial Arbitration Act, R.S.B.C. 1996, c. 55 [CAA] and s. 4 of the Class Proceedings Act, R.S.B.C. 1996, c. 50 [CPA] were in mutual conflict and held that it is the duty of the court to consider under s. 4 of the CPA whether a class action proceeding is the preferred method of resolving the parties’ dispute having regard to all circumstances including the presence of an arbitration clause. If a class action proceeding is preferred under s. 4 of the CPA, then the arbitration agreement is rendered “inoperable” and the court should refuse to stay proceedings under s. 15 of the CPA.