Retrospectively speaking: BC Court of Appeal clarifies scope of consumer protection amendments

In 2025, the British Columbia Legislature amended the Business Practices and Consumer Protection Act (BPCPA) to prohibit mandatory arbitration clauses in certain contracts, including consumer contracts. The amendments do not expressly address whether the ban applies to disputes involving contracts with an existing arbitration clause that arose before the amendments came into force.

The British Columbia Court of Appeal has now answered that question with a clear "no". In Vandenbosch v. Rogers¹, the Court confirmed that the amendments are retrospective—they may apply to pre-existing contracts—but not retroactive. The amendments do not void arbitration clauses where the underlying dispute pre-dates March 31, 2025.

What you need to know

• The BPCPA amendments came into force on March 31, 2025. Amendments enacted through Bill 4, the Business Practices and Consumer Protection Amendment Act, 2025, prohibit suppliers from including certain dispute resolution clauses in consumer contracts and render such clauses void. A transitional provision provides that the amendments apply to “contracts entered into before, on, or after the coming into force”.
• Retroactive versus retrospective legislation. A retroactive law applies a new rule to events that occurred in the past, effectively changing the law from what it was at the time of the past event. In contrast, a retrospective law applies going forward to situations that have their roots in the past. Without clear statutory language, a court will presume the legislature did not intend for legislation to be retroactive. The Court of Appeal upheld the Chambers judge's conclusion that the amendments are retrospective, not retroactive. This means they apply to new disputes involving consumer contracts entered into before March 31, 2025, but do not apply to existing disputes that arose prior to that date.

Facts: a SIM swap hack and a cryptocurrency loss

The plaintiff, Raelene Vandenbosch, had a wireless cell phone services agreement which contained a mandatory arbitration clause. In 2021, a hacker allegedly gained access to the plaintiff’s phone account and, through a scheme involving a mobile kiosk in Québec, stole bitcoins from her cryptocurrency accounts then valued at over $500,000. In June 2023, the plaintiff commenced an action alleging breaches of federal and provincial privacy and consumer protection statutes, as well as common law claims in breach of contract, negligence, and negligent misrepresentation.

The BPCPA amendments and a shifting litigation strategy

The defendants each brought applications for stays of proceedings in favour of arbitration. At the initial hearing in November 2024, the plaintiff conceded that some of her claims were arbitrable but maintained that others were not.

On March 31, 2025, amendments to the BPCPA prohibiting certain dispute resolution provisions in consumer contracts came into force. The amendments provide that a “dispute resolution term or acknowledgment…in a consumer contract is void”², and defines a "dispute resolution term or acknowledgment" as “a term or acknowledgment in a contract that requires or has the effect of requiring that a dispute in relation to a matter arising out of the contract be submitted to arbitration or another dispute resolution process”³. A transitional provision states that the amendments apply to “contracts entered into before, on or after the coming into force” of those sections⁴.

Following the amendments, the plaintiff withdrew her prior arguments and concessions and re-framed her opposition on a single basis: that the amendments had rendered the arbitration clause void. The Chambers judge rejected that argument, finding that the amendments did not operate retroactively and therefore did not apply to the plaintiff's claims, which arose prior to March 2025. The plaintiff appealed.

The Court of Appeal's decision

The central question before the Court was one of statutory interpretation: did the amendments apply retroactively to disputes that had already arisen prior to their enactment in March 2025?

The Court applied the well-established principle that where a law is ambiguous as between two interpretations, the interpretation that avoids retroactivity is to be preferred, following Dell Computer Corp. v. Union des consommateurs⁵. The transitional provision relevant to the amendments—which states that the new arbitration prohibition applies to contracts entered into "before, on or after" the coming into force—was found to be ambiguous: it suggests the amendments apply to existing contracts, but does not specifically state that they apply to claims that had arisen before March 31, 2025.

Two considerations reinforced the conclusion that the statute was insufficiently clear to be interpreted as being retroactive.

First, the transitional provision contained no express indication of retroactive application. For example, in another BC Court of Appeal case, the transitional provision explicitly stated the legislation was "retroactive to the extent necessary to give full force and effect to its provisions”⁶. This language was absent from the amendments at issue in the present case.

Second, in a legislative debate regarding the amendments, the Attorney General explained that the amendments were “not retroactive” but rather “retrospective”. The Court found reliance on Hansard appropriate given the interpretative task at hand.

The Court accordingly confirmed that the amendments apply to consumer contracts that pre-date March 31, 2025, but only with respect to disputes that arise after that date. The appellant's dispute, having arisen prior to March 2025, was not affected by the amendments, and the stay ordered by the Chambers judge was upheld.

Implications

Vandenbosch provides important clarity for businesses in British Columbia that include arbitration clauses in their consumer contracts, and for the consumers who are party to them.

• The BPCPA amendments apply to new disputes. Businesses facing pre-existing consumer disputes that arose prior to the amendments coming into force may continue to rely on arbitration agreements entered into before March 31, 2025.
• The Legislature can and does have the power to enact retroactive legislation, but must say so clearly. The Court's analysis reinforces that parties asserting that legislation was intended to be retroactive bear a heavy burden. Express language is required to give legislation retroactive effect.