The application judge stated that the cost-sharing provisions of the franchise agreement did not apply to all costs associated with drains. “Municipal works” is not defined in the
franchise agreement. Moreover, the Gas Franchise Handbook,
to which the franchise agreement refers, states that the cost-sharing mechanism will apply “in most circumstances”, suggesting it will not always apply. He noted that the franchise agreement provides that it is subject to “the provisions of all
regulating statutes”, which includes the Act.
 The application judge ordered Union to pay the full cost of
the gas pipeline relocation. The clear and unambiguous language of the engineer’s report was that Union would bear the
full cost of any utility relocation, and Union did not appeal the
report despite a right to do so under s. 48 of the Act.
Discussion and Analysis
 In my view, the application judge erred in his analysis
and in the result. First, I address his conclusion that the Act
overrides the provisions of the franchise agreement.
 The foundation of this conclusion is the application
judge’s interpretation of Seidel as standing for a general principle that “no mere contract inter partes can take away that which
the law has conferred”. There is no such general principle, and
the application judge was not correct in his interpretation of
what was said, or quoted from, in Seidel.
 In Seidel, the court considered whether a provision in a
cellphone service agreement requiring arbitration of claims was
enforceable when B.C. consumer protection legislation expressly
prohibited contracting out of its terms. In the course of the
minority judgment, and before turning to the modern approach
to arbitration, LeBel and Deschamps JJ. described the courts’
traditional hostility towards arbitration as contrary to public
policy, because it was seen to challenge the jurisdiction of the
courts. It was in this context that they quoted a passage from
the 1918 decision in Brand, which stated in part [at para. 91]:
The true ground for holding that the jurisdiction of the courts cannot be
ousted by an agreement between parties is that the courts derive their
jurisdiction either from the statute or common law, and no mere contract
inter partes can take away that which the law has conferred.
 The traditional view that parties could not, by contracting
for arbitration, “oust” the jurisdiction of the courts has been
overtaken by modern authorities, including Seidel itself, recognizing that arbitration clauses will be enforced absent legislative
language to the contrary (at para. 42).