Ted's Blog


Supreme Court of Canada finds Uber arbitration clause unconscionable, invalid.

"H provides food delivery services in Toronto using Uber’s software applications. To become a driver for Uber, H had to accept the terms of Uber’s standard form services agreement. Under the terms of the agreement, H was required to resolve any dispute with Uber through mediation and arbitration in the Netherlands. The mediation and arbitration process requires up-front administrative and filing fees of US$14,500, plus legal fees and other costs of participation. The fees represent most of H’s annual income.

In 2017, H started a class proceeding against Uber in Ontario for violations of employment standards legislation. Uber brought a motion to stay the class proceeding in favour of arbitration in the Netherlands, relying on the arbitration clause in its services agreement with H. H argued that the arbitration clause was unconscionable and therefore invalid. The motion judge stayed the proceeding, holding that the arbitration agreement’s validity had to be referred to arbitration in the Netherlands, in accordance with the principle that arbitrators are competent to determine their own jurisdiction. The Court of Appeal allowed H’s appeal and set aside the motion judge’s order. It concluded that H’s objections to the arbitration clause did not need to be referred to an arbitrator and could be dealt with by a court in Ontario. It also found the arbitration clause to be unconscionable, based on the inequality of bargaining power between the parties and the improvident cost of arbitration."

The SCC (8:1, with joint reasons by Abella and Rowe JJ., separate concurring reasons by Brown J., and dissenting reasons by Côté J.)
dismissed the appeal.

Supreme Court Confirms That Workplace Safety Can Supersede Freedom Of Religion

In . . . [September] 2019, . . . the Quebec Court of Appeal dismissed the application of three Sikh truckers who challenged a company policy requiring them to wear a safety helmet over their turban in certain circumstances.

This decision is now final since, on April 30, 2020, their application for leave to appeal to the Supreme Court was
dismissed without reasons, as is the norm in such circumstances. Read More...