A Click Is Not Enough: The Superior Court Declines To Enforce Arbitration Agreement

Why this decision matters

In Lochan v. Binance Holdings Limited,¹ the Ontario Superior Court of Justice declined to stay a class proceeding against a crypto currency trading platform in favour of arbitration.

In so doing, the Court held that the arbitration agreement embedded in the trading platform website — which, at the time the litigation was launched, required arbitration in Hong Kong, under Hong Kong law — was both unconscionable and contrary to public policy as it effectively turned "arbitration into a vehicle for circumventing the consumer protection provisions of Ontario's securities legislation."

As this decision illustrates, following the Supreme Court of Canada's lead in Uber Technologies Inc v. Heller,² courts may be reluctant to enforce arbitration provisions in online "click" contracts where those provisions are prima facie onerous or unfair, or appear to be designed to deprive adherents — especially consumers or members of public — of