Class Action Prevails Over Arbitration In Pokornik v. SkipTheDishes

When can parties unilaterally implement arbitration clauses "after the fact" to cover existing claims?

Earlier this year, a class action was certified against Uber despite a late-breaking amendment to the underlying agreement that would have included an arbitration clause. In that case, the court left the effect of the arbitration clause to the common issues judge. More recently, a Manitoba court concluded that part of the "specific purpose" of such an arbitration clause was to prevent putative class action proceedings, and the defendant company "would obtain an unfair advantage" if the arbitration clause was enforced to terminate the plaintiff's proposed class action: Pokornik v. SkipTheDishes Restaurant Services Inc., 2022 MBKB 178. Justice Chartier specifically noted the arbitration provision did not permit class arbitration.