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ARTICLE · 29 JUNE 2020

Dutch Forum Clause Does Not Amount To Much: Supreme Court Says That Uber Arbitration Clause Is Unconscionable

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In a much-anticipated decision released on June 26, 2020, the Supreme Court of Canada has changed the law with respect to the doctrine of unconscionability.

CanadaLitigation, Mediation & Arbitration
Calen Nixon
Calen Nixon
Tristan Culham
Tristan Culham
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In a much-anticipated decision released on June 26, 2020, the Supreme Court of Canada has changed the law with respect to the doctrine of unconscionability. By doing so this has allowed a proposed class action lawsuit by Uber and UberEATS drivers to proceed.

There will undoubtedly be ramifications to the way consumer contracts are interpreted in Canadian courts moving forward particularly with respect to arbitration clauses and forum selection clauses. Further, this paves the way for other potential legal challenges made by "gig economy" contract workers with respect to employment standards.

Background

The nominal plaintiff of the proposed class, David Heller, was an UberEATS delivery driver who had entered into a 15-page UberEATS driver services agreement with an Uber affiliate by clicking yes to confirm acceptance on his mobile device. The services agreement contained a commercial arbitration clause providing that any disputes are to be resolved pursuant to

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