Enforcing Arbitration Agreements: Ontario Superior Court Raises A 'Clause' For Concern

When the Court of Appeal for Ontario held in Heller v Uber Technologies Inc. that arbitration clauses are invalid if they purport to contract out of entitlements required by the Employment Standards Act, 2000 ("ESA") – a decision upheld by the Supreme Court of Canada – Ontario employers were left concerned about the enforceability of existing arbitration clauses. In Nohdomi v. Callidus Capital Corporation¹, the Ontario Superior Court has provided further guidance on the interpretation of arbitration clauses in employment agreements and confirmed that an arbitration clause is invalid and unenforceable if it contracts out of the ESA.

Background Facts

The plaintiff employee and his employer, the Catalyst Capital Group Inc. ("Catalyst") entered into an employment agreement that contained an arbitration clause requiring all claims arising from the employment relationship to be settled by way of arbitration in accordance with the Rules for the Conduct of Arbitrations