On May 23, 2019, the Supreme Court of Canada granted leave
to appeal in Uber Technologies Inc., et al. v. David
Heller (the Uber Class Action). At issue is an arbitration
clause in the Uber driver service agreement that requires all
claims be arbitrated in the Netherlands, regardless of size.
Canadian courts have long enforced arbitration agreements freely
entered into, even in contracts of adhesion, subject to legislative
restrictions. The Supreme Court’s decision has the potential
to clarify the extent of exceptions to this principle in the
context of contracts where there may be power imbalances.
Therefore, the decision may have important implications beyond the
employment context in scenarios where the power of the contracting
parties may be unequal, but applicable legislation does not
preclude mandatory arbitration — for example, consumer
contracts (other than in Ontario, where mandatory arbitration
clauses are precluded by the Consumer Protection Act)
