June 29, 2020
Professor cited in SCC decision Uber Technologies Inc. v. Heller
Professor Jonnette Watson Hamilton's McGill Law Journal article was cited in the June 26 decision.
According to Supreme Advocacy LLP, "In 2017, H started a class proceeding against Uber in Ontario for violations of employment standards legislation. Uber brought a motion to stay the class proceeding in favour of arbitration in the Netherlands, relying on the arbitration clause in its services agreement with H. H argued that the arbitration clause was unconscionable and therefore invalid. The motion judge stayed the proceeding, holding that the arbitration agreement’s validity had to be referred to arbitration in the Netherlands, in accordance with the principle that arbitrators are competent to determine their own jurisdiction. The Court of Appeal allowed H’s appeal and set aside the motion judge’s order. It concluded that H’s objections to the arbitration clause did not need to be referred to an arbitrator and could be dealt with by a court in Ontario. It also found the arbitration clause to be unconscionable, based on the inequality of bargaining power between the parties and the improvident cost of arbitration."
The Court cites Jonnette's "Pre-Dispute Consumer Arbitration Clauses: Denying Access to Justice?" (2006) 51 McGill Law Journal 693 about some of the ways that arbitration agreements are insulated from meaningful challenges. The court rejected the validity of an arbitration clause between Uber and a driver on the basis of inequality of bargaining power.