There is no doubt that this decision will give rise to further disputes concerning the validity of the arbitration agreements. The justifications of the majority and Brown J. give little indication of what is ruthless and what is contrary to public order in arbitration agreements. Inventive lawyers will use this lack of instructions to build arguments if their clients regret the forum chosen for their arbitration or, for some other reason, prefer legal process to arbitration. More litigation is also to be expected regarding a “superficial” revision of the documentation. David Heller entered into an agreement on 7 June 2016 with Rasier Operations B.V. and, on 15 December 2016, another agreement with Uber Portier B.V. and worked as a restaurant driver with Uber apps and earned between $400 and $600 a week, or US$20,800 to US$31,200 a year before taxes and expenses for a 40- to 50-hour work week. The lawsuit claims that Uber drivers are employees and not independent contractors and should therefore be entitled to benefits under Ontario`s Employment Standards Act. The majority of the Supreme Court of Canada found that there was a clear inequality of bargaining power. While the majority made it clear that standard form agreements are not inherently flawed and ruthless, Heller was powerless under these terms to negotiate terms, there was a significant “sophistication gap,” there was no information about mediation and arbitration fees in the standard form agreement, and the arbitration rules were not attached. Chris, with respect to your observation: “This ignores in particular other reasons why parties often include arbitration clauses in their agreements: ensuring that decision-makers have the necessary expertise, the legitimacy of decisions resulting from party-led processes, and confidentiality.” Certainly, no party would choose arbitration for any of the reasons you mentioned, knowing that actual arbitration would always be out of its reach.
Contrary to the judge`s decision, the Supreme Court of Canada held that the Ontario Arbitration Act, and not the International Commercial Arbitration Act, which was to govern only international and commercial agreements, was applicable and that this dispute had an employment relationship. In derogatory reasons, Justice Suzanne Côté noted that out-of-court settlements should be binding, but also said Uber`s agreement with drivers should be changed and the company should enforce registration fees to allow Heller to begin an arbitration process. Conceptually, Heller contrasted CSC`s historical action in consumer and group protection with its historical respect and promotion of arbitration as an alternative dispute resolution mechanism, which complements the work of the courts. Apparently prioritizing the former over the latter, the majority held that the courts` compliance with arbitration was based on the fact that it was an inexpensive and efficient procedure, so arbitral provisions should not be applied if they did not offer those benefits. In particular, this ignores other reasons why parties often include arbitration clauses in their agreements: ensuring appropriate expertise for decision-makers, the legitimacy of decisions resulting from party-led processes, and confidentiality. In this case, a person hired as an UberEATS delivery driver filed a class action in Ontario to find that the Uber and UberEATS drivers were employees within the meaning of the ESA and were therefore entitled to the benefits granted to workers under the legislation. . . .