July 6, 2020
On June 26, 2020, the Supreme Court of Canada released Uber Technologies Inc. v. Heller, a much-awaited decision regarding the enforceability of an arbitration clause in Uber’s standard form driver agreement. The decision is tremendously important for those involved in the gig economy. The gig-economy is where individuals engage in temporary and flexible jobs often through online platforms and apps to provide services like ride-sharing, food and package delivery, and pet sitting.
In the decision, the Court held that the arbitration clause in the agreement between Uber and a food delivery driver was so unfair it was unenforceable, which will now permit a sizeable class-action lawsuit against Uber in Ontario to proceed. The decision has significant implications for many commercial contexts, but it is especially important for employers that rely on standard form agreements and contract with workers online.
The Court did not answer whether the Ontario Employment Standards Act (ESA) applied to the agreement between Uber and the food delivery driver. Accordingly, the issue of whether Uber drivers are employees or contractors remains for determination in the class action in Ontario, the outcome of which could have a massive effect on the gig-economy.
Background
David Heller provided food delivery services in Toronto through the Uber Eats food delivery app. To become a food delivery driver for Uber, Heller had to accept online, without negotiation, the terms of Uber’s standard form Agreement. The Arbitration Clause in the Agreement provided that Heller was required to resolve any dispute with Uber through mediation and arbitration in the Netherlands, which required up-front administrative and filing fees of $14,500 (USD) that were not specified in the Arbitration Clause.
In 2017, Heller commenced a class action in Ontario against Uber for alleged violations of the ESA. Uber brought a motion to stay the class action in Ontario arguing that the dispute had to proceed by arbitration in the Netherlands under the Arbitration Clause. Heller contended that the Arbitration Clause was invalid for two reasons. First, the Arbitration Clause was unconscionable – which is where a contract or term of a contract is invalid if it is significantly unfair or one-sided. Second, the Arbitration Clause contracted out of mandatory provisions of the ESA. The judge sided with Uber. Heller appealed the decision.
The Ontario Court of Appeal allowed the appeal and found that the Arbitration Clause was unconscionable because of the difference in bargaining power between Heller and Uber and the previously undisclosed and significant costs associated with an arbitration under the Arbitration Clause.
The Supreme Court of Canada agreed with the Ontario Court of Appeal and held that the Arbitration Clause was unenforceable as it was unconscionable because it made it essentially impossible for Heller to arbitrate the dispute with Uber thereby depriving him of essentially any remedy under the Agreement.
Unconscionability
In the decision, the Court confirmed that if parties agree to resolve disputes through arbitration in an agreement, courts should respect such arbitration agreements or clauses and preclude matters arising out of the agreement to proceed through the courts. However, there are exceptions, such as if the arbitration agreement or clause is invalid. One reason for the invalidity of an arbitration agreement or clause is unconscionability. If a court finds that an arbitration agreement or clause is unconscionable, the court can set aside the arbitration agreement or clause and the matter arising out of the agreement can proceed through the courts. For unconscionability to apply there must be an inequality of bargaining power between the parties and the contract or offending clause must be sufficiently one-sided at the time of contracting such that the bargain is unconscionable (in other words, unreasonably unfair).
Inequality of bargaining power will exist when one party cannot adequately protect their interests in the contracting process and may include differences in wealth, knowledge, experience or capabilities that impair a party’s ability to freely enter or negotiate a contract. Examples of this include where a party has no choice but to enter into an agreement or does not understand the contract they are signing. This does not require proving the stronger contracting party knowingly took advantage of the weaker contracting party. However, one party knowingly taking advantage of another’s vulnerability provides strong evidence of the inequality of bargaining power. Further, the Court found that the existence of a significant advantage or disadvantage under the contract in itself, as existed here, could establish an inequality in bargaining power between the parties.
A contract is one-sided if it significantly advantages or disadvantages a contracting party. To assess this, courts are to look at the surrounding circumstances during contract formation and consider things such as the market price, the commercial setting and the position of the parties. For example, if the price of goods or services significantly departs from the usual market price or the terms of the contract are manifestly unfair, the contract may be one-sided.
The Court also cautioned that a standard form contract, by itself, does not establish an inequality of bargaining power or unconscionability. Standard form contracts are in many instances both necessary and useful. However, standard form contracts can impair a party’s ability to protect their interests in the contracting process and make them more susceptible to challenge as one party drafts the contract and may include provisions that are difficult to read or understand or otherwise buried in excessively long agreements. Clauses such as choice of law, forum selection and arbitration clauses in standard form contracts can deprive a party of remedies and are prone to be unconscionable.
Rather than find any particular inequality in bargaining power between Heller and Uber, the majority of the Court appears to have found that the Agreement and the Arbitration Clause gave rise to an inequality in bargaining power in the circumstances. Two justices of the Court did not agree with the majority’s findings regarding unconscionability. For different reasons, the justices were concerned that the majority was overextending the doctrine of unconscionability to a point where it would apply far too frequently.
The Arbitration Clause
There was an inequality of bargaining power between Uber and Heller concerning the Arbitration Clause. The Arbitration Clause was part of a standard form contract. Heller could not negotiate any of the terms of the Agreement. He could only accept or reject the Agreement and Heller, a food delivery driver agreeing to an online form, lacked the sophistication to understand the Arbitration Clause and its potential implications, which Uber worsened by not providing information in the Agreement about the costs of mediation and arbitration in the Netherlands.
The Arbitration Clause was also one-sided. The mediation and arbitration under the Arbitration Clause required $14,500 (USD) in up-front administrative fees, an amount close to all of Heller’s annual income, without factoring in the additional costs of travel, accommodation, representation and lost wages to arbitrate under the Arbitration Clause. These costs were disproportionate to the size of an arbitration award that Heller could have reasonably foreseen when he entered into the Agreement. Further, the Arbitration Clause deprived Heller of all his rights under the Agreement because to enforce any of those rights he had to travel to the Netherlands, initiate an arbitration, pay the required fees and then receive an arbitral award. No reasonable person who had understood and appreciated the implications of the Arbitration Clause would have agreed to it.
Given the Court held the Arbitration Clause was invalid as it was unconscionable, the majority of the Court did not consider whether the Arbitration Clause was also invalid because it contracted out of the ESA. In a dissenting opinion, one justice of the Court held that the Arbitration Clause did not contract out of the ESA because the ability to file a complaint under the ESA in her view was not an employment standard.
Key Takeaways
This decision is going to have an impact on employers that rely on one-sided arbitration clauses and other clauses in employment agreements to deprive employees of certain remedies because such clauses may be subject to challenge or are unenforceable. This is particularly the case where an employer relies on online standard form agreements where employees agree by digital signature or checking a box. In the wake of this decision, employers should:
Please contact your McInnes Cooper lawyer or any member of our Labour & Employment Team @ McInnes Cooper to discuss this topic or any other legal issue.
McInnes Cooper has prepared this document for information only; it is not intended to be legal advice. You should consult McInnes Cooper about your unique circumstances before acting on this information. McInnes Cooper excludes all liability for anything contained in this document and any use you make of it.
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The employment contract, at its core, is an exchange of work for compensation. So at a very basic level, employers are entitled to expect…
Jul 29, 2015
On July 27, 2015, the Federal Court of Canada decided a lawsuit by medical marijuana program participants against the Federal Government…
Jul 21, 2015
On July 16, 2015, the New Brunswick Court of Appeal ordered an insurer to produce a significant amount of its financial and business information…
Jun 25, 2015
We updated this publication on October 4, 2023. Most people know a company itself has occupational health and safety (OHS) obligations and…
Jun 2, 2015
Effective April 22, 2015 the NS Government enacted the NS Missing Persons Act, lowering the threshold for police to get an order to access…
Apr 2, 2015
The market for the sale and the supply of goods is a global one for many businesses in today’s economy. Both exporting goods from Canada and…
Mar 31, 2015
This publication has been updated as at June 24, 2021. Women make up close to half of the employed workforce: in 2019, Canadian women 15…
Mar 25, 2015
On March 3, 2015 Canada’s Privacy Commissioner determined that Health Canada breached privacy laws by mailing letters to over 40,000 Marihuana…
Mar 6, 2015
On March 5, 2015, the Canadian Radio and Television Commission (the CRTC, the main agency charged with administering and enforcing most of CASL)…
Feb 18, 2015
The new NS Limitations of Actions Act – the legislation that determines the limitation period (time limit) in which a lawsuit must be started…
Feb 13, 2015
This publication has been updated as at January 26, 2022. With people spending so many of their waking hours at or connected to work these…
Feb 2, 2015
On January 30, 2015 the Supreme Court of Canada decided that the Canadian Charter of Rights and Freedom’s protection for freedom of…
Jan 30, 2015
In December 2014, the NL Supreme Court ordered an employer to pay its former employee $30,000 in moral damages to compensate him for the mental…
Jan 26, 2015
NOTE: Substantial changes to Canada’s Trademarks Act took effect on June 17, 2019 Learn more at New Canadian Trademarks Regime Effective June…
Dec 11, 2014
On December 11, 2014 the Supreme Court of Canada continued its trend to recognize privacy rights – and develop the law to protect them –…
Dec 11, 2014
On January 15, 2015, the software provisions of Canada’s Anti-Spam Legislation (CASL) will take effect. CASL’s anti-spam sections, touted…
Dec 5, 2014
We udpated this publication on December 11, 2020. Employers host numerous events throughout the year – summer and holiday office parties,…
Dec 1, 2014
The construction industry - project owners, contractors, subcontractors and trades - might be relaxing, ignoring the hype around Canada’s…
Nov 27, 2014
Recently, the NS Court of Appeal confirmed that a union can be certified as the bargaining agent of employees based merely on their dependence…
Nov 14, 2014
On November 13, 2014, the Supreme Court of Canada (SCC) effected a significant development in Canadian contract law by recognizing the…
Nov 3, 2014
Note: On November 20, 2014 the NS Government passed the final form of Bill 64, Limitations of Actions Act into law. The final form of the Act…
Oct 14, 2014
CASL’s anti-spam sections came into force on July 1, 2014. Every organization that CASL affects should now be complying with it – and their…
Sep 30, 2014
Effective September 1, 2014 the NB government implemented five important changes to the NB Employment Standards Act – the minimum standards…
Sep 9, 2014
Effective October 1, 2014, the New Brunswick Rules of Court will change – some Rules for the first time since they came into effect in 1982.…
Aug 1, 2014
Most Canadians have heard about Canada’s Anti-Spam Legislation (CASL): we’ve been bombarded with “CASL Compliant” emails asking us to…
Jul 9, 2014
On June 20, 2014 the Federal Government announced a major overhaul of Canada’s Temporary Foreign Worker Program. With stringent enforcement…
Jun 16, 2014
On June 13, 2014 the Supreme Court of Canada decided that Canadians have a reasonable expectation of privacy in their online activities, and…
Jun 12, 2014
The countdown to CASL is almost over: there are only 13 business days until the anti-spam provisions of CASL – and most of the penalties for…
Jun 11, 2014
Note: For an update on Crowdfunding, read: New Kid on the Block – Crowdfunding Joins Traditional Equity-Based Funding Options for Start-ups…
May 26, 2014
On May 23, 2014 the Federal Court of Canada decided the Federal Treasury Board Secretariat’s interpretation of the policy for compensating…
May 8, 2014
On July 1, 2014 – less than two months from now - the anti-spam sections of Canada’s Anti-Spam Legislation (CASL) take effect. Individuals…
Apr 15, 2014
The countdown to CASL is on: on July 1, 2014, the anti-spam sections of Canada’s Anti-Spam Legislation (“CASL”) take effect. Individuals…
Apr 3, 2014
On March 28, 2014 the Federal Government tabled Bill C-31 to implement the 2014 Federal Budget – including broad authority to impose cash…
Mar 19, 2014
As organizations turn to cloud computing services, ensuring compliance with legislation and reducing privacy risks is key. In Canada, there is…
Feb 28, 2014
On July 1, 2014, the anti-spam sections of Canada’s Anti-Spam Legislation (aka “CASL”) will take effect. CASL is: Broad. It applies…
Feb 28, 2014
On July 1, 2014, the anti-spam sections of Canada’s Anti-Spam Legislation (aka “CASL”) take effect. CASL will apply to just about every…
Jan 21, 2014
On December 31, 2013, amendments to the Immigration and Refugee Protection Regulations and new Ministerial Instructions changing the Federal…
Nov 8, 2013
On November 7, 2013, the SCC decided police require specific authorization in a search warrant to search the data in a computer because of the…
Jul 2, 2013
On June 14, 2013, the Supreme Court of Canada’s decision in Communications, Energy and Paperworkers Union of Canada, Local 30 v. Irving Pulp…
May 21, 2013
In its April 2013 decision in Re Stan, the Alberta Securities Commission provides issuers with a practical approach to the assessment of both a…
Apr 30, 2013
Note: Effective December 31, 2013, the Federal Government made additional changes to the Federal Temporary Foreign Worker Program. Click here to…
Jan 8, 2013
On November 19, 2012, the Supreme Court of Canada (SCC) unanimously ruled a B.C. public school system’s failure to provide adequate and…
Nov 28, 2012
On October 19, 2012 the Supreme Court of Canada (SCC) decided that a teacher criminally charged with possession of child pornography and…
Oct 22, 2012
Mr. Cole was a high school teacher with an employer owned and issued laptop computer. He also used it for incidental personal purposes, which…
Jul 10, 2012
On March 16, 2012, the Supreme Court of Canada (“SCC”) confirmed the decision of the N.S. Court of Appeal, reinstating the N.S. Human Rights…
Jun 14, 2012
As any Canadian knows, July 1st – Canada Day – is the first long weekend of the summer; or is it? This year, July 1st falls on a Sunday. …
Mar 1, 2012
Social media represents a profound cultural shift and employers must adapt if they want to avoid unnecessarily – and potentially costly –…
Jan 5, 2012
Effective January 1, 2012, NS’s Human Rights Commission will receive, investigate and handle complaints under NS’s Human Rights Act under a…
Dec 19, 2011
In a decision with application to Atlantic Canada, the Ontario Court of Appeal found that an employer’s multiple extensions of a terminated…
Aug 6, 2011
Note: On June 14, 2013 the Supreme Court of Canada issued its decision in Communications, Energy and Paperworkers Union of Canada, Local 30 v.…
May 6, 2011
In March 2011, the Ontario Court of Appeal found that an employee had a limited expectation of privacy in the contents of a work computer. The…
Apr 7, 2011
Note: Click here to read an updated version of this Legal Update in Cloud Computing: A Privacy FAQ as seen in as seen in CCCA Magazine, Spring…
Mar 6, 2011
In the midst of a sea of change, the Federal Government has enacted Regulatory changes significantly impacting employers who hire foreign…
Mar 6, 2009
“Contamination Claims: Long Tails or Just Dogs? Practical and Legal Issues of Litigating Contaminant Slow-Leak Cases”, Cdn Journal of…
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