Supreme Court – courts should not refer jurisdiction challenge to arbitrator if real prospect that challenge might never be resolved

In Uber Technologies Inc. v. Heller, 2020 SCC 16, the Supreme Court of Canada introduced a third exception to its general rule that jurisdiction challenges should be referred first to the arbitrator. The exception contemplates scenarios in which validity of the arbitration agreement might not be determined if arbitration is too costly or inaccessible due to costs, distance or even a choice of law clause circumventing mandatory local policy.  Staying an action in favour of arbitration would deny relief for claims made under the agreement and insulate disputes from resolution.  The Court also asserted that unconscionability involves both inequality and improvidence but does not require intention.  The Court further confirmed that employment disputes are not “commercial” for the purpose of the International Commercial Arbitration Act, RSO 1990, c I.9.

Respondent, Mr. David Heller (“Mr. Heller”) and four (4) Appellants, Uber Technologies Inc., Uber Canada, Inc., Uber B.V. and Rasier Operations B.V., (“Uber”) disputed the role of an agreement to arbitrate contained in a standard form services agreement. 

Mr. Heller, a food delivery driver residing/working in Ontario, accessed an app supplied by Uber (“Uber app”) and, further to twice clicking “I agree”, activated the Uber app, thereby binding himself to a services agreement accessible to him as a driver through the Uber app.

For a fuller summary of the facts, as well as the issues raised and decided in the Ontario Court of Appeal decision in Heller v. Uber Technologies Inc., 2019 ONCA 1, see the earlier Arbitration Matters note “Determination of exceptions to mandatory stay are for court to make and not arbitrator”. 

In addition to the snapshot provided at paras 6-7 of the Supreme Court’s reasons, see the further details included in the Ontario Court of Appeal’s own summary in its Heller v. Uber Technologies Inc., 2019 ONCA 1 of (i) at paras 5- 6, the nature of Uber’s ride sharing services and food delivery services and (ii) at paras 7-8, the manner in which a driver creates an online accounts to qualify to provide services to Uber’s customers.  The latter outline identifies the summary fashion by which a driver would accept the terms of the Driver Service Agreement (“DSA”) or UberEATS Service Agreement (“UESA”) between a driver and Uber (the “Contracts”) which set out the terms and conditions for over 15 pages for the DSA and 16 pages for the UESA.

In his proposed class action, Mr. Heller sought a declaration that (i) drivers in Ontario who use/used the Uber app to provide food delivery services and/or personal transportation services are “employees” of Uber and subject to the provisions of Ontario’s Employment Standards Act, 2000, SO 2000, c 41 (“ESA”), (ii) Uber violated provisions of the ESA and (iii) the arbitration agreement contained in the DSA or UESA between drivers and Uber are void and unenforceable.

The arbitration agreement reads as follows:

Governing Law; Arbitration. Except as otherwise set forth in this Agreement, this Agreement shall be exclusively governed by and construed in accordance with the laws of The Netherlands, excluding its rules on conflicts of laws. . . . Any dispute, conflict or controversy howsoever arising out of or broadly in connection with or relating to this Agreement, including those relating to its validity, its construction or its enforceability, shall be first mandatorily submitted to mediation proceedings under the International Chamber of Commerce Mediation Rules (“ICC Mediation Rules”). If such dispute has not been settled within sixty (60) days after a request for mediation has been submitted under such ICC Mediation Rules, such dispute can be referred to and shall be exclusively and finally resolved by arbitration under the Rules of Arbitration of the International Chamber of Commerce (“ICC Arbitration Rules”). . . . The dispute shall be resolved by one (1) arbitrator appointed in accordance with ICC Rules. The place of arbitration shall be Amsterdam, The Netherlands. . . .

As motions judge, Mr. Justice Paul M. Perell in Heller v. Uber Technologies Inc., 2018 ONSC 718 stayed the proceeding in favour of arbitration provided in the Contracts. On appeal, Ontario’s Court of Appeal reversed in Heller v. Uber Technologies Inc., 2019 ONCA 1. The Court of Appeal determined that (i) the arbitration agreements contained in service agreements between drivers and Uber qualified as illegal contracting out of Ontario’s Employment Standards Act, 2000, SO 2000, c 41 (“ESA”), and (ii) the arbitration agreements were unconscionable and invalid. In doing so, the Court provided new guidance for drafting arbitration clauses applicable to non-employment contracts and to their enforceability.

Uber appealed.  The Supreme Court dismissed the appeal 8:1. Madam Justice Rosalie S. Abella and Mr. Justice Malcolm Rowe co-authored the majority’s reasons, paras 1-100.  Mr. Justice Russell Brown concurred in the result but issued a separate set of reasons limiting his agreement to determining that the arbitration agreement is invalid but declined to apply the doctrine of unconscionability to do so, paras 101-176. Madam Justice Suzanne Côté dissented, paras 177-338.

Abella J./Rowe J. , writing for the majority, (“the Court”) – The Court introduced its analysis by resolving a disagreement which had lingered from the onset of the proceedings in the Ontario court.  Mr. Heller argued that the Arbitration Act, 1991, SO 1991, c 17 (“AA”) applied whereas Uber argued that the International Commercial Arbitration Act, 2017, SO 2017, c 2, Sch 5 (“ICAA”) did. 

The Court agreed with Mr. Heller.  “The parties’ dispute is fundamentally about labour and employment. The ICAA was not meant to apply to such cases”.

To make its determination, the Court first asserted the nature of how the AA and ICAA interact. Referencing section 2(2) of the AA, the Court stated that the “ICAA and AA are exclusive. If the ICAA governs this agreement, the AA does not, and vice versa”.  It acknowledged that the “agreement” was “international” but questioned whether it was also “commercial”.

To determine whether the ICAA applies, a court must first examine the nature of the parties’ dispute and do so by analysing the pleadings rather than make findings of fact about the nature of their relationship.

Characterising a dispute requires the decision-maker to examine only the pleadings; characterising a relationship requires the decision-maker to consider a variety of circumstances in order to make findings of fact. If an intensive fact-finding inquiry were needed to decide if the ICAA or the Model Law applies, it would slow the wheels of an arbitration, if not grind them to a halt”.

The court must next determine if the dispute qualifies as “commercial” and, in the circumstances before it, the Court determined that “an employment dispute is not covered by the word”.  The Court’s review of the Analytical Commentary on Draft Text of a Model Law on International Commercial Arbitration: Report of the Secretary-General pp 10 and 11 underscored the omission of any mention of “employment”.

Further, one could draw a negative inference from the definition’s omission of “employment” relations (p. 309, fn. 454). It seems unlikely to us that the drafters of the Model Law would have included such a thorough list of included commercial relationships and not considered whether to include “employment””.

It concluded that employment disputes are not covered by the ICAA and the AA applies.

To stay or not stay the proceedings – Section 7(2) of the AA enumerates five (5) circumstances in which a court has discretion to retain jurisdiction and decline to stay proceedings, but only one (1) applied, namely para. 2 of section 7(2). That provision stipulated that a court “may refuse to stay” the proceeding in a case in which “[t]he arbitration agreement is invalid”.

In the absence of any list of principles in the AA to guide the courts’ exercise of discretion under section 7(2), the Court referred to “some criteria” set out in Dell Computer Corp. v. Union des consommateurs, 2007 SCC 34 (CanLII), [2007] 2 S.C.R. 801 and Seidel v. TELUS Communications Inc., 2011 SCC 15 (CanLII), [2011] 1 S.C.R. 531 which arose when interpreting “similar arbitration regimes” in Québec and B.C.  In referring to Dell Computer Corp. v. Union des consommateurs, the Court held that the earlier cases from it mention when the court “normally” should refer the dispute to arbitration.  The Court wrote that the approach stemming from those cases is “neatly summarized” in Rogers Wireless Inc. v. Muroff, 2007 SCC 35 (CanLII), [2007] 2 S.C.R. 921 para. 11 which it reproduces at its own para. 34.

Despite the reiteration of the term “superficial” in qualifying which types of review the courts can engage in when examining documentary proof in the record, the Court noted that Dell Computer Corp. v. Union des consommateurs and Seidel v. TELUS Communications Inc. provide no definition of what is meant by “superficial”.  That definition involves an “essential question” namely “whether the necessary legal conclusions can be drawn from facts that are either evident on the face of the record or undisputed by the parties”.  See Trainor v. Fundstream Inc., 2019 ABQB 800 para. 23 and Alberta Medical Association v. Alberta, 2012 ABQB 113 para. 26.

At paras 35-36, the Court identified a gap in what is meant by a “superficial” review but also reframed the courts’ discretion as having to answer question as an “essential question”, the Court lay the ground for its eventual invitation for a single affidavit a “narrowly focused” hearing.

New scenario, third exception introduced – The Court next identified a scenario which Dell Computer Corp. v. Union des consommateurs “did not contemplate”, in particular, “a scenario wherein the matter would never be resolved if the stay were granted”.  This newly-discovered scenario raised the issue of access of justice which the legislature could not have intended to create when granting courts discretion to refuse a stay.

Dell Computer Corp. v. Union des consommateurs assumed that, if a court did not decide the issue, an arbitrator would but “did not contemplate a scenario wherein the matter would never be resolved if the stay were granted”.

The Court acknowledged that challenges to the validity of arbitration agreements may be delaying rather than bona fide.  The Court reassured at paras 42-43 that challenges which are a “misuse of the court processes for improper ends” can be prevented by the courts.

[44] How is a court to determine whether there is a bona fide challenge to arbitral jurisdiction that only a court can resolve? First, the court must determine whether, assuming the facts pleaded to be true, there is a genuine challenge to arbitral jurisdiction. Second, the court must determine from the supporting evidence whether there is a real prospect that, if the stay is granted, the challenge may never be resolved by the arbitrator”.

Though the latter determination “must not devolve into a mini-trial”, the courts must determine whether “there is a real prospect, in the circumstances, that the arbitrator may never decide the merits of the jurisdictional challenge”.  The Court then purported to identify how to avoid the mini-trial and still assess whether that prospect of no access to justice is real. “Generally, a single affidavit will suffice”. And, the courts must “remain alert” to attempts “to expand the record” and, with counsel, remain “responsible for ensuring the hearing remains narrowly focused”.

The Court then summed up the rule to address what earlier cases had not considered as a scenario:

[46] As a result, therefore, a court should not refer a bona fide challenge to an arbitrator’s jurisdiction to the arbitrator if there is a real prospect that doing so would result in the challenge never being resolved. In these circumstances, a court may resolve whether the arbitrator has jurisdiction over the dispute and, in so doing, may thoroughly analyze the issues and record”. 

The Court concluded that it would resolve the validity of the arbitration agreement rather than follow the general rule of referring them to arbitration.  In doing so, it observed at para. 49 “that departing from the general rule of arbitral referral in these circumstances has beneficial consequences” including prevent “contractual drafters from evading the result in this case through a choice of law clause” which is “a significant loophole for contractual drafters to exploit”.  The Court acknowledged the possibility that, had either party lead evidence on Dutch law and its rules on unconscionability, it would have lead to a different result on who had first determination of unconscionability.

Unconscionability – Beginning at para. 53, the Court then addressed Mr. Heller’s argument that the arbitration agreement was unconscionable, pointing to TELUS Communications Inc. v. Wellman at para. 85 in which the Court had directed that “arguments over any potential unfairness resulting from the enforcement of arbitration clauses contained in standard form contracts are better dealt with directly through the doctrine of unconscionability”.

The Court agreed with Mr Heller. Among other facets of unconscionability, the Court agreed with describing its purpose as the protection of vulnerable persons in transactions with others.  Hodgkinson v. Simms, 1994 CanLII 70 (SCC), [1994] 3 S.C.R. 377 pp. 405 and 412; Hunter Engineering Co. v. Syncrude Canada Ltd., 1989 CanLII 129 (SCC), [1989] 1 S.C.R. 426 pp. 462 and 516; Norberg v. Wynrib, 1992 CanLII 65 (SCC), [1992] 2 S.C.R. 226 p. 247; and, Bhasin v. Hrynew, 2014 SCC 71 (CanLII), [2014] 3 S.C.R. 494 para. 43.

The Court asserted that “[o]penly recognizing a doctrine of unconscionability also promotes fairness and transparency in contract” and that there is value in recognizing judges’ perennial concern with unfairness.

Referring to the agreement of “[m]ost scholars” that unconscionability comprises two (2) elements – inequality of bargaining power stemming from some weakness or vulnerability affecting the claimant and an improvident transaction – the Court referenced its own endorsement of the pairing in Hunter Engineering Co. v. Syncrude Canada Ltd., p. 512.  For similar pairings, see Norberg v. Wynrib p. 256 and a similar approach followed in Douez v. Facebook Inc., 2017 SCC 33 (CanLII), [2017] 1 S.C.R. 751 para. 115.

“[65] We see no reason to depart from the approach to unconscionability endorsed in Hunter, Norberg and in Douez. That approach requires both an inequality of bargaining power and a resulting improvident bargain”.

The Court canvassed earlier cases, grouping some into “necessity” cases and others into “cognitive asymmetry” cases.  Necessity cases involve a weaker parties so dependent on the stronger that serious consequences would flow from not agreeing to a contract, impairing the weaker party’s ability to contract freely. Cognitive asymmetry arises where only one party can understand and appreciate the full import of the terms, including “dense or difficult to understand terms”.  The groupings were only illustrative in order to situate earlier cases and not fully state the contents of unconscionability.

The Court then looked into what qualified a bargain as “improvident” and required that it be assessed contextually.  “In essence, the question is whether the potential for undue advantage or disadvantage created by the inequality of bargaining power has been realized. An undue advantage may only be evident when the terms are read in light of the surrounding circumstances at the time of contract formation, such as market price, the commercial setting or the positions of the parties … ”.

The analysis appears to be result oriented, with the terms being unfair if the “flout” the weaker party’s “reasonable expectation” or cause “unfair surprise”.

Though Uber proffered a four (4) component approach to unconscionability, listed at para. 80, the Court dismissed it as being a “higher threshold” and “unduly narrows the doctrine, making it more formalistic and less equity-focused”. Among other critiques with that approach, the Court expressly dispensed with requiring or searching for knowledge or deliberate actions on the stronger party’s behalf as it “improperly emphasizes the state of mind of the stronger party, rather than the protection of the more vulnerable”.

Despite affirming at para. 88, that it does “not mean that a standard form contract, by itself, establishes an inequality of bargaining power”, the Court then elaborated on the mischiefs standard form contracts create by impairing one party’s ability to protect its interests in the contract.  See para. 89.  It identified the “virtues” which arise from the application of the doctrine.  It serves to encourage “those drafting such contracts to make them more accessible to the other party or to ensure that they are not so lop-sided as to be improvident, or both”.

At para. 93, the Court explained the inequality of bargaining power and at para. 94 the improvidence of the arbitration agreement.  The Court added that unconscionability of the arbitration agreement “can be considered separately from the contract as a whole”.

[95] The arbitration clause, in effect, modifies every other substantive right in the contract such that all rights that Mr. Heller enjoys are subject to the apparent precondition that he travel to Amsterdam, initiate an arbitration by paying the required fees and receive an arbitral award that establishes a violation of this right. It is only once these preconditions are met that Mr. Heller can get a court order to enforce his substantive rights under the contract. Effectively, the arbitration clause makes the substantive rights given by the contract unenforceable by a driver against Uber. No reasonable person who had understood and appreciated the implications of the arbitration clause would have agreed to it”.

In closing its reasons, the Court then acknowledged the role of arbitration in being cost-effective and efficient but, in the circumstances, illusory for Mr. Heller.  “When arbitration is realistically unattainable, it amounts to no dispute resolution mechanism at all”.

The Court declined to decide the validity of the arbitration agreement as contracting out of the ESA given that the agreement was unconscionable.

Brown J. – In his reasons, Brown J. promptly identified his agreement with the majority that the arbitration agreement was invalid but would not agree to rely on unconscionability to do so.  Rather, he examined the agreement from an access to justice viewpoint.

Contractual stipulations that foreclose access to legally determined dispute resolution – that is, to dispute resolution according to law – are unenforceable not because they are unconscionable, but because they undermine the rule of law by denying access to justice, and are therefore contrary to public policy”.

Brown J. disagreed with what he considered as the Court “vastly expanding the scope of the doctrine’s application and removing any meaningful constraint”, being “unnecessary and undesirable”.  The Court’s approach, he cautioned, served “only to compound the uncertainty that already plagues the doctrine, and to introduce uncertainty to the enforcement of contracts generally”.

Not bound by how the parties’ legal arguments had framed the appeal, he considered that the basis of the appeal raised public policy, namely access to justice.

Access to civil justice is a precondition not only to a functioning democracy but also to a vibrant economy, in part because access to justice allows contracting parties to enforce their agreements. A contract that denies one party the right to enforce its terms undermines both the rule of law and commercial certainty. That such an agreement is contrary to public policy is not a manifestation of judicial idiosyncrasies, but rather an instance of the self‑evident proposition that there is no value in a contract that cannot be enforced”.

Brown J. saw no distinction between a “clause that expressly blocks access to a legally determined resolution and one that has the ultimate effect of doing so” or “a provision that discourages dispute resolution and one that precludes dispute resolution altogether”.

At para. 116, Brown J. summarized the evolution of approaches to arbitration agreements which limited access to the courts, with the legislatures intervening in response to “hostile judicial posture” and prompting courts to accommodate for arbitration.  See Zodiak International Productions Inc. v. Polish People’s Republic, 1983 CanLII 24 (SCC), [1983] 1 S.C.R. 529 pp. 533‑542.

But curial respect for arbitration, and for parties’ choices to refer disputes to arbitration, is premised upon two considerations. First, the purpose of arbitration is to ensure that contracting parties have access to “a ‘good and accessible method of seeking resolution for many kinds of disputes’ that ‘can be more expedient and less costly than going to court’” (Wellman, at para. 83, quoting Legislative Assembly of Ontario, March 27, 1991, at p. 245). Second, courts have accepted arbitration as an acceptable alternative to civil litigation because it can provide a resolution according to law”.

Brown J. then summed up the effect of the agreement to arbitrate in the circumstances which attracted issues of public policy.

Where a clause expressly provides for “arbitration” while simultaneously having the effect of precluding it, however, these considerations which promote curial respect for arbitration dissolve ⸺ and here is where the public policy principle preventing an ouster of court jurisdiction continues to operate”.

Though disagreeing with other facets of the Court’s approach to creating an exception to the general rule of referral to the arbitrator, Brown J. acknowledged “a further, narrow exception”.

While arbitrators should typically rule on their own jurisdiction, an arbitrator cannot reasonably be tasked with determining whether an arbitration agreement, by its terms or effects, bars access to that very arbitrator. It therefore falls to courts to do so”.

At paras 126-128, Brown J. paused to take issue with the Court’s directing “a new, contested hearing” to consider bona fide challenges to arbitral jurisdiction.

[128] I say respectfully that this new procedural mechanism is unnecessary and will serve only to complicate and delay proceedings. Indeed, my colleagues appear to recognize this by their warnings that “this assessment must not devolve into a mini‑trial”, that “a single affidavit will suffice” and that “[b]oth counsel and judges are responsible for ensuring the hearing remains narrowly focused”. First, it seems to me that any development in contract law that requires a new affidavit from anyone on anything is probably a mistake. More fundamentally, however, and again with respect, my colleagues’ warnings seem to me entirely unrealistic. This Court might as well tell the parties and the motion judge to keep the hearing to 20 minutes, to conduct it on “Zoom” during the morning break or to dispense with cross‑examination on the affidavit(s). My colleagues’ exhortations, well‑intentioned as they undoubtedly are, are simply futile. Even worse, they will be seen as such; in the face of the realities of litigating the individual motion, it will not matter to anyone what we who dwell on Mt. Olympus think about such matters. The motion that my colleagues direct will proceed in the form in which the parties see fit, and the hearing will be conducted in the manner that the parties and the motion judge think appropriate in the circumstances. It therefore seems reasonable to expect that time savings, if any, will be minimal for those cases in which no genuine issue exists for the court to decide. And where a genuine issue does exist, the additional hearing will simply create duplication”.

Based on the ample facts already available in the record and summarized at para. 132, Brown J. concluded that the agreement, including the upfront cost of filing, created “an insurmountable precondition” preventing him from commencing a claim. At para. 133 he disagreed with the Court that “reaching this conclusion requires further evidence”.

He disagreed with Côté J.’s proposal to blue pencil the agreement.  See paras 140 and following.  The balance of his reasons, from paras 147 and following, contain observations on the doctrine of unconscionability and debates with the Court’s reliance on it.

In dissent, Côté J. would have allowed the appeal, explaining that “the Arbitration Act, the International Act, this Court’s jurisprudence and compelling considerations of public policy require this Court to respect the parties’ commitment to submit disputes to arbitration”.

urbitral note – First, for other Arbitration Matters notes on five (5) decisions which refer to but distinguish the Ontario Court of Appeal decision see:

(i) “B.C. court acknowledges but declines to follow reasoning in Heller v. Uber Technologies Inc.” – In A-Teck Appraisals Ltd. v. Constandinou, 2020 BCSC 135, Madam Justice Mary A. Humphries expressly noted but declined to follow the reasoning in Heller v. Uber Technologies Inc., 2019 ONCA 1.  Recognizing the Ontario Court of Appeal as a persuasive authority whose judgments merit respect, Humphries J. held it was “not obvious” that its reasoning applied to B.C. legislation and the unfairness informing that result did not arise on the facts before her.  She refused to void an arbitration agreement in an employment contract and, in doing so, granted a stay.

(ii) “Application for stay required for court to consider role of arbitration at certification stage” – Tasked with deciding whether or not to certify an action as a class proceeding, Madam Justice Veronica Jackson in Matthews v. La Capitale Civil Service Mutual, 2020 BCSC 787 declined to consider whether to stay the proceedings on the basis of mandatory arbitration agreements contained in several of the agreements.  Despite contesting certification, Jackson J. noted that Defendants had not filed an application for a stay under section 15 of the Arbitration Act, RSBC 1996, c 55 and therefore the issues “were not squarely before me and were not argued on this application”.  “At this time”, she could not conclude arbitration of disputes involving potential class members was required. In addition, Horsman J. held that the agreement to arbitrate overcame any unconscionability concerns raised in Heller v. Uber Technologies Inc., 2019 ONCA 1.

(iii) “Stay granted despite anticipation that arbitrator applying U.S. law might not be able to grant claims” – In Williams v. Amazon.com, Inc., 2020 BCSC 300, Madam Justice Karen Horsman stayed a proposed class proceeding for non-consumer claims seeking damages under Canada’s Competition Act, RSC 1985, c C-34 based on a standard form contract which submitted those claims to arbitration administered in the U.S. and subject to U.S. laws.  Respecting competence-competence, Horsman J. recognized several issues affecting jurisdiction but deferred them to the arbitrator.  She acknowledged the “real prospect” that a U.S. arbitrator (i) could decide that such claims were not available under U.S. substantive law and (ii) might lack jurisdiction to award the claimed damages but those were not sufficient to hold that the arbitration agreement was void, inoperative or incapable of performance.  In addition, Horsman J. held that the agreement to arbitrate overcame any unconscionability concerns raised in Heller v. Uber Technologies Inc., 2019 ONCA 1.

(iv) “Consumer contract arbitration clauses resist unconscionability/undue influence challenges” – Master Karen E. Jolley in Evans v. Mattamy Homes Limited, 2019 ONSC 3883 and Master Robert A. Muir in Wang v. Mattamy Corporation, 2019 ONSC 6675 each dismissed Plaintiffs’ attempts to resist application of an arbitration agreement based on arguments that the agreements were invalid due to unconscionability and undue influence.  Both concluded that Plaintiffs failed to demonstrate any of the elements required to invalidate the agreements.  Any alleged pressure was market driven, due more to Plaintiffs vying to purchase a property from a finite number being sold by Defendant and subject to ongoing sales efforts to other prospective purchasers.

(v) “Clause omitting express referral to arbitration still valid enough to stay litigation” – Despite less-than clear drafting, the parties’ agreement to have their disputes “settled in accordance with” identified institutional rules was sufficient to remove the court’s jurisdiction in Belnor Engineering Inc. v. Strobic Air Corporation et al., 2019 ONSC 664.  Mr. Justice Lorne Sossin also dismissed arguments that the arbitration agreement was invalid because it was unconscionable, noting that (i) no argument was made that applying the institutional rules was unconscionable and (ii) no inequality of bargaining power or practical inaccessibility of arbitration existed to create an unfairness if the action was stayed in favour of arbitration.

Second, the Supreme Court in TELUS Communications Inc. v. Wellman, 2019 SCC 19 held that section 7(5) of Ontario’s Arbitration Act, 1991, SO 1991, c 17 does not give courts discretion to refuse to stay claims dealt with by an otherwise valid arbitration agreement.  Though Ontario’s Consumer Protection Act, 2002, SO 2002, c 30, Sch A invalidates arbitration agreements to the extent they prevent consumers from pursuing claims in court, that policy choice does not extend to non-consumers who remain bound by their agreements to arbitrate.  Courts are to interpret legislation and not re-write it.  See Arbitration Matters note “Supreme Court – cumbersome task of sorting of consumer/non-consumer claimants does not authorize courts to re-cast arbitral legislation”.

In TELUS Communications Inv. v. Wellman, gave a nod to but no express support for Heller v. Uber Technologies Inc., 2019 ONCA 1.  The Supreme Court confirmed that the class representative had not argued that the standard form arbitration agreement was unconscionable.   In mentioning unconscionability, the Court merely noted that “stretching the language” of section 7(5) was not the appropriate avenue to argue potential unfairness caused by enforcing such agreements.

Third, the Court at paras 18-19, 25-26 and 28 refer to “dispute” but at para. 20 refers to “agreement”.