Uber Mandatory Arbitration Clause Issue Heading to SCC

Written on behalf of Peter McSherry
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In a prior post, we discussed the decision of the Ontario Court of Appeal which struck down a clause in a contract between the ride-sharing company and its drivers. This “arbitration clause” required the drivers to submit any dispute to binding arbitration in the Netherlands and hence were denied the right to sue in the usual civil courts.

This decision of the Court of Appeal only allowed the drivers to sue civilly and then to claim employment status in that lawsuit. No decision had been made on their status as employees or contractors which remains an issue to be decided in the future. There is no guarantee that the drivers will win this issue, even if the arbitration clause is determined to be unenforceable.

An appeal from the decision of the Court of appeal has recently been granted leave to the Supreme Court of Canada.

The Appeal Process

Canadian courts have a somewhat complicated appeal process. Any trial award can be appealed on a question of law. If a trial judge made a finding of fact, such as “it was raining on the night of the accident”, that cannot be appealed. If the trial judge stated that “every rainy night always causes accidents”, that would be a statement of law and can be challenged on appeal.

The Court of Appeal

Ontario’s Court of Appeal sits in panels of three judges. The decision of the majority will prevail. If one judge disagrees, he or she will write a “dissenting judgment”. Ironically many times in Ontario law, the dissenting reasons have later been determined to be the preferred view and then are quoted as definitive of the law.

Sometimes one judge will agree with the overall result of the other judges but for different reasons. That is known as a “concurring” judgment.

The Supreme Court of Canada

The Supreme Court consists of nine judges. The court usually sits as a full set of nine judges, but can sit occasionally as seven, should one justice have a conflict or be unable to preside for some other reason.

In civil cases, to appeal from a Court of Appeal decision of any province or territory to the Supreme Court, “leave” or permission of the Supreme Court must be given. This is notoriously difficult to obtain. No reasons are ever given for the denial or the granting of leave.

Back to Uber

The granting of leave in this case raises some issues of concern, at least to the drivers. The arbitration clause on first reading seems very one-sided and onerous to the drivers, persons who may be unsophisticated in matters of contracts of this nature. The final result remains uncertain. Stay tuned.

Get Advice and Know Your Rights

Get advice. Know your rights. Contact the offices of Guelph employment lawyer Peter McSherry. We can guide you through the issues, help you understand your rights, and defend your position. Contact us online or by phone at 519-821-5465 to schedule a consultation