In a January 22 webinar on the Supreme Court of Canada case involving Uber and its drivers, legal experts will discuss whether unconscionability principles can answer when not to enforce arbitration agreements.
In a January 22 webinar on the Supreme Court of Canada case involving Uber and its drivers, legal experts will discuss whether unconscionability principles can answer when not to enforce arbitration agreements.

“Uber v. Heller is probably the first in a long line of cases that gig economy workers are going to bring to the courts,” says Professor Kevin Banks, Director of the Centre for Law in the Contemporary Workplace (CLCW) at Queen’s. “This case raises some complicated issues both for labour law and for international commercial arbitration…and there’s a lot of controversy.”

To explore those issues, the CLCW and the Canadian Journal of Commercial Arbitration (CJCA) are convening panels of experts in a webinar. The Zoom event, “Uber v. Heller – Can Unconscionability Principles Answer When Not to Enforce Arbitration Agreements?” will be held on January 22, from 1:00 pm until 3:30 pm. 

In a landmark decision regarding the class action lawsuit last June, the Supreme Court of Canada (SCC) ruled that Uber could not enforce the arbitration clause in the agreement that its drivers had to accept in a phone app in order to work as an Uber driver. The clause required that any case involving a driver’s dispute with Uber be heard by an international arbitrator in the Netherlands and that the driver pay a $15,000 fee to start the process. 

“The Supreme Court said it was an unconscionable agreement and that the drivers did not have to go to the Netherlands to arbitrate their claims this way,” explains Banks. “The main issues in the case are still to be decided. Are the drivers actually employees and does Uber owe them anything? Whether gig workers are employees is an issue that’s being litigated all around the world. Who ‘employees’ are is a central issue to labour law as it defines the law’s scope and who gets protected by it, and that’s often key to many disputes.”

Another outstanding issue is where the line is drawn in deciding which cases go to arbitration. Associate Dean Josh Karton, CJCA’s Managing Editor, describes that issue: “While the ultimate impact of Uber v. Heller remains uncertain, it may have fundamentally shifted the relationship between Canadian courts and arbitral tribunals, directing courts to intervene proactively in private disputes in order to police the fairness of agreed arbitration procedures. 

“The SCC decision’s clearest implications are for one-sided contracts like those in employment and consumer relationships; however, it could also reshape commercial arbitration proceedings, especially those between economically unequal parties,” he adds. “At minimum, it is making contract drafters across Canada think twice about how fair and accessible the arbitration procedures they call for really are.”

In the workshop, leading Canadian and American legal scholars and practitioners will discuss whether employment law claims should be subject to mandatory arbitration and the implications of the case for commercial arbitration. Following a panel on each topic, the speakers will share their ideas on whether it makes sense to be dealing with employment issues in commercial arbitration.  

To see the agenda and to register for the webinar, please visit the CLCW website. For practitioners, the webinar will be eligible for Continuing Professional Development credit.