On June 26, 2020, the Supreme Court of Canada (SCC) released its highly anticipated decision in Heller v Uber, 2020 SCC 16 [Heller]. Uber had applied for a stay of this proposed class action in favour of arbitration. The court of first instance had granted the stay, which the Ontario Court of Appeal set aside. The SCC upheld the Court of Appeal’s decision, concluding that the arbitration clause was invalid as it was unconscionable: (i) Mr. Heller was powerless to negotiate the terms of the contract; (ii) there was a gulf in sophistication between Mr. Heller, a food deliveryman, and Uber, a large multinational corporation; (iii) the arbitration agreement contained no information about the costs of mediation and arbitration in the Netherlands; (iv) those costs, US$14,500, that Mr. Heller needed to pay up front, constituted a hurdle to relief in that they represented close to Mr. Heller’s annual income; and (v) arbitration here was thus only “illusory.” Justice Côté, in dissent, would have granted the stay on condition that Uber pay the necessary arbitration fee.
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