Ontario Court of Appeal Rules in Heller v Uber Technologies Inc: A Sensible Result with Challenging Implications

  • 15 janvier 2019
  • Paul-Erik Veel

Courts have repeatedly considered the question of when parties can agree in advance to opt out of class actions in favour of private arbitration. In some cases, such as consumer protection claims, provincial legislatures have generally eliminated the ability of defendants to defeat class actions through arbitrations by declaring clauses requiring the parties to submit such disputes to private arbitrations to be void. (Though even in the consumer protection context, there remain significant unresolved issues, as the recent appeal to the Supreme Court of Canada in Telus Communications Inc v Wellman[1] shows.)

Outside of the consumer protection context, it has remained an open question as to whether and when courts will enforce arbitration clauses where the effect of such enforcement would be to defeat a proposed class proceeding. In the employment context, it seemed that at least some courts were willing to enforce arbitration clauses in employment or independent contractor agreements. This would, in turn, eliminate the ability of individuals who claimed that they had been systemically misclassified as independent contractors rather than employees to bring class actions under the applicable employment standards legislation.

However, in its first decision of 2019, the Ontario Court of Appeal held in Heller v Uber Technologies Inc.[2] that arbitration clauses in Uber’s contracts with its drivers were void. Reversing the decision below, the Court of Appeal allowed the proposed class action against Uber to proceed.