Jing (Catherine) Ou

Truth be told, I started using UberEats App to order food delivery after the Court of Appeal for Ontario’s decision on the Uber case (Heller v. Uber, 2019 ONCA 1). Although I like cooking very much, I have to admit that UberEats provides efficient food delivery service that allows me to save some time that I should have spent in the kitchen in order to immerse myself in my work and writing when necessary. The day when I downloaded the App to my cellphone as a consumer, I saw the Terms and Conditions that oblige me to refer a dispute to binding individual arbitration. I am conscious of the existence of the Terms and Conditions. And I disagree with it. But I still downloaded it and used this App because a) I was starving; b) I think the arbitration clause won’t apply to me, a Quebec consumer living at Montreal, who is well protected by the Consumer Protection Act, CQLR c P-40.1 (See Art. 11.1).

Having determined that a court should resolve whether the arbitrator has jurisdiction over the dispute between Heller and Uber, the Supreme Court of Canada found that the Arbitration Clause of Uber’s Services Agreement is invalid. This Arbitration Clause is invalidated because it is considered unconscionable and detrimental to access to justice. Hence, this article discusses the unconscionability issue and the accessibility issue of the Arbitration Clause in Uber’s Services Agreement. 

The Supreme Court of Canada released the judgement on Uber Technologies Inc. v. Heller, 2020 SCC 16 on June 26, 2020. In an 8-1 ruling, the Supreme Court found that the Court has jurisdiction on determining the issue of the arbitrator’s jurisdiction in this case and that the Arbitration Clause between Uber and Heller is invalid. This decision has raised arbitration lawyers’ concerns and discussions these days. The Canadian Journal of Commercial Arbitration and Arbitration Place has organized a Webinar entitled “Uber v. Heller: First Impression” on July 3 at 12PM to discuss on this judgement. Mr. Daniel Urbas has also published a case comment on this judgement (See Supreme Court – courts should not refer jurisdiction challenge to arbitrator if real prospect that challenge might never be resolved)

This article discusses the Supreme Court of Canada’s majority reasoning on whether the Court can decide the challenge of arbitrator’s jurisdiction on the validity of the Arbitration Clause.

Questions of Mixed Fact and Law on Contractual Interpretation: A Preliminary Study of the Supreme Court of British Columbia’s Decision on Gormac Developments Ltd. v. Teal Cedar Products Ltd., 2020 BCSC 712 – WriteToLearn Evening Notes

The contractual interpretation is an exercise involving either a question of law or a question of mixed fact and law (para. 45 of Sattva). The questions of mixed fact and law involve aspects of law (para. 45 of Teal Cedarand para. 65 of Richmont Mines). And the Canadian courts may grant leave to appeal if the aspects of law in the contractual interpretation could be extricated from the factual matrix and if the questions of law have the degree of generality or a “great precedential value” (see para. 37 of Southamand Art. 31 (2) Arbitration Act, RSBC 1996, c55). A narrow scope for extricable questions of law is defined by the Canadian courts in order to keep consistent with the key policy objectives of consensual arbitration, namely efficiency and finality.