Inclusion of arbitration agreement in contracts not making them unconscionable

Defendants were part of group of companies known as “Uber” whose computer software applications had transformed transportation business, most particularly taxi and limousine business, and restaurant delivery business. Plaintiff entered into several contracts with Uber for use of applications for purpose of delivering food from restaurants to consumers. Contracts provided they were governed by law of Netherlands and included agreement to arbitrate disputes in Netherlands. Plaintiff alleged he and others who used Uber applications were employees of Uber and were entitled to benefits of Employment Standards Act, 2000 (ESA). Plaintiff brought proposed class proceeding against defendants for declaratory and other relief. Defendants brought motion for order staying proceeding in favour of arbitration in Netherlands. Motion granted. International Commercial Arbitration Act, 2017 applied rather than Arbitration Act, 1991 since agreements were both commercial and international, though outcome would have been same under latter Act. General rule was that challenge to arbitrator’s jurisdiction should be first resolved by arbitrator. Under what is known as competence-competence principle, if there is arguable or prima facie case that arbitrator has jurisdiction, court should defer issue of jurisdiction to arbitrator. ESA did not expressly oust arbitration agreements, and issue of whether employment claims were arbitrable was issue subject to competence-competence principle. Inclusion of arbitration agreement in contracts did not make them unconscionable, so plaintiff failed to bring case within court’s very limited jurisdiction to refuse stay where parties had agreed to submit their dispute to arbitration.

Heller v. Uber Technologies Inc. (2018), 2018 CarswellOnt 1090, 2018 ONSC 718, Perell J. (Ont. S.C.J.).