Being Conscious of Unconscionability in Modern Times: Heller v Uber Technologies
| Published date | 01 July 2021 |
| Author | Jodi Gardner |
| Date | 01 July 2021 |
| DOI | http://doi.org/10.1111/1468-2230.12616 |
bs_bs_banner
Modern Law Review
DOI:10.1111/1468-2230.12616
>
CASES
Being Conscious of Unconscionability in Modern
Times: Heller vUber Technologies
Jodi Gardner∗
Requiring low-paid drivers to sign an Arbitration Clause removing their right to local court
processes can be unconscionable and,if so,the clause is not enforceable.This was the conclu-
sion reached by the majority of the Supreme Court of Canada when considering a contractual
provision that mandated all external dispute resolution processesgo through mediation and arbi-
tration in the Netherlands and required upfront fees of $14,500USD to do so.In this case note,it
is argued that the Canadian decision opens the door for the United Kingdom to rethink the role
of unconscionability and how the doctrine could apply to modern contractual arrangements.
Heller vUber Technologies provides the opportunity to develop the elements of unconscionabil-
ity in a way that tackles inequality of bargaining power in standard form contracts, particularly
when they fall outside the protection of the Consumer Rights Act 2015.
INTRODUCTION
Who should decide whether an Uber driver in Ontario is an ‘employee’under
the relevant employment laws – the courts of Ontario or an arbitrator based in
the Netherlands? This was the key issue to be considered in Heller vUber Tech-
nologies1(Heller vUber). The Supreme Court of Canada came to the conclusion
that a clause requiring a potential litigant to incur upfront costs of $14,500USD
in order to commence arbitration proceedings in the Netherlands was invalid.
The matter should therefore be heard by the Ontario courts.The outcome
itself was uncontentious – not many people would support large companies
wielding power in a way that unjustiably restricts access to justice. What was
more controversial, however, was thebasis onwhichthis decisionwas made;
the judges in the majority were split as to why the clause was invalid, and there
was also a strong dissenting judgment.The majority found that the arbitration
clause in question resulted from an unconscionable bargain and was therefore
∗Lecturer,Cambridge Law Faculty; Fellow,St John’s College;Senior Adjunct Research Fellow,Centre
for Banking & Finance Law, National University of Singapore.I would like to express my gratitude
to the Modern Law Review editorial board for the Review Information Session for Female Academics
presentation on 10 June 2020,which was both inspiring and helpful. I wouldalso like to thank Jeremias
Adams-Prassl, Mindy Chen-Wishart, NickMcBride, John Murphyand FrederickWilmot-Smith for
their comments on earlier drafts. The usual caveat applies.
© 2021TheAuthor. The Modern Law Review published by John Wiley & Sons Ltd on behalf of Modern Law Review Limited.
(2021)84(4)MLR 874–885
This is an open access article under the terms of the Creative Commons Attribution-NonCommercial-NoDerivs License,which per mits
use and distribution in any medium, provided the original work is properly cited,the use is non-commercial and no modications or
adaptations are made.
Get this document and AI-powered insights with a free trial of vLex and Vincent AI
Get Started for FreeStart Your 3-day Free Trial of vLex and Vincent AI, Your Precision-Engineered Legal Assistant
-
Access comprehensive legal content with no limitations across vLex's unparalleled global legal database
-
Build stronger arguments with verified citations and CERT citator that tracks case history and precedential strength
-
Transform your legal research from hours to minutes with Vincent AI's intelligent search and analysis capabilities
-
Elevate your practice by focusing your expertise where it matters most while Vincent handles the heavy lifting
Start Your 3-day Free Trial of vLex and Vincent AI, Your Precision-Engineered Legal Assistant
-
Access comprehensive legal content with no limitations across vLex's unparalleled global legal database
-
Build stronger arguments with verified citations and CERT citator that tracks case history and precedential strength
-
Transform your legal research from hours to minutes with Vincent AI's intelligent search and analysis capabilities
-
Elevate your practice by focusing your expertise where it matters most while Vincent handles the heavy lifting
Start Your 3-day Free Trial of vLex and Vincent AI, Your Precision-Engineered Legal Assistant
-
Access comprehensive legal content with no limitations across vLex's unparalleled global legal database
-
Build stronger arguments with verified citations and CERT citator that tracks case history and precedential strength
-
Transform your legal research from hours to minutes with Vincent AI's intelligent search and analysis capabilities
-
Elevate your practice by focusing your expertise where it matters most while Vincent handles the heavy lifting
Start Your 3-day Free Trial of vLex and Vincent AI, Your Precision-Engineered Legal Assistant
-
Access comprehensive legal content with no limitations across vLex's unparalleled global legal database
-
Build stronger arguments with verified citations and CERT citator that tracks case history and precedential strength
-
Transform your legal research from hours to minutes with Vincent AI's intelligent search and analysis capabilities
-
Elevate your practice by focusing your expertise where it matters most while Vincent handles the heavy lifting
Start Your 3-day Free Trial of vLex and Vincent AI, Your Precision-Engineered Legal Assistant
-
Access comprehensive legal content with no limitations across vLex's unparalleled global legal database
-
Build stronger arguments with verified citations and CERT citator that tracks case history and precedential strength
-
Transform your legal research from hours to minutes with Vincent AI's intelligent search and analysis capabilities
-
Elevate your practice by focusing your expertise where it matters most while Vincent handles the heavy lifting