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Uber Arbitration Clause Unconscionable

In 2017 drivers working under contract for Uber in Ontario launched a class action.  They alleged that under Ontario law they were employees entitled to various benefits Uber was not providing.  In response, Uber sought to stay the proceedings on the basis of an arbitration clause in the standard-form contract with each driver.  Under its terms a driver is required to resolve any dispute with Uber through mediation and arbitration in the Netherlands.  The mediation and arbitration process requires up-front administrative and filing fees of US$14,500.  In response, the drivers argued that the arbitration clause was unenforceable.

The Supreme Court of Canada has held in Uber Technologies Inc. v. Heller, 2020 SCC 16 that the arbitration clause is unenforceable, paving the way for the class action to proceed in Ontario.  A majority of seven judges held the clause was unconscionable.  One judge held that unconscionability was not the proper framework for analysis but that the clause was contrary to public policy.  One judge, in dissent, upheld the clause.

Staying Proceedings under the Civil Code of Quebec

Written by Professor Stephen G.A. Pitel, Western University

The decision of the Supreme Court of Canada in R.S. v P.R., 2019 SCC 49 (available here) could be of interest to those who work with codified provisions on staying proceedings. It involves interpreting the language of several such provisions in the Civil Code of Quebec. Art. 3135 is the general provision for a stay of proceedings, but on its wording and as interpreted by the courts it is “exceptional” and so the hurdle for a stay is high. In contrast, Art. 3137 is a specific provision for a stay of proceedings based on lis pendens (proceedings underway elsewhere) and if it applies it does not have the same exceptional nature. This decision concerns Art. 3137 and how it should be interpreted. Read more

The Role of Foreign Enforcement Proceedings in Forum Non Conveniens

The doctrine of forum non conveniens, in looking to identify the most appropriate forum for the litigation, considers many factors.  Two of these are (i) a desire to avoid, if possible, a multiplicity of proceedings and (ii) any potential difficulties in enforcing the decision that results from the litigation.  However, it is important to keep these factors analytically separate.

In the Supreme Court of Canada’s recent decision in Haaretz.com v Goldhar (available here) Justice Abella noted that “enforcement concerns would favour a trial in Israel, in large part because Haaretz’s lack of assets in Ontario would mean that any order made against it would have to be enforced by Israeli courts, thereby raising concerns about a multiplicity of proceedings” (para 142).  Similarly, Justice Cote concluded (paras 82-83) that the fact that an Ontario order would have to be enforced in Israel was a factor that “slightly” favoured trial in Israel.

Staying Proceedings, Undertakings and “Buying” a Forum

One of the points of interest in the Supreme Court of Canada’s recent decision in Haaretz.com v Goldhar (available here) concerns the appropriateness of the plaintiff’s undertaking to pay the travel and accommodation costs of the defendant’s witnesses, located in Israel, to come to the trial in Ontario.  The defendant had raised the issue of the residence of its witnesses as a factor pointing to Israel being the more appropriate forum.  The plaintiff, one presumes, made a strategic decision to counter this factor by giving the undertaking.

The motions judge and the Court of Appeal for Ontario both considered the undertaking as effective in reducing the difficulties for the defendant in having the litigation in Ontario.  However, the undertaking was viewed quite differently by at least some of the judges of the Supreme Court of Canada.  Justice Cote, joined by Justices Brown and Rowe, stated that “consideration of such an undertaking would allow a wealthy plaintiff to sway the forum non conveniens analysis, which would be inimical to the foundational principles of fairness and efficiency underlying this doctrine” (para 66).  Justice Abella, in separate reasons, stated “I think it would be tantamount to permitting parties with greater resources to tip the scales in their favour by ‘buying’ a forum. … it is their actual circumstances, and not artificially created ones, that should be weighed” (para 140).  The other five judges (two concurring in the result reached by these four; three dissenting) did not comment on the undertaking.

Supreme Court of Canada: Israel, not Ontario, is Forum Conveniens for Libel Proceedings

The decision to stay proceedings under the doctrine of forum non conveniens is discretionary, which in part means that appeal courts should be reluctant to reverse the decisions of motions judges on the issue.  It comes as some surprise, therefore, that the Supreme Court of Canada has disagreed with not only the motions judge but also the Court of Appeal for Ontario and overturned two earlier decisions denying a stay.  In Haaretz.com v Goldhar (available here) the court held (in a 6-3 decision) that the plaintiff’s libel proceedings in Ontario should be stayed because Israel is the clearly more appropriate forum.

The decision is complex, in part because the appeal also considered the issue of jurisdiction and in part because the nine judges ended up writing five sets of reasons, four concurring in the result and a fifth in dissent.  That is very unusual for Canada’s highest court.

Symposium Publication: Court Jurisdiction and Proceedings Transfer Act

The most recent issue of the Osgoode Hall Law Journal (available here) is a special issue, guest edited by Janet Walker, Gerard Kennedy and Sagi Peari, considering the Court Jurisdiction and Proceedings Transfer Act.  This statute governs the taking of jurisdiction and both staying and transferring proceedings in civil and commercial matters in three Canadian provinces: British Columbia, Nova Scotia and Saskatchewan.

The abstract to the introductory article states: “In 2016, the Court Jurisdiction and Proceedings Transfer Act (“CJPTA”) marked its tenth year in force.  Promulgated by the Uniform Law Conference of Canada, and adopted in British Columbia, Saskatchewan and Nova Scotia, the CJPTA was developed to clarify and advance the law of judicial jurisdiction.  In a symposium hosted by Osgoode Hall Law School, ten leading scholars were invited to present papers on specific questions in order to assess the promise of the CJPTA to meet the needs of Canadians in the years ahead and to provide leadership for the law in other parts of Canada.  This article provides an overview of the issues discussed in the symposium; it places the papers that were presented in the larger context of developments in the law of judicial jurisdiction in Canada and internationally; and it summarizes in an appendix the drafting reforms that might be made to the Act.”

New Article: Jurisdiction Clauses in Canada

Tanya Monestier (Roger Williams University School of Law) has published an article (available here) addressing the Supreme Court of Canada’s decision in Douez v Facebook, Inc. (available here).

Conflicts Conference in Toronto

The following information is provided by the conference organizers.  Given how rare conflict of laws conferences are in Canada, I am delighted to pass this along.

The CJPTA: A Decade of Progress

In 2016, the Court Jurisdiction and Proceedings Transfer Act marks its tenth year in force.  Adopted in British Columbia, Saskatchewan and Nova Scotia, the CJPTA has clarified and advanced the law of judicial jurisdiction. This symposium will assess the progress made by the CJPTA across the range of issues addressed and critically evaluate the capacity of the CJPTA: to provide leadership for the law in other parts of Canada; to enable further development in the law; and to meet the needs of Canadians in the years ahead in a world of increasing cross-border dealings.

Tourism and Jurisdiction to take Centre Stage in Supreme Court of Canada

On March 21, 22 and 25, 2011 the Supreme Court of Canada will hear appeals in four private international law cases.  Each is a case in which the Ontario court has held that it has jurisdiction to hear the dispute and that the proceedings should not be stayed in favour of another forum. 

Two of the cases – Van Breda (information here) and Charron (information here) – involve Ontarians who were killed or severely injured while on holiday in Cuba.  They now seek to sue various foreign defendants in Ontario.  These cases involve tourists in the traditional sense of the word.  Two of the cases – Banro (information here) and Black (information here) – involve claims for defamation over the internet and damage to reputation in Ontario.  There is some allegation that these cases involve what has become known as “libel tourism”, especially in England and in the United States.

Several parties have already been granted leave to appear as intervenors and others are seeking such leave.  The decisions in these four cases could be very important for the Canadian law on jurisdiction.

The Supreme Court of Canada now posts PDFs of the written submissions of litigants as they are received, so those wanting more details about the cases should click on the “factums” button for each case.

Italian Forum on the Brussels I Review Proposal (2): Lis Pendens and Related Actions

Following our previous post on the forum on the Brussels I review currently hosted by the website of the Italian Society of International Law (SIDI-ISIL), another comment has been added, on the amendments proposed by the Commission in respect of lis pendens and related actions. The contribution is authored by Fabrizio Marongiu Buonaiuti (University of Rome “La Sapienza”), who has recently published an extensive monograph on the regime of lis pendens and related actions in Italian law, in the European regulations and in other international instruments (Litispendenza e connessione internazionale. Strumenti di coordinamento tra giurisdizioni statali in materia civile, Napoli, 2008):