The majority of the Supreme Court of Canada held that the International Commercial Arbitration Act (ICAA) does not apply in this case. Although the agreement between Mr. Heller and Mr. Uber is unquestionably international, it is not in fact “commercial”. The majority found that the issue of ICAO`s application was based on the nature of the dispute between the parties, which may result from an analysis of the briefs. In the majority`s view, the dispute between the parties in this case is “fundamentally a matter of work and employment,” which is not the kind of litigation that the CICA is supposed to conduct. The applicable law is the Ontario National Arbitration Act of 1991 (Arbitration Act). The dissenting judge found that the arbitration at issue was both international and commercial. Uber`s service agreement explicitly states that it creates a software license agreement and not a working relationship. Disputes arising from this type of commercial relationship fall within the scope of AACI. As most contractors know, it is customary to have a compromise clause in a typical AIA construction agreement that requires contracting parties to participate in arbitration proceedings rather than litigation proceedings. The majority called the case “a classic case of lack of scruples.” Recognising the inconsistent application of the doctrine of impitoyability in the preliminary proceedings, the majority reaffirmed the dual test requirement of unequal bargaining power and the resulting immeasurable windfall.
The majority rejected the proposal for a four-year test, which would include the lack of independent legal advice from the victim and the strongest party that knowingly exploits the vulnerability of the other party. It also concluded that the unacceptable nature of a compromise clause could be considered separately from that of the treaty as a whole. With regard to the unequal bargaining power, the majority considered that there were no “rigid restrictions” on this concept. The problem is that a party cannot properly protect its own interests. While the majority argued that standard form contracts do not in themselves justify the inequality of bargaining power, it drew attention to “the many ways in which standard contracts can affect a party`s ability to defend its interest in entering into a contract.” In order not to do the right thing, the majority found that it could either unduly disadvantage the strongest party or unduly disadvantage the most vulnerable party. The lack of an experience must be evaluated in a contextual way. In this particular case, the majority concluded that the administrative costs charged by Mr. Heller in advance, taking into account the small amount of fees likely to flow from the contract, rendered the compromise clause inadmissible.
He found that the total amount of pre-feeding costs is close to Mr. Heller`s annual income and does not include other related expenses, such as legal fees. Brown and Cété J.A. split up in the majority on this issue. The judge did not find the compromise clause unacceptable. In their view, the majority approach limits the use of arbitration clauses in model contracts and opens the door to the misuse of the doctrine of scruples, thereby creating commercial uncertainty. It considers that any restrictions on the application of arbitration clauses in model contracts, which are of major importance to the sharing economy, should be left to the legislature.