Canada: Blaney's Appeals: Ontario Court Of Appeal Summaries (January 1 – 4, 2019)

Blaney's Appeals
Last Updated: January 9 2019
Article by John Polyzogopoulos

Good evening and Happy New Year to all our readers!

There were only two substantive civil decisions of the Court of Appeal this week. Most notably, in Heller v Uber Technologies Inc., the Court revived a proposed class action by Uber drivers against Uber alleging that they are employees who have been denied rights under the Employment Standards Act, rather than independent contractors. Justice Perrell had stayed the class proceeding on jurisdictional grounds in favour of Uber's arbitration clause requiring all disputes to be arbitrated in the Netherlands under Dutch law, and only after payment of a large fee. The Court determined that the arbitration clause was invalid and unenforceable because it purported to contract out of the Employment Standards Act, even though it remains to be determined whether the Uber drivers actually are employees.

Have a nice weekend.

John Polyzogopoulos

Blaney McMurtry LLP

416.593.2953 Email


Heller v. Uber Technologies Inc., 2019 ONCA 1

[Feldman, Pardu and Nordheimer JJ.A.]


M. Wright, D. Stampley, L. Samfiru, S. Gillman and J. Omran, for the appellant

L. Talbot and S. Whitmore, for the respondents

Keywords: Contracts, Arbitration Clauses, Enforceability, Unconscionability, Employment Law, Employment Standards, Civil Procedure, Class Proceedings, Jurisdiction, Stay of Proceedings, Arbitration, Statutory Interpretation, Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 SCR 27, Machtinger v HOJ Industries Ltd., [1992] 1 SCR 986, Titus v William F. Cooke Enterprises Inc, 2007 ONCA 573, Douez v Facebook, Inc., 2017 SCC 33, International Commercial Arbitration Act, 2017, SO 2017, c 2, Sched 5, Arbitration Act, 1991, SO 1991, c 17, s. 7, Employment Standards Act, 2000, SO 2000, c 41, ss. 1, 5 and 96


The appellant was an Ontario resident licensed to use the respondents' driver app to provide food delivery services. In registering for the app, the appellant was required to agree to its terms and conditions, which stipulated that any dispute between a driver and the respondents be arbitrated in Amsterdam, and be governed by Dutch law ("the Arbitration Clause"). Additionally, the up-front administrative costs for a driver to participate in arbitration were a minimum of US$14,500. The appellant earned about C$20,800-$31,200/year, before taxes and expenses.

The appellant commenced a proposed class action against the respondents, seeking a declaration that the drivers in Ontario who use the driver app to provide transportation or food delivery services are in fact employees of the respondents and are governed by the provisions of the Employment Standards Act, 2000, SO 2000, c 41 (the "ESA"). The claim also sought a declaration that the respondents violated the provisions of the ESA, and that the arbitration provisions of the services agreements entered into between the parties were unenforceable.

The respondents moved for a stay of proceedings. The motion judge granted the stay, observing that courts must enforce arbitration agreements freely entered into, even in contracts of adhesion. Any restriction on the parties' freedom to arbitrate must be found in legislation. He additionally concluded that the plain language of the ESA did not restrict the parties from arbitrating, and that the arbitrability of employment agreements was not a question of pure statutory interpretation. Rather, it raised a "complex issue of mixed fact and law" for an arbitrator to decide at first instance under the competence-competence principle. Finally, he rejected the unconscionability exception that the appellant advanced under both the Arbitration Act, 1991 (the "Arbitration Act"), and the International Commercial Arbitration Act, 2017 (the "ICAA").


(1) Did the motion judge err in granting the respondents' motion to stay proceedings?


Appeal allowed.


(1) Yes. As a preliminary matter, the Court addressed the appropriate standard of review. In finding that the correctness standard applied, the Court made two observations: first, the central questions (including the proper application of the Arbitration Act and the ICAA) were questions of law; and second, the interpretation of standard form contracts has ramifications beyond this case.

The Court declined to address whether the parties' relationship was a commercial one, observing that nothing material turned on which arbitration legislation applied. However, the Court did note that it would make reference in its reasons solely to the Arbitration Act, since that statute was the more commonly referred-to statute on these matters.

The Court then turned to the two issues to be determined: (a) whether the Arbitration Clause amounted to an illegal contracting out of the ESA and was thus invalid; and (b) whether the Arbitration Clause was unconscionable and thus invalid on that separate basis. As set out below, the Court found in the appellant's favour on both points.

Contracting out

Notably, the Court expressly declined to determine whether the appellant was an employee or an independent contractor, noting that this was to be decided in the main action. Nevertheless, given that this was a preliminary issue in the proceeding, the Court observed that it would presume the appellant could prove that he was an employee.

The Court observed that s. 7(1) of the Arbitration Act, which mandates a stay of proceedings where parties agree to arbitration, is subject to several exceptions under s. 7(2). One of those exceptions is where the arbitration agreement is invalid, which the appellant alleged here on the basis that it amounted to a contracting out of the ESA. Specifically, the Court considered s.5 of the ESA, which stipulates that parties may not contract out of an employment standard, which under s. 1 of that statute was defined as "a requirement or prohibition under this Act that applies to an employer for the benefit of an employee".

The Court concluded that the Arbitration Clause violated the appellant's right under s.96 of the ESA to make a complaint to the Ministry of Labour, subject to the exception that such a right would be foreclosed where an employee opts to commence a civil proceeding. The Court rejected the respondents' argument that s. 96 did not apply on the basis that the arbitration would count as a "civil proceeding", finding that this interpretation was inconsistent with the plain wording of the ESA, extracted s.96 from the relevant statutory context, invited an unduly narrow interpretation of s.96, and would run afoul of the Supreme Court directive in Machtinger v. HOJ Industries Ltd regarding the interpretative approach to be taken to the ESA.

The Court similarly rejected the respondents' argument that this issue was one for an arbitrator to decide under the competence-competence principle, finding that the issue here was not one of jurisdiction but of validity.

Returning to the appellant's s. 96 right to make a complaint, the Court dismissed the relevance of the appellant's decision to opt for a civil proceeding and thus foreclose the possibility of a complaint. On this point, the Court made five observations: first, since the Arbitration Clause was invalid, it was irrelevant what the appellant chose to do; second, the Arbitration Clause essentially transferred the appellant's s.96 rights to the respondents; third, the fact that this was a proposed class action made it obvious why the appellant opted for a civil proceeding; fourth, any findings would be public under either procedure; and fifth, there was no evidence as to what remedy the appellant could expect to obtain if he were successful in arbitration.

With respect to this fifth point, the Court rejected the respondents' argument that it was incumbent upon the appellant to provide expert evidence, finding that a) the respondents also failed to do so despite the fact it would have been much easier for them, and b) no expert evidence was required.


The Court first rejected the motion judge's finding that the only substantial disputes would entail arbitration in the Netherlands, while most disputes could be resolved via mechanisms readily available in Ontario. To the contrary, there was no dispute resolution mechanism other than the Arbitration Clause. The reason that only substantial disputes would go to arbitration was a result of the financial barriers imposed upon drivers. The Court similarly rejected the motion judge's decision to look at the collective claim of the class action rather than the appellant's claim, noting that since the class action was merely proposed, the claim at issue remained in essence a single claim. On this basis, it was financially prohibitive for the appellant to begin an arbitration.

Turning specifically to the test for unconscionability, the Court declined to address the inconsistency between the four-part test accepted in Ontario and the two-part test accepted in British Columbia, since both tests could be met in this case. Accordingly, the Court opted to apply the more thorough four-part test, which required the following to be demonstrated: a grossly unfair and improvident transaction; a victim's lack of independent legal advice or other suitable advice; an overwhelming imbalance in bargaining power caused by the victim's ignorance of business, illiteracy, ignorance of the language of the bargain, blindness, deafness, illness, senility, or similar disability; and the other party knowingly taking advantage of this vulnerability.

Before turning to its analysis, the Court observed that the broader test from Douez v Facebook for forum selection clauses was applicable here, because the Arbitration Clause was also a forum selection and choice of law clause. Under the Douez test, the Arbitration Clause was subject to the two requirements: a) that it be valid, clear, enforceable, and applicable to the cause of action before the court; and b) that there were otherwise no strong reasons not to enforce the forum selection clause. In the context of the Arbitration Act, however, the Court observed that the Douez test would be modified in two respects: first, the burden of proof would fall upon the person seeking to set aside the clause (in this case, the appellant); and second, a finding of validity under the first part of the test would preclude the application of the second part because s.7(2) of the Arbitration Act would not apply and the stay would therefore become mandatory.

Turning finally to the clause at hand, the Court concluded that the Arbitration Clause failed both under the Douez forum-selection clause test, and under the general test for unconscionability. First, the transaction was self-evidently improvident, since the fees were out of all proportion to the amounts in dispute and a driver would be given no information on Dutch law. Second, there was no evidence that the appellant had any legal or other advice prior to entering into the agreement, nor was it realistic to expect that he would. Third, there was a significant inequality of bargaining power. Fourth and finally, given the analysis of the first three elements, the Court found it to be a reasonable inference that the respondents knowingly and intentionally took advantage of their drivers.

Appleyard v. Zealand, 2019 ONCA 4

[Strathy C.J.O, Roberts and Zarnett JJ.A.]


J.A. Appleyard, acting in person

M.J. Sweatman, for the respondent

Keywords: Civil Procedure, Orders, Setting Aside or Varying, Vexatious Litigants, Bankruptcy and Insolvency, Wills and Estates, Family Law, Spousal Support, Rules of Civil Procedure, Rules 37.14(1)(b) and 59.06(2)(a), Courts of Justice Act, RSO 1990, c C.43, s 134(1) and s 140


The appellant filed two objections against the appointment of the respondent as trustee of the estate of the appellant's former spouse, among other claims against the estate. The appellant and her former spouse were divorced in 1996. When her former spouse died in 2013, he left a will which did not name the appellant as a beneficiary.

The respondent obtained an order on March 15, 2017, requiring the appellant to seek leave before bringing a claim or motion against the estate on the basis of the appellant's own ongoing bankruptcy proceeding. The order made in her bankruptcy proceeding precluded the appellant "from bringing any further or other proceedings or seeking any other relief without leave of this Court" until she complied with a costs order.

The appellant brought a motion to set aside or vary the March 15, 2017 order, which was dismissed on August 1, 2017, on the basis that she did not meet the criteria she relied on under Rules 37.14(1)(b) and 59.06(2)(a) of the Rules of Civil Procedure. The appellant appealed both the March 15, 2017, and August 1, 2017 orders.


(1) Did the motion judge err in finding that the appellant required leave to bring claims against her former spouse's estate in the March 15, 2017 order?

(2) Did the motion judge err in dismissing the appellant's motion to set aside or vary the March 15, 2017 order?


Appeal allowed in part.


(1) Yes. The motion judge erred in finding that the appellant's bankruptcy proceeding was an obstacle to advancing a claim against her former spouse's estate, a claim unrelated to her bankruptcy. The scope of the bankruptcy order should not have been extended beyond the bankruptcy proceeding. In addition, the appellant had not been declared a vexatious litigant under section 140 of the Courts of Justice Act. Accordingly, the appellant should not have been required to obtain leave under this section. Therefore, the appeal to set aside the March 15, 2017 order was allowed.

(2) No. The motion judge did not err in finding that the appellant's failure to appear on a motion was due to "accident, mistake or insufficient notice" as required under rule 37.14(1)(b), because the appellant took a calculated risk in failing to appear. Further, the motion judge did not err in holding that there was no fraud as required under rule 59.06(2)(1). Therefore, the appeal from the August 1, 2017 dismissal order was dismissed.


R. v. Hafizi, 2019 ONCA 2

[Hoy A.C.J.O., Feldman and Benotto JJ.A]


P. Campbell and C. Verner, for the appellant

S. Reid, for the respondent

Keywords: Criminal Law, First Degree Murder, Second Degree Murder, Jury Charge, Mens Rea, R v Vectrovec, [1982] 1 SCR 811, R v Baltovich (2004), 73 OR (3d) 481 (CA), R v Yebes, [1987] 2 SCR 168, R v Biniaris, [2000] 1 SCR 381, R v W.H, 2013 SCC 22, R v Robinson, 2017 ONCA 645, R v Villaroman, 2016 SCC 33, Criminal Code, RSC 1985, c C-46, s 686(1)(a)(i)

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be ought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

John Polyzogopoulos
Events from this Firm
6 Feb 2019, Other, Toronto, Canada

When it comes to class actions, costs regimes vary across Canada. Ontario follows the traditional two-way costs regime while other jurisdictions like British Columbia have adopted a no cost regime.

In association with
Related Topics
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions