Case information

Contracts — Standard form contract — Arbitration clause — Unconscionability — Improvident arbitration clause imposed without consideration — Arbitration agreement found invalid — Refusal to stay proceedings in favour of arbitration — Whether Uber Technologies Inc. v. Heller, 2020 SCC 16, was intended to change law of unconscionability — Whether arbitration clauses in standard form contract presumptively unconscionable.

Case summaries are prepared by the Office of the Registrar of the Supreme Court of Canada (Law Branch). Please note that summaries are not provided to the Judges of the Court. They are placed on the Court file and website for information purposes only.

Ms. Pokornik, the proposed representative plaintiff, occasionally worked as a courier for SkipTheDishes (“Skip”). She accepted the agreement in force when she started (“2014 Agreement”). It did not contain an arbitration agreement or a class action waiver. Article 11 of that agreement provided that Skip could amend this agreement from time to time, and that the amendments would be effective upon posting. By continuing to provide services after the amendments, couriers would consent to be bound by the amendment. In 2018, Skip amended its agreement to include mandatory arbitration for all disputes and to preclude class actions. Couriers were notified of the amendments and were required to accept them by a specific date if they were to continue providing services through the Skip platform. The amendments said that continuing to provide services “after such posting constitutes your consent to be bound by this Agreement, as amended”. Ms. Pokornik informed Skip that she was accepting under protest, but signified her acceptance and worked four shifts in 2018 and 2019.

Skip filed a motion for a stay under s. 7(1) of The Arbitration Act, C.C.S.M., c. A120, arguing that the claim was subject to an arbitration agreement that required disputes to be resolved by arbitration, so the courts had no jurisdiction.

Finding that the 2014 Agreement was the applicable agreement, the motion judge dismissed the motion to stay the claim under s. 7(1) of The Arbitration Act, C.C.S.M., c. A120. The Court of Appeal held that the applicable agreement was actually the 2018 Agreement. As such, it applied the trial judge’s alternative findings and stayed the claim. As s. 7(6) did not allow an appeal from that finding, it quashed the appeal.