Case information

Contracts — Contracts of adhesion — Arbitration clause — Validity — Unconscionability — Public policy — Whether the enforceability of standard form contracts is a question of law, and therefore automatically subject to an exception to the competence-competence principle — Whether the brick wall exception to competence-competence requires proof that an individual plaintiff would not have the means to challenge the arbitrator’s jurisdiction, rather than proof that it would be uneconomical to determine an average class member’s claim on the merits — Whether a Canadian court can declare an international commercial arbitration agreement void ab initio on the sole basis of the public policy of undue hardship.

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.

The applicant, Binance Holdings Limited, operates the world’s largest cryptocurrency trading platform. Binance sold cryptocurrency derivatives to Canadians through its website, but it did not register with the Ontario Securities Commission or seek an exemption from registration. Binance also did not file a prospectus with respect to any of its securities offerings. The respondents are representative plaintiffs who commenced a proposed class action. The claim is based on s. 133 of the Ontario Securities Act, R.S.O. 1990, c. S.5, which provides purchasers with a right of action for recission or damages against a company selling securities for failure to file or deliver a prospectus.

Binance moved to stay the proceedings on the basis that the terms of use contract agreed to by users of the Binance website requires that any disputes be resolved by arbitration. The motion judge dismissed the motion for a stay in favour of arbitration. The Court of Appeal dismissed Binance’s appeal.