Pokornik v SkipTheDishes Restaurant Services Inc, 2024 MBCA 3

Citation: Pokornik v SkipTheDishes Restaurant Services Inc, 2024 MBCA 3 Date: 20240112 Docket: AI22-30-09856 IN THE COURT OF APPEAL OF MANITOBA Coram: Madam Justice Freda M. Steel Madam Justice Diana M. Cameron Madam Justice Janice L. leMaistre BETWEEN : ) J. T. Curry , ) A. Quinn and CHARLEEN POKORNIK ) B. Brown ) for the Appellant ) (Plaintiff) Respondent ) P. D. Edwards , ) S. Lombardi , - and - ) E. L. M. Edwards and ) C.

Smith SKIPTHEDISHES RESTAURANT SERVICES ) for the Respondent INC. ) ) Appeal heard: ) May 30, 2023 (Defendant) Appellant ) ) Judgment delivered: ) January 12, 2024 On appeal from 2022 MBKB 178 steel JA [ 1 ] This is an appeal from a decision of the motion judge dismissing the defendant’s, SkipTheDishes Restaurant Services Inc. (Skip), motion for a stay of proceedings in favour of arbitration.

The dismissal allows the plaintiff to pursue her claim against Skip by way of a class action in the courts, as opposed to being bound by an agreement to proceed to arbitration. [ 2 ] Although I have found that the motion judge erred in his analysis of section 7(1) of The Arbitration Act , CCSM c A120 [the Act ], I accept that he made a finding of unconscionability under section 7(2) (

b) of the Act . Section 7(6) of the Act bars appeals to this Court when such a finding is made; consequently, this Court is without jurisdiction to hear the appeal. For the reasons that follow, I would quash the appeal with costs. FACTS [ 3 ] Skip is a technology company headquartered in Winnipeg with operations in more than 100 cities across Canada. It is owned by a publicly traded European company. It provides a platform that connects vendors, couriers, and consumers for online ordering and/or delivery of food and beverages (the Skip platform).

Through the Skip platform, food and beverage orders are delivered by individuals who contract to drive as couriers. Each courier is required to sign a courier agreement to access and provide services through the Skip platform. Beginning in 2014, the plaintiff worked for Skip occasionally as a courier. [ 4 ] The courier agreement in force when the plaintiff began driving as a courier for Skip (the 2014 Agreement) included the following clause:

. . . . . . [Skip] may amend this Agreement from time to time. Amendments will be effective upon [Skip] posting the updated Agreement at this location. Your continued provision of the Services after such posting constitutes your consent to be bound by this Agreement, as amended. This Agreement represents the full and final understandings between the parties, and supersedes any and all previous understandings, commitments, and agreements, oral or written, pertaining to the Services. . . . . . . The plaintiff accepted the 2014 Agreement when she began working for Skip.

That agreement did not contain a requirement for arbitration or class action waiver. [ 5 ] In 2018, Skip amended the 2014 Agreement to include mandatory arbitration for all disputes and to exclude class actions (the 2018 Agreement). This was emailed to all couriers, who had to accept it by a specific date to continue to provide services through the Skip platform. The notice email included a link to an electronic copy of the 2018 Agreement. [ 6 ] Articles 17-18 and 20-22 of the 2018 Agreement set out the new framework for dispute resolution. A copy of these articles is attached as an Appendix to these reasons .

Article 17 defines the meaning of a “[d]ispute” as: . . . including any dispute or controversy arising out of or relating to this Agreement . . . or in respect of any legal relationship associated with or derived from this Agreement, including this Agreement’s . . . validity, existence, breach, termination, construction or application, or the rights, duties or obligations of any party to this Agreement”. [ 7 ]

Article 18 requires unresolved disputes to be submitted to arbitration in accordance with the Arbitration Rules of the ADR Institute of Canada. [1]

Article 20 designates “the seat of the arbitration” as Ontario, or another location agreed to by the parties. Skip confirmed that it is prepared to agree that the seat of the arbitration be Winnipeg, Manitoba, where Skip is headquartered and the plaintiff resides.

Article 21 states that Skip will pay the reasonable arbitration costs and

Article 22 provides that disputes will be resolved on an individual, not class, basis. [ 8 ]

Article 25 states that amendments to the agreement will be posted and that “[y]our continued provision of the Services after such posting constitutes your consent to be bound by this Agreement, as amended.”

Article 26 states that the 2018 Agreement replaces and supersedes any previous agreement between the courier and Skip, and it governs the legal relationship and all legal issues between the parties, including “any [d]ispute arising from or related to this Agreement or any previous agreement between You and us.” [ 9 ] On July 4, 2018, the plaintiff was contacted by her current lawyers about becoming the representative plaintiff in a class action against Skip and she agreed, retaining the lawyers on a contingency basis. On July 25, 2018, the class action lawsuit was filed and served.

On July 30, 2018, she emailed Skip, in accordance with the legal advice that she had received. In response, Skip advised her that she could not continue to work unless she accepted the 2018 Agreement. On July 31, 2018, she again emailed Skip, in accordance with the legal advice, to say that she did not agree with the terms of the 2018 Agreement and that she was accepting under protest so that she could continue to get shifts. Skip did not reply.

After accepting, the plaintiff worked four more shifts in 2018 and 2019. [ 10 ] In the main action, the plaintiff asked for a declaration that she was an employee of Skip and not an independent contractor, that Skip had breached the terms of applicable employment standards legislation and for damages. She also applied for an order that the claim proceed as a class action and filed a motion for certification. Skip’s position is that the plaintiff was an independent contractor, not an employee, and that she was not entitled to employment benefits.

At a 2019 case management conference, the action was put in abeyance pending the release of the Supreme Court of Canada’s decision in Uber Technologies Inc v Heller , 2020 SCC 16 [ Uber SCC]. [ 11 ] In 2020, Skip filed a motion for a stay of the action pursuant to section 7(1) of the Act , arguing that the plaintiff’s claim was subject to an arbitration agreement that required that disputes be resolved by arbitration (the motion).

Its position was that the Court had no jurisdiction to hear the action because, pursuant to section 7(1) of the Act , the action must be stayed in favour of arbitration with the issue of jurisdiction determined by an arbitrator, not by a judge. [ 12 ] The plaintiff never relied on the Skip platform for a regular income or to meet her living expenses. She had other sources of income and worked very sporadically for Skip, earning only $9,177.90 from Skip in four years.

THE MOTION JUDGE [ 13 ] The motion judge determined that the plaintiff’s action did not fall within section 7(1) of the Act because there was no arbitration agreement in place when the proceeding was commenced. He held that the action was brought pursuant to the 2014 Agreement. He dismissed the motion. [ 14 ] The motion judge determined that the 2014 Agreement governed instead of the 2018 Agreement for two reasons.

First, Skip unilaterally imposed the arbitration provisions in the 2018 Agreement that it relied upon for the motion after this action had been filed and served and these provisions were not retroactive. He held that the terms of

article 26 of the 2018 Agreement did not apply “retroactively” to pre-existing actions (at para 29). [ 15 ] Second, the motion judge held that the 2018 Agreement did not apply because the plaintiff never accepted its terms. She sent an email to a Help Centre representative employed by Skip saying that she did not agree with the amendments but was going to click “Agree” so that she could continue to work for Skip. He further held that Skip acquiesced to the plaintiff’s position when it failed to reply to this email.

[ 16 ] The motion judge also found that, if he was wrong in his section 7(1) analysis, meaning the 2018 Agreement and the arbitration clause contained within it did apply, he would have stayed the proceeding under section 7(2) (

b) of the Act because the arbitration clause was unconscionable and unsupported by consideration. [ 17 ] As to unconscionability, the motion judge held that there was an inequality of bargaining power because the plaintiff was powerless to negotiate any of the terms of the 2018 Agreement. It was an improvident bargain because it eliminated her ability to access the courts and precluded class proceedings, which provided Skip with an unfair advantage. [ 18 ] The motion judge also found a lack of consideration.

The ability to provide courier services on competitors’ platforms existed under the 2014 Agreement and was not fresh consideration. The arbitration clause itself was not fresh consideration because the removal of a right to use or participate in a class action is not a benefit to a party. [ 19 ] Skip appeals the motion judge’s decision on several grounds, as follows: 1. the motion judge erred in undertaking an inquiry under

section 7 of the Act , instead of referring the matter to arbitration; 2. the motion judge erred by finding that the 2018 Agreement did not govern the parties’ relationship; and 3. if the 2018 Agreement is applicable, the motion judge erred in his application of section 7(2) . RELEVANT STATUOTRY PROVISIONS [ 20 ] The relevant provisions of the Act read (at sections 6 - 7 , 17(1) ): COURT INTERVENTION Court intervention limited 6 Subject to subsection 5.1(3), no court may intervene in matters governed by this Act , except for the following purposes, as provided by this Act : (

a) to assist the arbitration process; (

b) to ensure that an arbitration is carried on in accordance with the arbitration agreement; (

c) to prevent unfair or unequal treatment of a party to an arbitration agreement; (

d) to enforce awards. Stay 7(1) Subject to subsection (2), if a party to an arbitration agreement commences a proceeding in a court in respect of a matter in dispute to be submitted to arbitration under the agreement, the court shall, on the motion of another party to the arbitration agreement, stay the proceeding. Refusal to stay 7(2) The court may refuse to stay the proceeding in only the following cases: (

a) a party entered into the arbitration agreement while under a legal incapacity; (

b) the arbitration agreement is invalid; (

c) the subject-matter of the dispute is not capable of being the subject of arbitration under Manitoba law;

(

d) the motion was brought with undue delay; (

e) the matter in dispute is a proper one for default or

summary judgment. Arbitration during motion 7(3) An arbitration of the matter in dispute may be commenced and continued while the motion is before the court. No arbitration if stay refused 7(4) If the court refuses to stay the proceeding, (

a) no arbitration of the matter in dispute shall be commenced; and (

b) an arbitration that has been commenced shall not be continued, and anything done in connection with the arbitration before the court’s refusal is without effect. Partial stay 7(5) The court may stay the proceeding with respect to the matters in dispute dealt with in the arbitration agreement and allow the proceeding to continue with respect to other matters if it finds that, (

a) the agreement deals with only some of the matters in dispute in respect of which the proceeding was commenced; and (

b) it is reasonable to separate the matters in dispute dealt with in the agreement from the other matters. No appeal 7(6) There is no appeal from the court’s decision under this section. JURISDICTION OF ARBITRAL TRIBUNAL Ruling on jurisdiction and objections 17(1) An arbitral tribunal may rule on its own jurisdiction to conduct the arbitration and may in that connection rule on objections with respect to the existence or validity of the arbitration agreement. DECISION Standard of Review [ 21 ] What is this Court’s standard of review when reviewing

section 7 matters? In TELUS Communications Inc v Wellman , 2019 SCC 19 [ Wellman ], the majority held that “[t]he issue on appeal is one of statutory

interpretation and is therefore properly characterized as a question of law [citations omitted]. As such, the standard of review is correctness” (at para 30). Although the Supreme Court did not address the question of standard of review in Uber SCC, in that case, the Ontario Court of Appeal held that the standard of review was correctness for two reasons (see Heller v Uber Technologies Inc , 2019 ONCA 1 at para 19 [ Uber CA]). First, the central questions raised related to the proper application of arbitration legislation, which were questions of law.

Second, the contract in question was a standard form contract with ramifications beyond the case at bar which, according to Ledcor Construction Ltd v Northbridge Indemnity Insurance Co , 2016 SCC 37 at para 46 [ Ledcor ], attracted the correctness standard (see Uber CA at para 19 ; see also Abbey Resources Corp v Andjelic Land Inc , 2020 SKCA 125 at para 27 ; and Chrysler Canada Inc v Eastwood Chrysler Dodge Ltd et al , 2010 MBCA 75 at para 25 [ Chrysler ]).

[22] In Hopkins v Ventura Custom Homes Ltd, 2013 MBCA 67 [Hopkins], Beard JA agreed that the

interpretation of thearbitration provisions of an agreement is reviewed on a standard of correctness with respect to section 7(1), but that the standard ofreview with respect to section 7(2)(

b) is dependent on the nature of the question. [23] Normally, given that this case deals with a standard form contract, the principles arising from Ledcor would prevail. Inthis context, this would mean the correctness standard should be applied to decisions under sections 7(1) and 7(2). See also Pearce v 4Pillars Consulting Group Inc, 2021 BCCA 198 [Pearce], where the Court held that, although contractual

interpretation usually involvesmixed fact and law, in a standard form contract the factual matrix is much less important and so the

interpretation may be a pure questionof law reviewable on a standard of correctness (at para 82). However, in this case, as in Williams v Amazon.com Inc, 2023 BCCA 314[Williams], leave to appeal to SCC requested, the factual matrix specific to the parties can be of significance where issues ofunconscionability and public policy are involved. Therefore, “a finding that an arbitration agreement is neither unconscionable norcontrary to public policy for the purpose of s. 15(2) of the Arbitration Act [Arbitration Act, RSBC 1996, c 55 (since repealed)] isproperly treated as a matter of mixed fact and law.

As such, it is reviewable for palpable and overriding error” (ibid at para 60). Did the Motion Judge Err in Undertaking an Inquiry Under

Section 7 of the Act, Instead of Referring the Matter to Arbitration? Did the Motion Judge Have Jurisdiction Under Section 7(1) of the Act to Determine the Question of Jurisdiction or Did Section17(1) Apply and the Question of Jurisdiction Should Have Been Determined by an Arbitrator? [24] Section 7(1) of the Act is mandatory. The court does not have discretion to deny a motion to stay in favour ofarbitration.

Section 7(1) provides that, when a party to an arbitration agreement commences a proceeding in respect of a dispute and theparties have agreed to submit to arbitration, the court must stay the proceeding in favour of arbitration, unless one of the prescribedexceptions in section 7(2) of the Act applies. The use of the word “shall” (at section 7(1)) represents a clear policy choice favouring theenforcement of arbitration agreements.

The onus under section 7(1) of the Act lies with the party seeking the stay. [25] In Peace River Hydro Partners v Petrowest Corp, 2022 SCC 41 [Peace River], the Supreme Court clarified the two-parttest to impose a stay of proceedings in favour of arbitration. This mirrors the test enunciated by this Court in Hopkins. The court mustfirst determine if the moving party has established an arguable case that the court proceedings are “in respect of a matter in dispute to besubmitted to arbitration under the agreement” (the Act at section 7(1)).

In short, the court must first decide if there was an agreement toarbitrate (see Goberdhan v Knights of Columbus, 2023 ONCA 327 at para 14). If the answer is no, then the court will not grant a stay. [26] The standard of proof under section 7(1) for an arguable case is lower than the usual civil standard. A moving partyneeds only to establish an arguable case that the prerequisites are met to engage the mandatory stay provision. In undertaking thisanalysis, the court should adopt a broad and liberal approach to the

interpretation of arbitration agreements (see Wardrop v EricssonCanada Inc, 2021 MBQB 183 [Wardrop]). If an arbitration clause is capable of two meanings, one of which provides for arbitration ofthe dispute in question, courts should favor that

interpretation (ibid at para 27; and Hopkins at para 62). [27] Turning to the second part of the test, if the dispute is covered by an arbitration clause, then a stay will follow unlessthe opposing party can establish, on a balance of probabilities, that one of the exceptions in section 7(2) is present (see Peace River atpara 89). If one of the exceptions is present, then the court may but need not refuse to stay the court proceedings (see Wardrop at para95). [28] On its face, section 7(6) would appear to preclude this appeal.

However, the parties have agreed that an appeal ispermissible under section 7(1) of the Act where, as here, the stay was refused because the Court held that there was no agreement toarbitrate. I agree. [29] Some decisions made under

section 7 are subject to appeal despite section 7(6). It is important to determine the exactnature of both the question under appeal and the underlying dispute to determine the applicability of section 7(6), and whether there isjurisdiction to entertain an appeal (see Hopkins at para 48). Where the decision to refuse a stay is based on a finding that there is noarbitration agreement, or the dispute in question does not fall within the agreement, then the decision to refuse a stay is not made underthe Act.

Therefore, in such circumstances, an appeal is not barred by section 7(6) (see Alexander M Gay, Alexandre Kaufman & JamesPlotkin, Arbitration Legislation of Ontario: A Commentary, 4th ed (Toronto: Carswell, 2023) at 254; see also Toronto StandardCondominium Corporation No 1628 v Toronto Standard Condominium Corporation No 1636, 2020 ONCA 612 [Toronto Standard]; andOntario Medical Assn v Willis Canada Inc, 2013 ONCA 745). (Later in these reasons, I will return to the issue of section 7(6), andwhether that

section eliminates the jurisdiction of this Court to review decisions under section 7(2) and whether in fact they are decisionsat all or simply obiter.) [30] Skip argues that the motion judge should not have undertaken an analysis of which agreement governed because thecompetence-competence principle required this comprehensive inquiry to be first made by an arbitrator. The competence-competenceprinciple holds that arbitrators have the power to rule on their own jurisdiction and should be given the first opportunity to do so.

Itreflects the presumption “that the parties intended an arbitrator to determine the validity and scope of their agreement” (Peace River atpara 41; see also paras 38-40). In Manitoba, this principle is codified in section 17(1) of the Act.

It expressly empowers an arbitrator torule on their own jurisdiction and to hear challenges to the existence or validity of the arbitration agreement. [31] Rogers Wireless Inc v Muroff, 2007 SCC 35 [Rogers Wireless] and Dell Computer Corp v Union des consommateurs,2007 SCC 34 [Dell] reaffirmed the general principle that, normally, challenges to the jurisdiction of an arbitrator must first be referred tothe arbitrator, unless they involve pure questions of law or questions of mixed fact and law that can be determined by a superficial reviewof the evidence on the record (Rogers Wireless at para 11).

Where the analysis involves a question of mixed fact and law, a court shouldonly conduct a superficial review and decide the issue where “the necessary legal conclusions can be drawn from facts that are eitherevident on the face of the record or undisputed by the parties (see Uber SCC at para 36). Where questions of fact alone are in dispute, acourt should normally refer the case to arbitration (ibid at para 32; and Dell at para 85; see also Dalimpex Ltd v Janicki, at para 22 (ONCA)). [32] Skip argues that the issue of whether the 2018 Agreement applied was a question of mixed fact and law, which required

more than a superficial consideration of the evidence. Skip submits that the motion judge purported to undertake a superficial review ofthe record, but his analysis went beyond undisputed facts or facts evident on the face of the record. According to Skip, given section7(6) of the Act and the competence-competence principle, this analysis should first have been made by an arbitrator. [33] I disagree.

The decision as to which agreement governed was a question of law or at least a question of mixed fact andlaw, where “the necessary legal conclusions can be drawn from facts that are . . . evident on the face of the record” (Uber SCC at para36). The record and evidence filed allows for a decision based on the applicable legal principles and the language of the standard formcontracts. It should be noted that, when arguing that this Court should decide the case de novo, Skip acknowledged that “the record iscomplete, and the evidence relied upon was a paper record.” See also Uber SCC at paras 44-46.

Did the Motion Judge Err by Finding that the 2018 Agreement Did Not Govern the Parties’ Relationship? [34] The motion judge held that there was no arbitration agreement in place when this action was commenced because, atthat time, the 2014 Agreement governed. He held that the 2018 Agreement did not apply retroactively since the action was commencedbefore the coming into force of that agreement and, that there was no new consideration for it. Moreover, he held that the plaintiff didnot accept the terms of the 2018 Agreement.

Therefore, he concluded that section 7(1) did not apply. [35] Skip submits that the motion judge erred by applying the wrong legal test to the question of contract formation. Contract formation requires an objective manifestation of an offer and an objective manifestation of acceptance (see Ethiopian OrthodoxTewahedo Church of Canada St Mary Cathedral v Aga, 2021 SCC 22 at paras 35-37 [Ethiopian Orthodox]). In Ethiopian Orthodox, theSupreme Court stated: “The test for an intention to create legal relations is objective.

The question is not what the parties subjectivelyhad in mind but whether their conduct was such that a reasonable person would conclude that they intended to be bound” (at para 37). [36] The 2014 Agreement contained three relevant provisions. It stated that Skip may alter the terms on which it willcontinue to offer its platform to the plaintiff; that Skip will give notice of the new terms; and that continued provision of services aftersuch notice would constitute her consent to be bound by them.

Article 26 of the 2018 Agreement states that: . . . this Agreement replaces and supersedes any previous agreement between You and us, and governs the legal relationship and all legalissues between You and us, including but not limited to any Dispute arising from or related to this Agreement or any previous agreementbetween You and us. [37] To reiterate, a “[d]ispute” is defined in

article 17 as including the “negotiation, validity, existence, breach, termination,construction or application” of the 2018 Agreement. The plaintiff continued to use the Skip platform after the 2018 Agreement cameinto force, and the evidence indicates that she was well aware of the timing of the amendments and their contents. [38] Another important feature of this case is the presence of

article 11 in the 2014 Agreement, which the plaintiff agreesgoverned her relationship with Skip. In

article 11, the parties agreed that Skip could amend the 2014 Agreement from time to time andthat the plaintiff’s continued provision of services afterwards constituted her consent to be bound by the amendments. [39] Clauses of this nature have become increasingly common in our society with respect to standard form contracts. It iscommon these days for users to be notified of changes and given the opportunity to discontinue the use of the service or else accept thechanges by means of continued use.

There are strong commercial efficacy reasons for enforcing these types of reasonable variations.[2] [40] I acknowledge that the plaintiff also sent an email to Skip stating, “I do not agree”. However, in resolving any questionof contract formation, the motion judge was required to ask whether the plaintiff’s conduct with respect to the 2018 Agreementdemonstrated an objective outward manifestation of assent. He gave decisive weight to the plaintiff’s communication of her subjectiveposition that she did not agree with the amendments.

It was an error to rely solely on the plaintiff’s email communications to Skip’sHelp Centre of her subjective intentions as to whether she accepted the terms of the 2018 Agreement. By the terms of

article 11 of the2014 Agreement, continued services after amendments constitutes consent to the amendments. The plaintiff clicked “I Agree” in theSkip platform and continued to perform deliveries after the 2014 Agreement was amended, which was a clear objective manifestation ofassent. She is therefore bound by the changes because she agreed in the 2014 Agreement that she would be. Her motives or subjectiveagenda in saying that she agreed under protest were irrelevant in determining whether a contract was formed. The fact is that she didclick “I Agree”.

Under both the 2014 Agreement and the 2018 Agreement, she was bound by the amendments. [41] The motion judge also found that there was no consideration to support the 2018 Agreement; in particular, no freshconsideration given to support the new arbitration clause and the class action waiver. [42] Generally speaking, contractual variations must be supported by fresh consideration; however, the performance ofservices may constitute fresh consideration (see Mitchell McInnes, The Canadian Law of Unjust Enrichment and Restitution, 2nd ed(Toronto: LexisNexis, 2022) at 642; and GHL Fridman, The Law of Contract in Canada, 6th ed (Toronto: Carswell, 2011) at 549).

Forexample, in Kanitz v Rogers Cable Inc, (ONSC) [Kanitz], the user agreement included an amendment clause. Likethe case at bar, that case involved the interplay between arbitration legislation and class proceedings legislation. The agreement in thatcase (as in this case) stated that the continued use of Rogers’ services constituted acceptance of any such amendments. Rogers Cableamended the user agreement to add an arbitration clause. The Court found that the plaintiffs were deemed to have accepted theamendments because they continued to use Rogers Cable’s service after being provided with notice of them.

The arbitration clause wasthus enforced, and a stay of proceedings was ordered. [43] More recently, in Difederico v Amazon.com, Inc, 2023 FCA 165 [Difederico], leave to appeal to SCC requested,Amazon brought a motion for a stay of proceedings on the grounds that the parties were subject to an arbitration agreement. As in thecase at bar, Amazon made changes to the governing agreement after court proceedings had begun. One of the appellants continued to

make purchases through Amazon.ca even after instituting her proposed class action. Ultimately, the judge found that the 2022 arbitration agreement was binding and enforceable. The Federal Court of Appeal dismissed the appeal. [ 44 ] Continued access to the Skip platform would constitute consideration to support the 2018 Agreement.

Relying on both Kanitz and Difederico , I find it was open to Skip to vary the terms of the 2014 Agreement and the plaintiff’s continued use of the Skip platform, after receiving notice of these changes, created a binding contract incorporating the amended provisions. [ 45 ] Besides the fact that the plaintiff continued to use the Skip platform, she also received benefits for the 2018 Agreement, such as a new, seven-day notice for termination. [ 46 ] The filing of the statement of claim a day before the 2018 Agreement was scheduled to take effect is not relevant to whether the 2014 Agreement or the 2018 Agreement applies in this case.

Pleadings are simply documents that contain the allegations of one party against another. They do not crystalize the legal rights or obligations of the parties. Instead, “the rights of the parties must depend upon the facts proved and not upon the claim made in the writ” ( Bucke (Township) v New Liskeard Heat & Power Co , 1909 CarswellOnt 588 at 2 (Div Ct) ). [ 47 ] In

summary, I find that the motion judge erred in finding that the 2014 Agreement prevailed and in denying a stay under section 7(1) of the Act . However, that does not end the matter. If the 2018 Agreement is Applicable, Did the Motion Judge Err in His Application of Section 7(2)?

Are All or Any Appeals Barred by Section 7(6) of the Act ? [ 48 ] In the motion judge’s decision, he stated that there were two issues in this case (at para 20): . . . 1) Pursuant to s. 7(1) of the Act , which agreement governs the relationship between the parties, the [2014 Agreement] or the [2018 Agreement]? 2) If the arbitration clauses of the [2018 Agreement] apply, should this Court refuse to stay the proceeding because the arbitration agreement is invalid by virtue of either unconscionability or lack of consideration, or on the basis of public policy, or because the agreement is contrary to the Code [ The Employment Standards Code , CCSM c E110 ], or because the matter in dispute is a proper one for default or

summary judgment? [emphasis in original] [ 49 ] Although the motion judge denied the stay based on section 7(1) , he went on to address the second issue.

He stated (at para 32): If I am wrong in my analysis under s. 7(1) of the Act and the [2018 Agreement] applies and the arbitration agreement contained within the [2018 Agreement] is binding on the parties, I find that the [2018 Agreement] is invalid on grounds of unconscionability and because of an absence of consideration. . . . [emphasis in original] [ 50 ] In his conclusion, the motion judge wrote (at paras 45-46): I find that [Skip] has not met its onus under s. 7(1) of the Act to satisfy me that this Court should stay this action.

I further find that the arbitration clause contained in the [2018 Agreement] is invalid under s. 7(2) (

b) of the Act because it is unconscionable and because it is also invalid for want of consideration.

[emphasis in original] [51] There is a different standard for proving that an exception exists under section 7(2). The onus is on the plaintiff toshow, on a balance of probabilities, that one of the limited exceptions is present (see Husky Food Importers & Distributors Ltd v JHWhittaker & Sons Limited, 2023 ONCA 260 at para 29). Cases dealing with section 7(2)(

b) have done so in the context of whether thearbitration clause is invalid from a traditional contractual perspective. Those perspectives include whether the clause is void ab initio,arose due to fraud, whether there was a lack of capacity or whether the contract was unconscionable etc. The exceptions are allsituations “where it would be either unfair or impractical to refer the matter to arbitration” (Wellman at para 65). [52] In Kints v Kints, 1998 CarswellOnt 3188 (Ct J (GD)), Heeney J wrote (at para 13): . . . Subsection 7(2)(2) permits the Court to refuse a stay where “the arbitration agreement is invalid”.

In this case, no attack has beenmade on the essential validity of the contract. It was in writing, duly executed by the parties, and there are no allegations of undueinfluence or fraud or anything of that nature. . . . See also Ilta Grain Inc v Western Grain Cleaning, 2013 SKQB 5. [53] If any of the exceptions in section 7(2) apply, then the court has the discretion of whether or not to grant a stay (seeUber CA at para 26). Obiter Versus Alternative Grounds [54] Skip submits that the motion judge’s comments with respect to section 7(2)(

b) were obiter. As such, it argues in favorof this Court conducting a de novo assessment pursuant to section 26(1) of The Court of Appeal Act, CCSM c C240 [the CA Act], asopposed to returning the issue to the Court below. For this purpose, Skip argues that the record is complete, and the evidence reliedupon was a paper record. [55] In support of this proposition, it cites Thielmann v The Association of Professional Engineers and Geoscientists of theProvince of Manitoba, 2020 MBCA 8 at paras 80-81. That case was about prematurity in the professional discipline context and I do notsee its relevance to this case.

In that case, an engineer facing a disciplinary hearing for professional incompetence tried to prohibit thehearing on jurisdictional grounds and because of a reasonable apprehension of bias. He was unsuccessful. In that case, this Court gaveits decision pursuant to section 26(1) of the CA Act, rather than sending the matter back to the application judge. However, there was noquestion that the application judge had made a decision, it was simply a decision made in error.

Here, the issue is whether the reasons ofthe motion judge with respect to section 7(2) of the Act are part of his decision or simply an obiter comment. [56] This determination is important because section 7(6) of the Act states: “There is no appeal from the court’s decisionunder this section.” [57] As I will explain, I find that the decision of the motion judge was an alternative finding and not obiter. The issue infront of the motion judge was whether the dispute should be permitted to proceed in court or be referred to arbitration. This questionrequired the motion judge to consider a two-part test under

section 7 of the Act; was there an arbitration clause (see section 7(1)) and, ifthere was an arbitration clause, was it valid? The fact that the motion judge could have, had he chosen to do so, stopped his decisionafter finding that there was no applicable arbitration clause, does not make the rest of his reasons obiter simply because he chose to makea determination under section 7(2).

Determinations by courts are commonly made on more than a single ground. [58] The Ontario Court of Appeal recently reviewed Canadian jurisprudence on this point in Catalyst Capital Group Inc vVimpelCom Ltd, 2019 ONCA 354, leave to appeal to SCC refused, 38746 (14 November 2019) (at para 32): Canadian courts have consistently rejected the argument that a judicial finding is merely dictum or collateral because there was anothersufficient basis for the judge’s decision. In Stuart v. Bank of Montreal (1909), (SCC), 41 S.C.R. 516, [1909] S.C.J.

No.19, the Supreme Court rejected the argument that a judicial finding that is “a distinct and sufficient ground for its decision (is) a meredictum because there is another ground upon which, standing alone, the case might have been determined”: p. 534 S.C.R., per Duff J.(Fitzpatrick C.J.C. concurring), pp. 539-40 S.C.R., per Anglin J., quoting New South Wales Taxation Commissioners v. Palmer, [1907]A.C. 179 (P.C.), at p. 184.

More recently, the Federal Court of Appeal held that a judge’s finding on one necessary element of a claimgave rise to issue estoppel even though the judge had earlier in his reasons reached a conclusion on another element that was sufficient todispose of the claim: Pharmascience Inc. v. Canada (Minister of Health), [2007] F.C.J. No. 506, 2007 FCA 140, 282 D.L.R. (4th) 145,at paras. 34-35. [59] There are many cases that discuss the nature of obiter findings versus alternative grounds for decision.

For example, inJohannesson v West St Paul (Rural Municipality), (MBCA), rev’d (SCC), [1952] 1 SCR 292, thisCourt commented that a particular statement in a Privy Council case was clearly “not obiter. It was one of the grounds given for the

decision” (at p 865). [60] In R v Kiss, 2018 ONCA 184, Paciocco JA, writing for the Court, observed, “[i]n Hill [R v Hill, 2015 ONCA 616],Doherty J.A., writing for the court, relied on the principle I just described to finally dispose of a ground of appeal. The holding is notobiter simply because the appeal was successful on another issue” (at para 44). [61] More recently, in Glegg v Glass, 2020 ONCA 833, Brown JA, writing for the Court, found that “the application judge’sconclusion on solicitor-client privilege was not obiter.

His reasons are clear that it was a discrete basis on which he dismissed theapplication as contrary to public policy” (at para 57). [62] I find that the reasons given by the motion judge with respect to section 7(2) are not obiter but alternative grounds fordecision. Consequently, section 7(6) comes into play. Is This Appeal Barred Because of Section 7(6) of the Act? [63] The motion judge was quite clear as to his findings on the invalidity of the 2018 Agreement based onunconscionability.

As indicated later in these reasons (as an obiter comment), the jurisprudence with respect to arbitration agreementsand class action waivers in non-consumer situations is still developing after the decision of the Supreme Court in Uber SCC. Had it beennecessary for me to do so, I would have found that the motion judge did not err in finding that, on a balance of probabilities, the plaintiffhad proven her case under section 7(2)(b). [64] However, it is unnecessary for me to make a final decision on this point, as section 7(6) bars an appeal in this case.

Theauthorities seem to indicate that section 7(6) does not allow an appeal of the motion judge’s decision that there was an arbitration clausein effect, but that it was invalid (see SNC-SNAM, GP, a partnership between SNC-Lavalin Inc and Snamprogetti Canada Inc andSnamprogetti Canada Inc v Opron Maritimes Construction Ltd et al, 2011 NBCA 60 at para 40). [65] Section 7(6) has not been the subject of much jurisprudence. The previous Manitoba cases on this point did not decidethis issue. In Bloomer Hotel Corp et al v Boehm Hotel Corp et al, 2009 MBCA 68, this Court did not mention section 7(6).

In Chrysler,the motions judge did not address section 7(2) in his decision. I am aware that in Hopkins, this Court held that section 7(6) did not barthe appeal in that case. However, in that case, this Court concluded that the motion judge never made a finding that the agreement or thearbitration clause were invalid under section 7(2). Analyzing the motion judge’s reasons, Beard JA concluded that (at paras 95-96): Thus, it is clear that, while the motion judge said that he was invoking s. 7(2)(b), he did not find that the criterion in s. 7(2)(

b) was met. That being the case, s. 7(6) is not engaged to prevent this court from considering this aspect of his decision on appeal. Given that the motion judge did not find that either the Agreement, or the arbitration clauses, was invalid, he clearly misdirected himselfas to the

interpretation of s. 7(2)(

b) of the Act and, thereby, committed an error of law. As a result, no deference is owed to his decision. [66] Ultimately, the appeal in Hopkins was allowed and a stay under section 7(1) was granted (ibid at para 101). [67] This is an important point of distinction between the case at bar and Hopkins. In the case at bar, the motion judge did,in fact, make a finding that at least one of the exceptions listed in section 7(2) was met. [68] The Ontario and Manitoba statutory regimes for arbitration are similar.

In Ontario, as in Manitoba, there has been littleconsideration of the statutory bar to appeal when the decision to refuse a stay arises as a result of invalidity, as opposed to the disputefalling outside of the arbitration agreement. In MDG Kingston Inc v MDG Computers Canada Inc, 2008 ONCA 656, there was nodiscussion of the bar to the appeal. In Haas v Gunasekaram, 2016 ONCA 744, the Court observed that section 7(6) “does not precludean appeal from an order refusing to grant a stay on the ground that the matter is not a proper subject for arbitration” (at para 3, n 1).

Andsee Ismail v First York Holdings Inc, 2023 ONCA 332, which found that a decision to refuse a stay is not made under the Act where it isbased on a finding that there is no arbitration agreement “and therefore an appeal is not barred by section 7(6)” (at para 25). [69] In general, the cases do not seem to distinguish between a situation under section 7(1), where the dispute in question isnot covered by an arbitration agreement, and a situation under section 7(2)(b), where the arbitration agreement is invalid because offraud, unconscionability or a similar reason. [70] With respect to section 7(1), it is clear that the Act will not apply if there is no arbitration clause, or the dispute is notcovered by the arbitration clause.

In those circumstances, the prohibition against an appeal in section 7(6) is not applicable (see Huras vPrimerica Financial Services Ltd, at para 10 (ONCA); see also Toronto Standard at para 47; and Mantini v SmithLyons LLP, at para 16 (ONCA), leave to appeal to SCC refused, 29893 (4 March 2004)). [71] However, there must be a distinction between section 7(1) and section 7(2)(b). Validity and application are notsynonymous. Each

section must be given a different

interpretation in accordance with the rules of statutory

interpretation. It is a well-known principle of statutory

interpretation that no legislative provision should be interpreted so as to render it repetitive. Every provisionof a statute should be interpreted as having a meaning, a function and a distinct idea (see Ruth Sullivan, The Construction of Statutes, 7thed (Toronto: LexisNexis, 2022) at 208, 211; and R v Proulx, 2000 SCC 5 at para 28). In Heritage Capital Corp v Equitable Trust Co,2016 SCC 19, the Supreme Court stated: “There is a presumption that the legislature ‘avoids superfluous or meaningless words, that itdoes not pointlessly repeat itself or speak in vain’” (at para 40).

As well, the two sections “ought to remain analytically distinct” becausethe burden of proof shifts between them (Peace River at para 77).

[ 72 ] In the case at bar, the motion judge erred in his decision with respect to section 7(1) . The dispute in question is covered by the 2018 Agreement, which contains an arbitration clause. However, he made alternative findings under section 7(2)(

b) with respect to the validity of that clause, which is a different analysis than the one conducted in section 7(1) . [ 73 ] In

summary, the only decisions relating to

section 7 of the Act that can be appealed, in light of section 7(6), are findings that the dispute is not governed by an arbitration clause under section 7(1). Such a decision ousts the application of the Act completely. A decision granting a stay pursuant to section 7(1) cannot be appealed. A refusal to grant a stay pursuant to section 7(2) cannot be appealed (see Paulpillai Estate v Yusuf , 2020 ONCA 655 at paras 46-48 ). [ 74 ] The motion judge’s findings regarding section 7(2) are alternative grounds for his decision. Consequently, the section 7(6) bar operates, and the appeal should be quashed.

This supports the policy behind the Act , to prevent lengthy preliminary disputes regarding forum and jurisdiction, which simply increase costs and delay resolution. Unconscionability [ 75 ] Although it is not necessary for me to do so, I would also say that, similar to Uber SCC, the motion judge was able to come to a decision that the 2018 Agreement was unconscionable based on a superficial review of the record under the Dell framework (see para 33 ; Uber SCC at paras 32, 37; and Dell ). The question of unconscionability did not have to be decided in this forum on a final basis.

This was only a preliminary motion on the question of jurisdiction. The plaintiff merely had to show, on a balance of probabilities, that she fell within one of the exceptions contained in section 7(2), taking into account that, in a motion to stay a proceeding, the court presumes that the plaintiff can prove that which she pleads.

Thus, the court normally proceeds on the basis that the plaintiff’s allegations are true or at least capable of being proven (see Uber CA at para 27 ; and Seidel v TELUS Communications Inc , 2011 SCC 15 at para 8 ). [ 76 ] Although the justice system was initially skeptical of arbitration as a dispute resolution system, it was soon accepted as an effective system and the resulting legislation emphasized deference to arbitration.

Especially in commercial disputes, arbitration was recognized as providing a simpler, faster, less expensive and less formal process for resolving disputes thereby minimizing costly and time-consuming court procedures. [3] [ 77 ] However, with the rise in standard form contracts and the inclusion of mandatory arbitration clauses in those contracts, the assumption that arbitration was a joint choice of the parties became illusory. In a standard form contract, the parties do not negotiate terms. The contract is put to the receiving party as a take it or leave it proposition.

Consequently, a problem of controlling unfair terms in standard form contracts has arisen. [4] [ 78 ] Many common law jurisdictions (i.e., the UK, Ireland, Australia, and New Zealand) have all legislated controls in this area by adopting legislation protecting consumers from the potential unfairness of standard form contracts. See, for example, Moore, which provides that “a standard form term that is unfair is unenforceable against the form recipient” (at p 556) (footnote omitted).

Concerns about the unfairness of mandatory arbitration clauses led the Ontario Legislature to enact the Consumer Protection Act, 2002 , SO 2002, c 30, Sch A , provisions invalidating mandatory arbitration clauses in consumer agreements (see Griffin v Dell Canada Inc , 2010 ONCA 29 ). Similarly,

section 11.1 of Quebec’s Consumer Protection Act , CQLR c P-40.1 , prohibits any stipulation that obliges a consumer to refer a dispute to arbitration, as well as any stipulation that attempts to prevent a class action. By virtue of the same section, consumers have the option of agreeing to arbitration after a dispute has arisen.

Section 172 of British Columbia’s Business Practices and Consumer Protection Act , SBC 2004, c 2 , has been interpreted to oust mandatory arbitration clauses but only in relation to claims brought under that particular

section (see Difederico at para 80 ; see also Ferris at p 12). [ 79 ] Yet, critics have lamented the fact that there is no overt control, whether legislated or judge-made, of relatively general application for confronting unfairness in standard form contract terms in Canada. However, the jurisprudence took a significant leap in this area with the decision in Uber SCC. [ 80 ] In Uber SCC, the majority of the Supreme Court found that the arbitration agreement made it practically impossible for one party (Mr. Heller, an Uber driver) to arbitrate.

Uber’s services agreement included mandatory arbitration and choice of law clauses. The place of arbitration was Amsterdam and the up-front costs to begin an arbitration were equivalent to Mr. Heller’s gross annual income from his full-time work as an Uber driver. Under these facts, the Supreme Court was concerned that a stay might result in a situation where the matter would never be resolved.

They held that “the court must determine from the supporting evidence whether there is a real prospect that, if the stay is granted, the challenge may never be resolved by the arbitrator” ( ibid at para 44). [ 81 ] The Supreme Court explained that the doctrine of unconscionability has two elements: an inequality of bargaining power; and a resulting improvident transaction. An inequality of bargaining power exists when one party cannot adequately protect their interests in the contracting process.

A bargain is improvident if it unduly advantages the stronger party or unduly disadvantages the more vulnerable party ( ibid at para 74). [ 82 ] By itself, a standard form contract does not establish an inequality of bargaining power ( ibid at para 88). However, the Supreme Court cautioned that standard form contracts have the potential to enhance the stronger party’s advantage at the expense of the weaker party “through choice of law, forum selection, and arbitration clauses that violate the adhering party’s reasonable expectations by depriving them of remedies” ( ibid at para 89).

In conclusion, they found that “[w]hen arbitration is realistically unattainable, it amounts to no dispute resolution mechanism at all” ( ibid at para 97). Thus, the arbitration clause was found to be invalid. [ 83 ] The Supreme Court’s decision cleared the way for drivers to pursue a class action against Uber by avoiding the arbitration clause. Yet, more broadly, it is not clear from the Court’s decision whether arbitration clauses would always be unenforceable—much less whether other types of clauses that are used to thwart class actions would also be unenforceable.

With respect to class action waivers, the Court did not make a blanket statement that standard form terms will be unconscionable wherever they obstruct access to class actions (see Moore at p 574). [ 84 ] There have been several appellate cases that have applied the Uber SCC framework. All of them have been situations

where the decision was made under section 7(1) to grant a stay—consequently section 7(6) operated to bar an appeal. As well, none of the access to justice concerns that animated Uber SCC were present in those cases—the cost of the arbitration was not prohibitive, and the barriers to arbitration present in Uber SCC were not present in these cases (see Difederico ; and Irwin v Protiviti , 2022 ONCA 533 ). [ 85 ] The inequality of bargaining power analysis from Uber SCC seems equally applicable in the case at bar. However, the clauses at issue in this case are not as lopsided as the Uber arbitration clause.

As well, the presence of a standard form contract, an arbitration clause and a class proceeding waiver by themselves are not determinative (see Petty v Niantic Inc , 2023 BCCA 315 , leave to appeal to SCC requested; and Williams at para 171 ). It cannot be that removing access to the courts leads to an improvident bargain as that would mean all mandatory arbitration clauses would lead to a finding of unconscionability.

So, in which situations will the practical effect of the arbitration clause preclude resolution altogether for the vast majority of prospective class members and therefore lead to unconscionability? [5] [ 86 ] In the case at bar, the significant factors are the presence of the class action waiver and the nature of the contract. A class action waiver is obviously to the advantage of Skip.

Its 2020 Annual Report [6] states that the arbitration provision could “significantly reduc[e] the size of any class action and the related risks” (at p 235). [ 87 ] A case closer to the one at bar, as opposed to a consumer action, is the case of Pearce . In that case, the contractual relationship at issue was between unlicensed debt advisors and individuals (facing serious financial difficulties) seeking debt restructuring.

The lower court judge in that case certified the class action and refused to stay the claims in accordance with the class action waiver contained in the standard form contract. [ 88 ] On appeal, the Court noted that the proposed class members were in vulnerable circumstances, while the appellants were unable to point to any commercial reason for the class action waiver except to possibly impede their customers’ right to access justice.

The Court stated ( ibid at paras 232-33): The appellants submit that it would be an undue burden on the franchisees, and contrary to their contractual expectations, to be subject to a class action because these types of proceedings are lengthy and expensive and they will face a larger scale of potential liability. Yet they devote no submissions to the burden on them if they were to be sued in 8,200 separate lawsuits.

Surely if individual actions were a realistic option for customers of the appellants to pursue, that would be far more complex and burdensome for the appellants to manage and would pose a threat to the appellants in terms of potential liability equal to that of a class proceeding.

The true expectation of the appellants, and reason for their wish to enforce the class action prohibition is obvious: the appellants expect that, if enforced, the clause will protect them from being sued at all . [emphasis in original] [ 89 ] The Court in that case concluded that, similar to Uber SCC, “[w]hile on paper it might appear that a pathway to dispute resolution exists, the practical effect of the clause so narrowly defines that pathway as to effectively and practically block access to justice and as such it is unconscionable” ( Pearce at para 245 ). [ 90 ] In this action, the disputes likely to arise under the 2018 Agreement would be for relatively small amounts.

Although the arbitration provisions state that Skip will pay the reasonable arbitration costs, the plaintiff would still need to pay for the legal representation necessary to successfully advance claims through arbitration—costs that are beyond her financial means and are grossly disproportionate considering the monetary value of her claims. Forcing this action out of the Court and into private arbitration would likely deny the plaintiff and prospective class members access to any dispute resolution.

CONCLUSION [ 91 ] There is a tension between the overarching policy of the Act to encourage arbitration and the unconscionability doctrine developed in cases like Uber SCC, which seeks to protect more vulnerable contracting parties and collective recourse through vehicles such as class actions. [7] [ 92 ] While freedom of contract is of central importance to Canadian commercial and legal systems, the common law has never treated it as absolute.

As a matter of public policy, courts will not enforce contractual terms that, expressly or by their effect, deny access to legally determined independent dispute resolution (see Uber SCC at paras 101, 105, 110-15). Although courts have recognized that arbitration can be an acceptable alternative to litigation where it provides for just dispute resolution according to law, this is not the case where the practical effect of the arbitration clause would be to preclude resolution altogether.

In Uber SCC, the Supreme Court stated: “When arbitration is realistically unattainable, it amounts to no dispute resolution mechanism at all” (at para 97). [ 93 ] The motion judge erred in his analysis of the applicable contract. He erred in finding the plaintiff did not accept the terms of the 2018 Agreement. It is not relevant that the statement of claim was filed a day before the 2018 Agreement took effect, except insofar as it shows that the plaintiff was well aware of the legal import of the impending changes (with assistance from counsel). I find that the 2018 Agreement applies here due to

article 11 of the 2014 Agreement, the notice provided of the proposed amendments, the fact that the plaintiff clicked “I Agree” on the Skip platform and the plaintiff’s continued use of the Skip platform after the amendments came into force.

[ 94 ] However, the motion judge went further in his reasons for decision and denied the stay based on section 7(2) (

b) of the Act . He held that there was an arbitration agreement, but it was invalid because the plaintiff had shown, on a balance of probabilities, that the 2018 Agreement was unconscionable. Given that decision, section 7(6) operates to prohibit an appeal to this Court. [ 95 ] For the above reasons, this appeal is quashed with costs. JA I agree: JA I agree: JA APPENDIX Excerpts from the 2018 Agreement (Articles 17-18 and 20-22): 17 If there is any dispute or controversy between

(1) You or any of Your Personnel and (2) the Company or any related entity, including any dispute or controversy arising out of or relating to this Agreement, any Services, any interactions or transactions between

(1) You or any of Your Personnel and (2) the Company or any related entity, or in respect of any legal relationship associated with or derived from this Agreement, including this Agreement’s negotiation, validity, existence, breach, termination, construction or application, or the rights, duties or obligations of any party to this Agreement (each, a “Dispute”), any party will serve any notice on the other party and each party must use good faith efforts to resolve the Dispute informally. 18 If the Dispute is not resolved after twenty (20) business days of a party serving notice on the other party that there is a Dispute, the parties agree that the Dispute will be finally resolved by confidential arbitration before a single arbitrator in accordance with the Arbitration Rules of the ADR Institute of Canada, Inc.

The parties agree that the arbitration will be conducted by the parties on an ad hoc basis and will not be administered by the ADR Institute of Canada, Inc. 20 If you are a resident of a province other than Quebec, the seat of the arbitration will be Ontario or such other location as agreed to by the parties acting reasonably. The language of the arbitration will be English. 21 The Company will pay the reasonable arbitration costs. There will be no appeals from any question of fact or law, or any other issue. 22 The parties will resolve any Dispute on an individual basis.

Any claim you may have must be brought individually, in Your individual capacity and not as a representative plaintiff or class member, and you will not join such claim with claims of any other person or entity, or bring, join or participate in a class action lawsuit, collective or representative proceeding of any kind (existing or future) against the Company or any related entity. [6] See JUST EAT Takeaway.com, Annual Report 2020 (Amsterdam: JUST EAT Takeaway.com, 2021), online (pdf): <s3.eu-central- 1.amazonaws.com/takeaway-corporatewebsite-dev/just-eat-takeawaycom-annual-report-2020.pdf>. [7] See James Plotkin, “Arbitration’s Primacy?

The Law Pertaining to Staying Court Proceedings in Favour of Arbitration” (39th Annual Civil Litigation Conference, 2019), online: <canlii.org/en/commentary/doc/2019CanLIIDocs4077>; David T Neave & Jennifer M Spencer, “Class Proceedings: The New Way to Trump Mandatory Arbitration Clauses?” (2005) 63:4 Advocate 495; and Jean R Sternlight, “As Mandatory Binding Arbitration Meets the Class Action, Will the Class Action Survive?” (2000) 42:1 Wm & Mary L Rev 1.