The over-worn saying “The bigger they are, the harder they fall” has particular resonance in employment law. Even large companies with armies of lawyers often find that their contracts don’t withstand the scrutiny of the courts. Individual employees are often apprehensive about suing, given the employer’s expensive legal team that might be assembled. That’s misplaced, as the situation is often otherwise. Two recent Ontario cases illustrate just that.
The arbitration clause superficially appeared to be an insuperable obstacle to Heller’s class action. A motions judge sided with Uber, ruling that the agreement required Heller to pursue his claim in a Dutch arbitration. The Court also held that, independent of its first finding, the clause was unconscionable. Even a minor dispute over a few hundred dollars would need to be taken to arbitration in the Netherlands, entailing an up-front cost of US$14,500 merely to access the arbitration process — not including the costs of travel, accommodation or legal counsel. Such a bargain was grossly unfair, especially as Uber workers often earn a scant $300-$400 per week.
In another decision where concerns of unconscionability abounded, the Superior Court allowed Joe Swampillai to sue his former employer and its benefits administrator for long-term disability benefits — even though he had ostensibly signed away this right when his employment ended.
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