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January 7, 2019

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PM #40762529 $5.00 • Vol. 30, No. 1 January 7, 2019 L AW TIMES C O V E R I N G O N T A R I O ' S L E G A L S C E N E • W W W . L A W T I M E S N E W S . C O M Court of Appeal invalidates Uber's arbitration clause Michael Wright says the Court of Appeal for Ontario concluded Uber 'overreached fairly dramatically' in the arbitration clause governing drivers' contracts. Photo: Laura Pedersen PROCEDURAL FAIRNESS Decision affirms rule of law applies to everyone P4 LEGAL TECH Discretion is important P7 FOCUS ON Insurance Law P8 BY ANITA BALAKRISHNAN Law Times T he Ontario Court of Ap- peal has ruled that an ar- bitration clause used by Uber in a delivery driver's contract is unenforceable. The clause, raised in the class action certification process, is both "unconscionable" and amounts to "illegal contracting out of an em- ployment standard," Justice Ian Nordheimer wrote, with Justices Kathryn Feldman and Gladys Pardu concurring in allowing the appeal. Michael Wright, managing partner at Cavalluzzo LLP in To- ronto, says the decision shows that if arbitration provisions are too onerous for one party, they may be set aside. "What the court concluded was that Uber overreached fairly dra- matically here," says Wright, one of the lawyers who represented appellant David Heller in the case, Heller v. Uber Technologies Inc., 2019 ONCA 1. The decision overturned that of the lower court and dealt a blow to the ride-hailing technol- ogy company, which now faces the prospect of a class action lawsuit in Ontario. Wright says it's not yet clear if Uber will seek leave to appeal this decision before the Supreme Court of Canada, now that the case has standing to go through the process to be certified as a class action suit. Heller started as a delivery driver for the UberEATS app in 2016, a process which involved a "driver services agreement" with Uber-affiliated company Rasier Operations BV, the decision said. A clause in the agreement stated it was "exclusively governed by and construed in accordance with the laws of The Netherlands," and said any dispute "shall be first manda- torily submitted to mediation pro- ceedings under the International Chamber of Commerce Media- tion Rules." After 60 days, the dispute would be resolved by arbitration where the "place of arbitration shall be Amsterdam, The Nether- lands," according to the agreement detailed in the decision. The decision said the evidence shows that "the cost of initiating the arbitration process alone is US$14,500. This does not include the costs of travel, accommodation and, most importantly, counsel to See Proposed, page 2 Sexual assault cases to come before SCC BY SHANNON KARI For Law Times T he Supreme Court of Canada is going to hear two cases this year about the threshold for a sexual assault defendant to meet for evi- dence about a complainant's sexu- al history to be admissible at trial. A defence appeal in R. v. Gold- fi nch is scheduled to be heard on Jan. 16 in an Alberta case where the defendant and the complainant had a past sexual relationship. e court also granted the Crown leave last month of the On- tario Court of Appeal's decision in R. v. R.V. where questions about the past sexual experiences of a 15-year-old girl allegedly sexually assaulted by her 20-year-old cous- in were ruled permissible. Both cases involve the applica- tion of s. 276 of the Criminal Code which was found to be constitu- tional by the Supreme Court in 2000 in R. v. Darrach. "Section 276(1) only prohibits the use of evidence of past sexual activity when it is off ered to sup- port two specifi c, illegitimate infer- ences. ese are known as the 'twin myths', namely that a complainant is more likely to have consented or that she is less worthy of belief 'by reason of the sexual nature of [the] activity' she once engaged in," the court said in Darrach. e Criminal Lawyers' Asso- ciation and the Ontario Ministry of the Attorney General are inter- veners at the Supreme Court in Goldfi nch. e defendant and complain- ant in that case had previously lived together and continued to engage in sexual activity on occa- sion a er their relationship ended. It was described to the trial court as "friends with benefi ts." e accused, Patrick Goldfi nch, allegedly hit the complainant and engaged in sexual relations without her consent, on an evening in 2014 when she visited his residence. Goldfi nch put forward the de- fence of consent or alternatively, See Guidance, page 2 Follow cLeishOrlando_LT_Oct29_18.indd 1 2018-10-25 7:52 AM Preferred Advertising Rates for Candidates Special print and online opportunities from January 14 through April 29 For more info, contact: 416-649-8841 SAVE MORE THAN 50% OFF regular rates for all print and web bookings Untitled-1 1 2018-12-20 3:40 PM Mike Kruse says guidance from the Supreme Court on relationship evidence would assist all parties.

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