|
Consumer - Arbitration. Lin v. Uber Canada Inc.
In Lin v. Uber Canada Inc. (Fed CA, 2025) the Federal Court of Appeal dismissed a class proceeding appeal, here brought against a successful motion for stay of the civil action in favour of a contractual arbitration clause.
Here the court considers CPA provisions which prevent the contractual barring of Superior Court litigation in favour of arbitration CPA, 2002 s.7(2) ['Limitation on effect of term requiring arbitration'] and 8(1) ['Class proceedings'], noting that this action is brought in the federal court and that the action is grounded under the federal Competition Act (not the Ontario CPA):A. The Impact of Provincial Consumer Protection on Mr. Lin’s Action
[22] I agree with the parties that the impact of provincial consumer protection legislation on the enforceability of Uber’s arbitration clause is a question of law that is reviewable on the correctness standard: Housen v. Nikolaisen, 2002 SCC 33 at para. 8.
[23] Given that the contract between Mr. Lin and Uber identifies Ontario law as the law governing the contract, Mr. Lin’s submissions focused primarily on the impact of the Ontario Consumer Protection Act, 2002, S.O. 2002, c. 30, specifically subsections 7(2) and 8(1) thereof.
[24] Subsection 7(2) of the Consumer Protection Act provides that any term in a consumer contract that requires that disputes arising out of the agreement be submitted to arbitration "“is invalid insofar as it prevents a consumer from exercising a right to commence an action in the Superior Court of Justice given under this Act”".
[25] Mr. Lin observes that the text of Uber’s arbitration clause states that "“[u]nless prohibited by law”", all disputes under the Uber Terms and Conditions are to be referred to arbitration. He contends that the arbitration clause is prohibited by Ontario law, and that Uber is asking the Court to ignore the precondition set out in its own arbitration clause.
[26] The Federal Court rejected Mr. Lin’s argument, finding that the Ontario Consumer Protection Act did not apply to invalidate the arbitration clause in the Uber contract in this proceeding. This conclusion was unquestionably correct.
[27] Quite apart from the fact that provincial legislation cannot limit the jurisdiction of the Federal Court, subsection 7(2) of the Consumer Protection Act expressly states that an arbitration clause is invalid "“insofar as it prevents a consumer from exercising a right to commence an action in the Superior Court of Justice”" [my emphasis]. Mr. Lin’s proposed class proceeding was brought in the Federal Court. It is not an action in Ontario’s Superior Court of Justice, and subsection 7(2) thus has no application here.
[28] Moreover, subsection 7(2) of the Consumer Protection Act expressly deals with the enforcement of rights conferred by that legislation. Mr. Lin’s action is brought under the federal Competition Act and does not seek to enforce any rights that he may have under the Ontario consumer protection legislation.
[29] Similarly, subsection 8(1) of the Ontario Consumer Protection Act provides that a consumer "“may commence a proceeding on behalf of members of a class under the ""Class Proceedings Act, 1992""”". Consumers may also become a member of a class in such a proceeding in relation to a dispute arising from a consumer agreement "“despite any term or acknowledgment in the consumer agreement or a related agreement that purports to prevent or has the effect of preventing the consumer from commencing or becoming a member of a class proceeding”".
[30] Mr. Lin argues that the Federal Court failed to address this provision, even though he raised it in argument. That is simply not the case. The Federal Court directly addressed Mr. Lin’s argument at paragraph 66 of its reasons, finding that the reference to the "“""Class Proceedings Act"", ""1992""”" in subsection 8(1) of the Consumer Protection Act "“indicate[s] that the Ontario legislature only intended to protect access to Ontario courts”," and that it did not extend to address access to the Federal Court or the superior courts of other provinces.
[31] Insofar as the merits of Mr. Lin’s argument with respect to subsection 8(1) of the Ontario Consumer Protection Act are concerned, suffice it to say that the Federal Court’s finding that it had no application in this case was correct. This is not a proceeding under the Ontario Class Proceedings Act, 1992, S.O. 1992 c. 6, and Mr. Lin is not trying to start or join a class proceeding under that legislation. Subsection 8(1) of the Ontario Consumer Protection Act is thus irrelevant to this case. [SS italics]
[32] As the respondent observed, Mr. Lin could have avoided the arbitration clause in Uber’s contract by bringing his proposed class proceeding in the Ontario Superior Court of Justice under the Ontario Class Proceedings Act. Having chosen not to do so, he must live with the consequences.
|
