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Supreme Court Of Canada Finds Uber’s Mandatory Arbitration Clause Invalid And Paves Way For Gig Economy Class Action – Litigation, Mediation & Arbitration

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In Uber Technologies Inc. v.
Heller
(Uber), 2020 SCC 16, the
Supreme Court of Canada held that the mandatory arbitration clause
in Uber’s service agreement that prescribed arbitration take
place in the Netherlands and required drivers to pay US$14,500 up
front in administrative fees is unconscionable and therefore
invalid.

Summary

  • The Court ruled that Uber’s
    arbitration clause imposed insurmountable procedural barriers that
    rendered the driver’s contractual rights
    “illusory”.

  • In so holding, the Court made it
    clear that Canadian courts may depart from the general rule of
    arbitral referral where accessibility to arbitration is
    realistically unattainable.

  • In setting out a two-part test for
    unconscionability, the Uber decision serves as a warning
    to employers and companies that use standard-form contracts to take
    care in drafting dispute resolution clauses so as not to impose
    procedural barriers or burdens that effectively prevent parties
    from accessing arbitration.

Background

In 2017, an UberEATS driver (the “Plaintiff”)
commenced a proposed class action against Uber in Ontario. He
claimed that Uber drivers are employees under Ontario’s
Employment Standards Act, 2000 (“ESA”) and
entitled to ESA benefits. Uber brought a motion to stay the
proposed class proceeding because the Plaintiff had agreed to
Uber’s standard-form services agreement. That agreement
contained an arbitration clause that required all disputes to be
resolved through arbitration in the Netherlands, not a court (the
“Arbitration Clause”). Arbitration required that the
Plaintiff pay administrative fees of US$14,500, plus legal fees and
other costs of participation, an amount that represented most of
his annual income. The Plaintiff argued that the Arbitration Clause
is invalid because it is unconscionable and because it contracts
out of the mandatory provisions of the ESA.

Decision of the motion judge

The motion judge granted Uber’s motion for a stay in favour
of arbitration. The motion judge concluded that the ESA does not
restrict arbitration and that the arbitration agreement’s
validity had to be referred to arbitration in the Netherlands, in
accordance with the principle that arbitrators are competent to
determine their own jurisdiction. The motion judge rejected the
argument that the Arbitration Clause is unconscionable as there was
no evidence that Uber had preyed upon or taken advantage of the
driver.

Decision of the Court of Appeal for
Ontario

The Court of Appeal allowed the driver’s appeal and set
aside the motion judge’s stay. It agreed with him that Ontario
courts should decide whether the Arbitration Clause is valid. The
Court of Appeal determined, among other things, that the
Arbitration Clause amounted to an illegal contracting out of the
ESA and was unconscionable based on the inequality of bargaining
power between the parties and the improvidence of the costly
arbitration process.

Supreme Court of Canada Decision

In an 8-1 ruling, the Supreme Court of Canada dismissed
Uber’s appeal. It agreed with the Court of Appeal that courts
should decide if the Arbitration Clause was valid and found that
the Arbitration Clause is unconscionable, and therefore invalid,
with the consequence that the proposed class action may proceed to
court.

The Arbitration Act, 1991 governs the dispute

As a preliminary matter, the Court considered whether the
parties’ dispute was governed by the International
Commercial Arbitration Act, 2017
(ICAA) or
Ontario’s Arbitration Act, 1991. Writing for the
majority of the Court, Abella and Rowe JJ. held that in making such
a determination, it is necessary to focus on the nature of the
parties’ dispute rather than on their relationship. As the case
at hand concerned an employment dispute, which is not covered by
the ICAA, the Court held that the Arbitration
Act,1991
governs.

Who should determine the validity of the Arbitration
Clause?

The Court then addressed the issue of whether the court or
arbitrator/arbitral tribunal should decide the validity of the
Arbitration Clause. Drawing on its decisions in Dell Computer
Corp. v. Union des consommateurs
(2007) and Seidel v.
TELUS Communications Inc
(2011), the majority of the Court
reaffirmed that courts should refer all challenges to an
arbitrator’s jurisdiction to the arbitrator, unless they raise
pure questions of law, or of mixed fact and law that require only
superficial consideration of the evidence in the record and where
the court is convinced that the challenge is not a delay tactic or
will not prejudice the recourse to arbitration.

However, the Court created a new basis for departing from the
general rule of arbitral referral, where: (i) there is a bona
fide
challenge to an arbitrator’s jurisdiction; and (ii)
there is a real prospect that doing so would result in the
challenge never being resolved by the arbitrator.

Based on the record before it, the Court found that the
Plaintiff had made a bona fide challenge to the validity
of the Arbitration Clause, and that, given the significant
arbitration costs involved, there was a real prospect that if a
stay were granted the Plaintiff’s challenge would never be
brought before an arbitrator for resolution.

Unconscionability: a two-part test

The majority of the Court held that there are two elements
required for the doctrine of unconscionability to apply:

  1. Inequality of bargaining power
    between the parties; and

  2. A resulting improvident bargain that
    unduly advantages the stronger party or unduly disadvantages the
    more vulnerable.

In doing so, the majority rejected Uber’s argument that
unconscionability should consist of a more stringent four-part test
that would also require that the victim lack independent legal
advice and that the stronger party knowingly took advantage of the
weaker. The majority held that including these additional factors
would only distract from the unfair bargain inquiry. In the
majority’s view, the requirements of inequality and
improvidence, if properly applied, are sufficient to
strike the proper balance between fairness and commercial
certainty
.”

The majority found there was inequality of bargaining power
between Uber and the Plaintiff given (i) the significant
sophistication gap between the parties, and (ii) the finding that
the Plaintiff could not be expected to appreciate the financial and
legal implications of the Arbitration Clause.

According to the majority, the resulting bargain was improvident
because arbitration would entail administrative fees that were very
substantial for someone with the Plaintiff’s annual income and
which were also disproportionate to the size of any arbitration
award that could reasonably have been foreseen when the contract
was entered into. Effectively, the Arbitration Clause made the
substantive rights that were nominally given by the services
agreement essentially unenforceable by the Plaintiff.

In a concurring opinion, Brown J. agreed with the majority that
the appeal should be dismissed, and that the Arbitration Clause is
invalid, but, among other things, took issue with the
majority’s reliance on the doctrine of unconscionability to
reach its conclusion. According to Brown J., the application of the
unconscionability doctrine to the facts of this case is both
unnecessary and undesirable for two reasons:

  • The law already contains settled
    legal principles outside the doctrine of unconscionability, such as
    the rule of law and public policy, which courts can use to avoid
    enforcing contractual terms that, expressly or by their effect,
    deny access to independent dispute resolution; and

  • It would drastically expand the
    doctrine’s reach without providing any meaningful guidance as
    to its application, and only compound the uncertainty that plagues
    the doctrine and introduce uncertainty into the enforcement of
    contracts generally.

Côté J., the lone dissenter, found that a stay of
proceedings should be granted on the condition that Uber advances
the funds needed to initiate the arbitration proceedings. She found
that both the majority and Brown J. disregarded the concepts of
freedom of contract, party autonomy, and commercial certainty.

Implications of the Uber Decision

As a result of the Uber decision, companies that use
standard form contracts will want to be cautious in drafting
arbitration clauses to ensure that they are enforceable. Where
there is an imbalance of power between the parties, consideration
should be given to fairness and accessibility issues. For instance,
companies will want to pay attention to whether a clause mandates
dispute resolution in a particular jurisdiction and the arbitration
fees involved and consider how onerous the clause is, to ensure
that parties to the contract are not being effectively excluded
from arbitration.

The concurring reasons of Brown J. forecast the potential
commercial uncertainty that may arise as a result of the
majority’s endorsement of a two-part test for unconscionability
that eliminates the requirement that the strong party have
knowledge over the weaker party’s vulnerability. It is
foreseeable that there will be more challenges to the
enforceability of executed standard form agreements on the basis of
unconscionability.

In terms of next steps, the Supreme Court of Canada’s
decision paves the road for this gig economy class action to move
forward in Ontario’s courts, where ultimately some
determination will be made as to the classification of Uber drivers
as independent contractors or employees.

Originally published July 3, 2020.

The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.

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Gig Economy Market 2020 Segmented by Major Market Players, Types, Applications and Countries Forecast to 2026 – My Kids Health

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Information & Technology -Credible Markets

The recent report on “Global Gig Economy Market Report 2020 by Key Players, Types, Applications, Countries, Market Size, Forecast to 2026” offered by Credible Markets, comprises of a comprehensive investigation into the geographical landscape, industry size along with the revenue estimation of the business. Additionally, the report also highlights the challenges impeding market growth and expansion strategies employed by leading companies in the “Gig Economy Market”.

Impact of Covid-19 in Gig Economy Market: Since the COVID-19 virus outbreak in December 2019, the disease has spread to almost every country around the globe with the World Health Organization declaring it a public health emergency. The global impacts of the coronavirus disease 2019 (COVID-19) are already starting to be felt, and will significantly affect the Gig Economy market in 2020. The outbreak of COVID-19 has brought effects on many aspects, like flight cancellations; travel bans and quarantines; restaurants closed; all indoor/outdoor events restricted; over forty countries state of emergency declared; massive slowing of the supply chain; stock market volatility; falling business confidence, growing panic among the population, and uncertainty about future.

Download FREE Sample Copy of Gig Economy Report @ https://www.crediblemarkets.com/sample-request/gig-economy-market-968602

Key players in the global Gig Economy market covered in Chapter 4:

Prosper
Lime
Etsy
BlaBlaCar
VaShare
Envato Studio
Fon
BHU Technology
Didi Global
Snap
Freelancer.com
Zipcar
Uber
Toptal
Stashbee
Eatwith
Lyft
Couchsurfing
PeoplePerHour
Spotahome
Care.como
E-stronger
Silvernest
Upwork
Fiverr
Steam
Hubble
Home Away
Omni
Airbnb
JustPark
Airtasker

In Chapter 11 and 13.3, on the basis of types, the Gig Economy market from 2015 to 2026 is primarily split into:

Asset-Sharing Services
Transportation-Based Services
Professional Services
Household & Miscellaneous Services (HGHM)
Others

In Chapter 12 and 13.4, on the basis of applications, the Gig Economy market from 2015 to 2026 covers:

Traffic
Electronic
Accommodation
Food and Beverage
Tourism
Education
Others

Geographically, the detailed analysis of consumption, revenue, market share and growth rate, historic and forecast (2015-2026) of the following regions are covered in Chapter 5, 6, 7, 8, 9, 10, 13:

United States, Canada, Germany, UK, France, Italy, Spain, Russia, Netherlands, Turkey, Switzerland, Sweden, Poland, Belgium, China, Japan, South Korea, Australia, India, Taiwan, Indonesia, Thailand, Philippines, Malaysia, Brazil, Mexico, Argentina, Columbia, Chile, Saudi Arabia, UAE, Egypt, Nigeria, South Africa and Rest of the World

Enquiry before Buying this Report @ https://www.crediblemarkets.com/enquire-request/gig-economy-market-968602 

Some Points from Table of Content

Global Gig Economy Market Report 2020 by Key Players, Types, Applications, Countries, Market Size, Forecast to 2026 

Chapter 1 Report Overview

Chapter 2 Global Market Growth Trends

Chapter 3 Value Chain of Gig Economy Market

Chapter 4 Players Profiles

Chapter 5 Global Gig Economy Market Analysis by Regions

Chapter 6 North America Gig Economy Market Analysis by Countries

Chapter 7 Europe Gig Economy Market Analysis by Countries

Chapter 8 Asia-Pacific Gig Economy Market Analysis by Countries

Chapter 9 Middle East and Africa Gig Economy Market Analysis by Countries

Chapter 10 South America Gig Economy Market Analysis by Countries

Chapter 11 Global Gig Economy Market Segment by Types

Chapter 12 Global Gig Economy Market Segment by Applications

Chapter 13 Gig Economy Market Forecast by Regions (2020-2026)

Chapter 14 Appendix

The research provides answers to the following key questions:

    What is the expected growth rate of the Gig Economy market? What will be the market size for the forecast period, 2020 – 2026?

    What are the major driving forces responsible for transforming the trajectory of the industry?

    Who are major vendors dominating the Gig Economy industry across different regions? What are their winning strategies to stay ahead in the competition?

    What are the market trends business owners can rely upon in the coming years?

    What are the threats and challenges expected to restrict the progress of the industry across different countries?

    What are the key opportunities that business owners can bank on for the forecast period, 2020 – 2026?

Grab Maximum Discount on Gig Economy Market Research Report @ https://www.crediblemarkets.com/discount-request/gig-economy-market-968602 

About Credible Markets

Credible Markets has emerged as a dependable source for the market research needs of businesses within a quick time span. We have collaborated with leading publishers of market intelligence and the coverage of our reports reserve spans all the key industry verticals and thousands of micro markets. The massive repository allows our clients to pick from recently published reports from a range of publishers that also provide extensive regional and country-wise analysis. Moreover, pre-booked research reports are among our top offerings.

Contact Us

Credible Markets Analytics

99 Wall Street 2124 New York, NY 10005

US Contact No: +1(929)-450-2887

Email: [email protected]

Ask for customization @ https://www.crediblemarkets.com/custom-research

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Weekend Extra: Artist Qubek tells Metro how he’s livening up closed gig venues

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AS CORONAVIRUS closed music venues and independent creative businesses across the country, street artists painted their towns red, green, blue and pink, bringing colour to the shutters and raising a much-needed smile. A world away from the old image of outlaws daubing graffiti on buildings in the dead of night, this is commissioned art, bringing creativity to empty spaces with the full blessing of the site owners.

In Manchester, muralist Qubek was invited to remind passers-by of the good times they’ve enjoyed at live music hotspots by painting the closed shutters of the O2 Victoria Warehouse and O2 Ritz Manchester. As part of O2’s national This Is Just An Interval campaign, the venues’ exteriors have a new look while fans await the return of live music.

‘It was quite an emotional thing for me, really, remembering the great times I’ve had in those venues, particularly the Ritz, which was where I had my first big nights out,’ Qubek recalls. ‘I used to go there every Wednesday with my mates, so I’ve loved the opportunity from O2 to express myself on the venue.

Buzzing: Qubek and his symbolic ‘lonely microphone’ piece, below

‘At first, I wasn’t really sure how to sum that up, but as I got started I realised that, for me, it’s all about the people who make these venues what they are: the musicians and the people who work across the gig economy, and how hard it is for them at the moment.

‘The lonely microphone on the floor of an empty venue is symbolic of how people are feeling right now, not knowing when things are going to get better, but adding the text “this is just an interval” gives the piece a message of hope. That’s my idea behind it, anyway.’

As the artist behind Manchester’s famous bee murals, he is used to capturing the city’s creative, industrious spirit. His depiction of 22 bees which adorns the Northern Quarter’s Koffee Pot commemorate the lives lost in 2017’s Manchester Arena attack, and act as a moving reminder of the city’s spirit and creativity.

‘I’ve painted bees for years, little Manchester worker bees, I’ve always loved them as signifying the hardworking people of the city,’ explains Qubek. ‘But it was after the arena attack and the tragedy there that they became particularly poignant for a lot of people, and I was asked to do more of them.

‘It was an opportunity to try to help at a time where we all felt pretty hopeless — and I think if you have an opportunity to put something back, you should always try to take it. The ones I’ve painted so far have been auctioned for about £90,000 for charity.’ Qubek, who lives in Old Trafford with his partner and young family, is also keen to put as much as he can back into the wider community.

‘Other than commissions, I do a lot of work running workshops for young people and helping them channel their creativity with public art,’ he explains.

‘There’s an idea that we are all running around at night spray-painting train carriages, and while there are people who do, and I did start out being a bit naughty where I sprayed, the vast majority of us are working on positive artwork, designed to inspire the community.

‘I see so many talented kids coming through, and it’s really hard for them these days to find an outlet for that creativity. There is a great community on Instagram, too. Every day, I look at the murals and street art being done around the world and it takes your breath away. We’re part of an amazing global movement.

‘That was the thing for me about the dropped mic and us all waiting for live music to return. The creative community is huge, and whether that’s as artists, musicians, writers or any of the other industries in the gig economy, we are all part of a wider community supporting each other.’

Instagram @qubekmanchester



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COVID-19 Impact on Gig Economy Market 2020- future development, manufacturers, trends, share, size and forecast details shared in the report – Owned

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Let’s begin with, why research is important for Gig Economy Market? It is always important because it gives direction to deal with a specific problem. Report Ocean has recently published a market research report on the Gig Economy Market which will provide you a leading direction of Gig Economy Market. This research report keenly focusses on development status and recent trends of the Gig Economy Market, along with competitive landscape, supply chain, market dynamics (opportunities, restraints, and drivers), government policies and opportunities.

The Gig Economy Market report provides a detailed analysis of the global market size, regional and country-level market size, segment growth, market share, competitive landscape, sales analysis, impact of domestic and global market players, value chain optimization, trade regulations, recent developments, opportunity analysis, strategic market growth analysis, product launches, and technological innovations.

COVID 19 Impact on Gig Economy Market

This research study also includes the analyses related to the impact of Covid-19 on the Gig Economy Market. The global impacts of the coronavirus disease 2019 (COVID-19) may significantly affect the growth of the Gig Economy Market in near future. As per the experts’ viewpoints, it affects the global economy in 3 major ways:

• By directly affecting demand and production chain

• By creating market disturbance and supply chain

• By impacting the firms financially and influencing the financial markets

Request Free Sample Report at https://www.reportocean.com/industry-verticals/sample-request?report_id=mai28960

Competitive Landscape:

Key players in the global Gig Economy market covered in Chapter 4:
Prosper
Lime
Etsy
BlaBlaCar
VaShare
Envato Studio
Fon
BHU Technology
Didi Global
Snap
Freelancer.com
Zipcar
Uber

In this chapter will provide you a complete description of competitors and their relative position in Gig Economy Market. We will provide you the information about major players, their products, prices, market share, current strategies and main strengths and weaknesses. In this competitive world, it is indispensable to understand who the rivals are and how they usually perform with the purpose of improving its own market position. Direct and indirect competitors should be identified and analyzed. This valuable information will support decision makers when defining and evaluating company strategies.

Market Segmentation:

For a business to grow, you always need to look at the specific group of consumers. It also helps you to avoid the cost of advertising and distributing to a mass market. In this section, we mainly focused on subdivision of the Gig Economy Market into compatible subsections of customers where any subsection may be selected as a market target to be reached with a unique marketing mix

Geographically, the report includes the detailed research on market share, growth rate, consumption, production, revenue and forecast of the following regions:

• United States

• Central and South America (Brazil, Mexico, Colombia)

• Europe (Germany, UK, France, Italy, Spain, Russia, Poland)

• China

• Japan

• India

• Southeast Asia (Malaysia, Singapore, Philippines, Indonesia, Thailand, Vietnam)

• Middle East and Africa (Saudi Arabia, United Arab Emirates, Turkey, Egypt, South Africa, Nigeria)

Some of the Major Highlights of TOC covers:

Report Overview

• Study Scope

• Key Market Segments

• Regulatory Scenario by Region/Country

• Market Investment Scenario Strategic

Global Market Growth Trends

• Industry Trends

• SWOT Analysis

• Porter’s Five Forces Analysis

• Potential Market and Growth Potential Analysis

• Industry News and Policies by Regions

• Industry News

• Industry Policies

• Industry Trends Under COVID-19

Value Chain of Gig Economy Market

• Value Chain Status

• Gig Economy Market Manufacturing Cost Structure Analysis

• Production Process Analysis

• Manufacturing Cost Structure of Gig Economy Market

• Labor Cost of Gig Economy Market

• Labor Cost of Gig Economy Market Under COVID-19

• Sales and Marketing Model Analysis

• Downstream Major Customer Analysis (by Region)

• Value Chain Status Under COVID-19

Gig Economy Market Production, Revenue (Value), Price Trend by Type

• Production and Market Share by Type

• Revenue and Market Share by Type

• Price by Type

Gig Economy Market Production, Consumption, Export, Import by Region

Production, Consumption, Export, Import by Region

• Production, Consumption, Export, Import by Country

• Production, Revenue, Price and Gross Margin

Industrial Chain, Sourcing Strategy and Downstream Buyers

• Gig Economy Market Industrial Chain Analysis

• Raw Materials Sources of Gig Economy Market major Players in 2019

• Downstream Buyers

Gig Economy Market Forecast

• Gig Economy Market Sales, Revenue and Growth Rate

• Gig Economy Market Production, Consumption, Export and Import Forecast by Region

• Gig Economy Market Production, Revenue and Price Forecast by Type

• Gig Economy Market Consumption Forecast by Application

• Gig Economy Market Forecast Under COVID-19

Years considered for this report:

• Historical Years: 2015-2019

• Base Year: 2019

• Estimated Year: 2020

• Forecast Period: 2020-2026

For more information and discount on this report, ask your query at: https://www.reportocean.com/industry-verticals/sample-request?report_id=mai28960

Thanks for reading this article; you can also get individual chapter wise section or region wise report version like North America, Europe, and Asia.

Contact Us: +1 888 212 3539 (US) +91-9997112116 (Outside US)
Contact Person: Matthew S
Email: [email protected]

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