Unconscionability: David V. Uber, The Goliath

David Heller began delivering food in Toronto using the UberEATS platform in December 2016. Several months after signing a service agreement with Uber Technologies Inc. (Uber), Heller drove for Uber approximately 40–50 hours every week, generating earnings that ranged from CA$400 to $600 per week, or approximately CA$20,800–$31,200 per year. Uber drivers could not enjoy the rights and protections granted to employees under Ontario’s Employment Standards Act. If a dispute were to arise, Heller would have to pay approximately CA$19,000 to have his dispute with Uber resolved in the Netherlands. According to Uber, the dispute resolution process was to take place in the Netherlands even though Heller was living and working in Toronto. Was this fair? It could be argued that Heller had no bargaining power due to the financial and geographic constraints Uber had imposed. If Heller could convince Ontario’s court that Uber’s dispute regulation was unconscionable, this would change the nature of relationships between workers and companies in the Canadian gig economy.

This case is designed for use in an undergraduate- or graduate-level course that cover business law, business decisions and dilemmas, or new venture law. It explores the intersection between business law and corporate strategy by examining service agreements and testing them against Canadian employment laws. More specifically, this case details the issues related to contractual agreements, the relationships companies have with gig economy workers, and legal remedies such as the doctrine of unconscionability. As alternative dispute resolution (ADR) clauses are common in service agreements, students are encouraged to consider the legal remedies available to provide access to justice for workers, on the one hand, and protection to companies, on the other hand. Ultimately, in working on this case, students will evaluate, interpret, and analyze the doctrine of unconscionability as a viable legal remedy to Uber’s arbitration clause. After working through the case and assignment questions, students will be able to do following:<ul><li>Describe the types of ADR clauses and their advantages and disadvantages in a business context.</li><li>Consider the consequences of ADR clauses in service agreements.</li><li>Explain the applicability of the doctrine of unconscionability to business contracts.</li><li>Interpret contractual agreements under the Canadian common-law test.</li><li>Research relevant judicial decisions to arrive at an evidence-based legal conclusion.</li><li>Create an arbitration clause.</li></ul>

• business law
• employee
• rights
• service agreements
• arbitration
• contracts
• unconscionability
• Uber