23:2 (2021) Canadian Labour and Employment Law Journal 221-245
At issue in the Supreme Court of Canada's recent decision in Uber Technologies was the ability of platform operators to rely on mandatory arbitration clauses in their contracts with platform workers to avoid judicial enforcement of statutory employment rights -in this case, the Ontario Employment Standards Act. The Supreme Court agreed that the clause in question was unconscionable and therefore invalid, but declined to comment on whether it was, in addition, an illegal contracting-out of the Act's provisions. However, the Court's ruling does little to resolve the larger question of what legal space exists for mandatory arbitration clauses in employment contracts. This paper discusses why such clauses are, by and large, an exercise in futility, and cannot achieve their ostensible purpose of barring access to remedies for violations of statutory employment rights. The author builds on this argument to suggest that there is an underlying principle of public policy that precludes contracting-out of public enforcement mechanisms for protective employment laws in the absence of specific statutory authorization. Examples include the remedial regimes for workers' compensation and human rights claims. It follows that a prohibition against contracting-out of employment standards legislation simply instantiates the broader principle that private agreements cannot lawfully deny access to an administrative remedy to vindicate statutory employment rights. The author urges that what is already implicit in Canadian employment law be made explicit.
Tucker, Eric, "The Futility of Mandatory Arbitration Clauses in Canada: Putting the Last Nail in the Coffin" (2021). Articles & Book Chapters. 2933.
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