Introduction
Courts continue to clarify which mandatory arbitration provisions are enforceable following Uber Technologies Inc. v. Heller[1]. Corporations rely on mandatory arbitration provisions, often twinned with collective action waivers, to prohibit claimants from bringing civil proceedings that seek collective redress. Scholars observe that this strategy of “private procedural ordering”[2] – in which parties impose private procedural rules for dispute resolution, displacing the role of public courts – harnesses freedom of contract to eliminate class actions and, consequently, certain types of claims.[3]
Over the past few years, Canadian courts have considered the circumstances in which proposed class proceedings should be stayed in favour of mandatory arbitration. The Court of Appeal’s recent decision in Lochan v. Binance Holdings Limited[4] reiterates that a central concern for courts is whether an arbitration provision genuinely offers an alternative dispute resolution process or practically extinguishes the ability of claimants to vindicate their rights.