Access to Justice Versus Freedom of Contract: A Comparative Analysis of Canada and Us Enforcement of Mandatory Arbitration Agreements and Class Action Waivers

• Author: Natasha Rambaran
• Pages: 315-338

315

Access to Justice Versus Freedom of Contract:

A Comparative Analysis of Canada and US

Enforcement of Mandatory Arbitration Agreements

and Class Action Waivers

Natasha Rambaran

: Canadian and American courts and legislatures have adopted

dif‌ferent approaches to the enforceability of mandatory arbitration

clauses and class action waivers. Both jurisdictions face a fundamental

question: whether the benef‌its of including these provisions in contracts

of adhesion, such as commercial certainty and freedom of contract,

should supersede the right to access the civil justice system on an indi-

vidual or class-wide basis.

This paper will comparatively analyze the law in Canada and the

United States surrounding the enforceability of mandatory arbitration

clauses and class action waivers. The Canadian approach is inconsistent,

as each Canadian province has dif‌fering consumer protection legislation.

As a result, the Supreme Court of Canada has struggled to establish

national consensus. In contrast, the US Supreme Court has consistently

upheld the validity and ef‌fectiveness of pre-dispute resolution clauses,

evenif a plaintif‌f’s costs of individually arbitrating exceed their potential

recovery. Ultimately, the US Supreme Court maintains that freedom of

contract and party autonomy supersede consumer protections and the

right to commence civil proceedings.

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