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

AuthorNatasha Rambaran
Pages315-338
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,
even if 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.
CCAR 14-2.indb 315 1/8/2019 10:57:39 AM
CCAR 14-2.indb 316 1/8/2019 10:57:39 AM

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