Penalty Clauses Through the Lens of Unconscionability Doctrine: Birch v. Union of Taxation Employees, Local 70030

17 Pages Posted: 1 Jul 2010

See all articles by Kevin E. Davis

Kevin E. Davis

New York University School of Law

Date Written: April 15, 2009

Abstract

Canadian courts have shown an interest in abandoning the common law’s traditional rule against enforcing penalty clauses and instead analyzing those clauses through the lens of the doctrine of unconscionability. The Ontario Court of Appeal’s decision in Birch v. Union of Taxation Employees, Local 70030 adopts this approach. This short comment argues that in doing so the majority missed several opportunities to use unconscionability doctrine to examine features of the case that would have been ignored under the penalty doctrine.

Suggested Citation

Davis, Kevin E., Penalty Clauses Through the Lens of Unconscionability Doctrine: Birch v. Union of Taxation Employees, Local 70030 (April 15, 2009). NYU Law and Economics Research Paper No. 09-14; McGill Law Review, Vol. 55. Available at SSRN: https://ssrn.com/abstract=1384282 or http://dx.doi.org/10.2139/ssrn.1384282

Kevin E. Davis (Contact Author)

New York University School of Law ( email )

40 Washington Square South
Vanderbilt Hall, Room 335
New York, NY 10012-1099
United States
212-992-8843 (Phone)

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