Unconscionable Inaccess to Justice

Abstract

Unconscionability can and should be used in appropriate cases to ensure access to justice for contracting parties in Canada. In this comment, I articulate a test for the application of unconscionability to what I call access clauses — clauses such as arbitration clauses and forum selection clauses that affect how a contracting party can access an adjudicative process. This test follows, and rationalises, recent judicial attempts to apply unconscionability to access clauses in the cases of Douez v Facebook and Heller v Uber. Previous attempts to make sense of — or criticise — these applications of unconscionability, have been limited in attempting to discipline the doctrine to the logic of contract law. But unconscionability is equitable: it relieves parties from contractual obligations despite every requirement of contract law being met. Cases applying unconscionability to ensure access to justice, which access clauses sometimes deny, reflect a new kind of inequity from which courts will relieve, rather than a new error of contractual logic. That inequity is an inaccess to justice.

Keywords: contract law, boilerplate, consumer protection, unconscionability, choice of forum, arbitration

JEL Classification: K12