The Dell decision/the Uber decision

- How Dell relates to Uber

Dell:

- Heart of the Dell art. 8 Model Law

- A provision of the civil procedure code, which replicated Model Law
- At the time this decision, QC did not make a distinction between local and international
arbitration (one act for both)
- QC’s position has changed where that changed and they have domestic and international
arbitration.
- 2 parties: Dell and consumer.
o The rule that we got from Dell, which dealt with a provision that effectively
- It is a rule from a domestic case but it applies that
- Art.8 the referral provision.
o (1) A court before which an action is brought in a matter which is the
subject of an arbitration agreement shall, if a party so requests not later than
when submitting his first statement on the substance of the dispute, refer
the parties to arbitration unless it finds that the agreement is null and void,
inoperative or incapable of being performed..
- Art 2 Para 3 of the NY Convention
o 3. The court of a Contracting State, when seized of an action in a matter in respect of
which the parties have made an agreement within the meaning of this article, shall, at
the request of one of the parties, refer the parties to arbitration, unless it finds that
the said agreement is null and void, inoperative or incapable of being performed.
 No time constraint
- Which one trumps the other? Art 8 or NY Convention?
o Scope of application of the Model Law: This Law applies to international commercial2
o arbitration, subject to any agreement in force between this State and any other State
or States.
o Drafters said that the Model Law is subject to the NY Convention
- In Dell, the consumer want to start a class action. He saw on Dell’s website
- Article 16. Competence of arbitral tribunal to rule on its jurisdiction: who goes first? Model Law
did not answer. Leave it to jurisdictions.
- Rule from Dell: (unique to Canada) depends on whether it is a question of law or question of
fact.
o If question of law, court goes first.
 We accept as true all the facts (prima facie) OR full review?
o If question of fact, leave to arbitrator
o If mix of question of law and fact, whether we need to go in depth in facts will
determine who goes first.
- Reminder: Competence-competence principle: the arbitrator is competent to decide their own
competence.
 - What is the Court suggesting when it says we will handle questions of law? They are implicitly
saying there is a hierarchy of competence where judges are better equipped that arbitrators to
deal with questions of law.
o Goes against the essence of arbitration. When someone appoints an arbitrator, they are
appointing someone who may not have a background in law to answer a question. They
cannot expect an answer that is legally sound.
- Why is Dell problematic internationally?
o That reasoning has been used in international cases.
o Art 2(a) of the ML
 Article 2 A. International origin and general principles (As adopted by the
Commission at its thirty-ninth session, in 2006) (1) In the interpretation of this
Law, regard is to be had to its international origin and to the need to promote
uniformity in its application and the observance of good faith. (2) Questions
concerning matters governed by this Law which are not expressly settled in it
are to be settled in conformity with the general principles on which this Law is
based.
 = need for uniformity
 Our court is using a case/rule that no one else is using.

Uber:

Is Heller an employee?

- ONCA: Doesn’t matter. Para 24

- SCC: did not resolve that question! para 19.
- Abella: Para 23. Model law doesn’t define it. Intl does not apply to intl dispute
o Response to Coté. It focuses on the natural relationship not the dispute.
 The model law determines scope of dispute based on the relationship between
the parties.
 If the relationship
- Existence of the arbitration agreement or not.
- We should be asking: what is the relationship between them.
- Brown’s approach is interesting: disagreement is an illusion. There is no agreement, because no
one in these circumstances will access arbitration. There is no consent.
- When you argue foreign law in Canadian courts, it is always a question of fact. Since Uber had
dutch law, Dell applies, foreign law. Abella acknowledged this but dismissed it because Uber’s
lawyers did not bring it up. Para 50.
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