"Voluntary Association" is a fiction when contracting with major corporations
What recent Canadian Supreme Court cases tell us about "freedom of contract"
A tension exists between the right of private individuals to bind themselves to agreements as they see fit without government restriction and the public concern with stronger parties to a contract taking advantage of weaker parties. We may call this the tension between freedom of contract and protection of weaker parties.
This tension is particularly brought out in contracts between a layperson and a sophisticated commercial actor. It is also brought out in contracts between a worker and his employer, which was the case in Heller v Uber Technologies Inc 2020 SCC 16 [“Uber”]. An authority on the doctrine of unconscionability, Uber’s dissent and concurring opinion both contained concerns that the court’s intervention may compromise freedom of contract.
Recent consumer and employer cases call into question traditional conception of freedom of contract that exists within this tension. Rather than facilitating freedom by preventing a court’s interference in consumer or employer-employee contracts, rigid deference to “freedom of contract” as a principle disregards the unfreedom citizens experience from dominant market actors.
Second, while the Supreme Court of Canada has been right to offer relief to some consumers or workers like Heller, an employee of Uber, they are not able to change the nature of the relationship between stronger and weaker contracting parties in these circumstances. To do so would involve a radical restructuring of our economy that a court is not able to achieve. As such, despite the concern about eroding freedom of contract and party autonomy in popular Supreme Court decisions on unconscionability or deceitful business practices, these decisions have little bearing over what the freedom of the general populace will look like.