Platitudinous or no, the 7-judge majority settles several open issues in Canadian unconscionability, at least provisionally. Unconscionability has two parts: an unfair bargain resulting from unfair bargaining. Lower courts had attempted to proliferate steps: requiring taking knowing advantage, or a lack of legal advice for example. Unconscionability can be directed at a contract as a whole or at any severable part of it, such as an arbitration clause taken alone. And, the court is sticking to the stance that unconscionability is to be assessed as at the time of the bargain, though I cannot see how this metaphysics is reflected in its judgment.

Jack Enman-Beech

SJD Candidate, University of Toronto Faculty of Law