As when a gang uses high pressure door-to-door sales tactics to push its protection racket—the resulting agreements are likely to be both inequitable and against public policy. The case was argued on unconscionability grounds probably for pragmatic reasons: unconscionability is relatively developed in Canadian law and commentary. Arguing for a public policy ensuring access to courts would have seemed riskier, particularly in the face of legislative support for arbitration. Academic support for such a public policy approach might have forestalled the extension of unconscionability. Justice Brown had almost no scholarship to cite in support of his public policy position, while the majority sees its unconscionability arguments reflected in work by most of the leading Canadian contract scholars.

Jack Enman-Beech

SJD Candidate, University of Toronto Faculty of Law