B.C. Cracks Down on Class Action Waivers and Other Predatory Sales Practices
Behind every login screen is a rarely scrutinized but deeply consequential legal interaction: the clickwrap agreement. A clickwrap agreement is a digital contract where users signify their consent to terms and conditions by clicking a button or checking a box stating, “I agree”. These contracts, buried in lengthy Terms of Service (“ToS”), often contain mandatory arbitration clauses and class action waivers, stripping consumers of their right to seek legal remedies collectively. As evidenced by cases like AT&T Mobility LLC v. Concepcion, 2011, 563 U.S. 333 and Epic Systems Corp. v. Lewis 2018, 138 S. Ct. 1612, the United States has tended to uphold these terms under freedom to contract principles, but Canada has taken a markedly different approach.
In Uber Technologies Inc. v. Heller, 2020 SCC 16 (“Uber”), the Supreme Court of Canada considered the enforceability of an arbitration clause in Uber’s standard contract with its drivers. The clause required drivers to resolve disputes through mediation and arbitration in the Netherlands, at a cost beginning at US$14,500, far more than most claims would be worth. Ultimately, the SCC found this clause unconscionable and therefore, unenforceable. The majority’s reasoning for finding the arbitration clause unconscionable was based upon the inequality of bargaining power between the parties and the excessive cost of arbitration.
In Pearce v. 4 Pillars Consulting Group Inc., 2021 BCCA 198, the appellants brought an application seeking to enforce a class action waiver clause. The BC Court of Appeal, applying the decision in Uber, similarly concluded that the clause was unenforceable as it was unconscionable and contrary to public policy. This case confirmed that contractual terms that aim to limit a party’s access to class action proceedings are likely to be unenforceable, if not due to unconscionability, then as contrary to public policy.
In Petty v Niantic Inc., 2022 BCSC 1077, the court similarly relied on the decision in Uber when evaluating the enforceability of an arbitration and class action waiver clause in a contract for the popular video games Pokémon Go and Harry Potter: Wizards Unite. The contract term at issue indicated that by signing the contract, the customer agreed that any disputes between them would be resolved by “binding, individual arbitration” and that the customer would waive their right “to a trial by jury or to participate as a plaintiff or class member in any purported class action or representative proceeding”. The trial court found that this term was valid and enforceable, which was subsequently upheld by the BC Court of Appeal, relying on Justice Brown’s statement in Uber that “[i]t will be the rare arbitration agreement that imposes undue hardship and acts as an effective bar to adjudication.”
Collectively, these decisions indicate that the enforceability of class action waivers depends on the context of the transaction and the specific wording of the contract.
In response to growing concern over unfair business practices, British Columbia introduced Bill 4, the Business Practices and Consumer Protection Amendment Act, 2025 (“Bill 4”), proposing substantial amendments to the Business Practices and Consumer Protection Act (the “BPCPA”). Bill 4 was first introduced on February 25, 2025, and moved quickly through the legislative process, passing third reading on March 13, 2025, and receiving royal assent on March 31, 2025. While some of the provisions in Bill 4 have not taken effect yet, the provisions relating to class action waivers have. Specifically, section 14.3(1) of the BPCPA bars suppliers from including in a consumer contract any term that prevents the consumer from commencing or becoming a member of a class in a class proceeding relating to a matter arising out of the consumer contract. Additionally, section 14.3(2) of the BPCPA makes any such term void.
While these new amendments better protect British Columbians from unfair business practices in the increasingly complex marketplace of the digital age, common law rulings, such as Uber, remain the governing law in provinces and territories that have not yet implemented similar statutory regimes.
Written by Kaylee Cunningham, December 15, 2025.