Summary: Summary pending

Summary: (a) Illegal Dispossession Act (XI of 2005)-------Ss.3 & 4---Prevention of illegal dispossession of property---Cognizance of offence---Accused not belonging to qabza mafia---Dispute of civil nature---Scope---Accused wasalleged to have illegally dispossessed the complainant from his land and started cultivationthereon---Complainant had not alleged that the accused belonged to qabza Mafia or he was aland grabber---Contents of the complaint were silent to the effect that why the complainanthad kept mum for a period of four years after his illegal dispossession---Mode ofdispossession was also not mentioned in the complaint---Long standing possession ofaccused was enough to hold that the accused did not belong to the class of property grabbersor qabza group---No case under S.3 of Illegal Dispossession Act, 2005, was made out ratherit appeared that the matter between the parties pertained to a dispute of civil nature---Appealagainst conviction was accepted, in circumstances.Amroze Khan v. Motaser Khan and others 2013 MLD 1564 rel.(b) Illegal Dispossession Act (XI of 2005)-------Ss.3 & 4---Prevention of illegal dispossession of property---Cognizance of offence---Scope---Main object and purpose of promulgation of the Illegal Dispossession Act, 2005, isto curb the activities of the property grabbers---Illegal Dispossession Act, 2005, applies onlyto dispossession from immovable properties by property grabbers/land mafia---IllegalDispossession Act, 2005, does not apply to the cases of dispossession by ordinary personswho cannot, by any stretch of imagination, be termed as land grabbers/land mafia/qabzagroup---Such disputes include disputes over possession of immovable properties between coowners or co-shares, between landlord and tenants, between persons claiming possession onthe basis of inheritance, between persons claiming to be the owners of the land on the basisof title documents in their favour or cases with a background of an ongoing private disputeover the relevant property.

Summary: (a) Contract- -Adhesion contract-Unnegotiated standard form contract-Arbitration clause, validity of-Unconscionability, doctrine of-Inequality of bargaining power between parties-Improvident bargain-Standard form service agreement between a driver (employee) and a multinational ride-hailing company ('the company')-Clause in said agreement required that disputes be submitted to arbitration in the Netherlands and imposed substantial administrative and filing costs for arbitration proceedings-Driver commenced proceedings in Ontario court in Canada against the company for violation of employment standards legislation-Company sought stay of proceedings based on arbitration clause-Questions as to whether proceedings in Ontario court should be stayed; whether validity of arbitration agreement should be decided by the court or arbitrator, and whether arbitration agreement unconscionable-[Per Abella and Rowe, JJ (Majority view): Due to the extensive fees for initiating arbitration, there was a real prospect that if the matter was sent to be heard by an arbitrator, the driver's challenge to the validity of the arbitration agreement may never be resolved-Validity of the arbitration agreement must therefore be resolved by the court-Driver's claim that the arbitration clause was unconscionable required considering two elements: whether there was an inequality of bargaining power and whether there was a resulting improvident bargain-In the present case, there was inequality of bargaining power between the company and driver because the arbitration clause was part of an unnegotiated standard form contract, there was a significant gap in sophistication between the parties, and a person in the driver's position could not be expected to appreciate the financial and legal implications of the arbitration clause-Arbitration clause was improvident because the arbitration process required US$ 14,500 in up-front administrative fees-Resultantly, the arbitration clause was unconscionable and therefore invalid]-[Per Brown, J (concurring but with his own reasons): Arbitration clause, in the present case, was invalid, not due to the doctrine of unconscionability but because of being contrary to public policy as it denied access to justice-Arbitration agreement effectively barred any claim that the driver might have against the company and was disproportionate in the context of the parties' relationship-Such form of limitation on legally determined dispute resolution undermined the rule of law and was contrary to public policy]-[Per CÃté, J dissenting (Minority view): Validity of the arbitration clause, in the present case, should be determined by an arbitral tribunal under the rule of systematic referral-Arbitration clause was not unconscionable as it did not result in a improvident bargain-Evidence did not support a finding that the company had constructive knowledge of the driver's alleged peculiar vulnerability-Arbitration clause was also not invalid under public policy as the Arbitration Act, 1991 (of Canada) and the International Commercial Arbitration Act, 2017 (of Canada) were strong statements of public policy which favoured enforcing arbitration agreements-Even if the arbitration clause was held to be unconscionable or contrary to public policy, the selection of the International Chamber of Commerce Rules and the place of arbitration clause could be severed from the agreement under the doctrine of severance-In the light of the evidence that the driver could not afford the upfront fees, the company should be required to advance the filing fees to enable him to initiate arbitration proceedings-Arbitration clause in the present case should be upheld and the parties referred to arbitration]-Appeal was dismissed. Per Abella and Rowe, JJ (Majority view): The Court set out a framework in Dell Computer Corp. v. Union des consommateurs, [2007] 2 S.C.R. 801, and Seidel v. TELUS Communications Inc., [2011] 1 S.C.R. 531, for when a court should decide if an arbitrator had jurisdiction over a dispute instead of referring that question to the arbitrator. According to the framework, the general rule was that court should refer all challenges to an arbitrator's jurisdiction to the arbitrator unless they raised pure questions of law, or questions of mixed fact and law that required only superficial consideration of the evidence in the record - that is, if the necessary legal conclusions could be drawn from facts that were either evident on the face of the record or undisputed by the parties. Court may depart from the general rule of arbitral referral if an issue of accessibility arose. Furthermore, a court should not refer a challenge to an arbitrator's jurisdiction to the arbitrator if there was a real prospect that doing so would result in the challenge never being resolved. To determine whether only a court could resolve the challenge to arbitral jurisdiction, the court must first determine whether, assuming the facts pleaded to be true, there was a genuine challenge to arbitral jurisdiction. Second, the court must determine from the supporting evidence whether there was a real prospect that, if the stay was granted, the challenge may never be resolved by the arbitrator. While the second question required some limited assessment of the evidence, this assessment must not devolve into a mini-trial. The only question at such stage was whether there was a real prospect, in the circumstances, that the arbitrator may never decide the merits of the jurisdictional challenge. If there was a real prospect that referring a challenge to an arbitrator's jurisdiction to the arbitrator would result in the challenge never being resolved, a court may resolve whether the arbitrator had jurisdiction over the dispute and, in so doing, may thoroughly analyze the issues and record. The Supreme Court (of Canada), therefore, should resolve the arguments raised by the driver in the present case. Dell Computer Corp. v. Union des consommateurs, [2007] 2 S.C.R. 801 and Seidel v. TELUS Communications Inc., [2011] 1 S.C.R. 531 ref. Driver's claim that the arbitration clause was unconscionable required considering two elements: whether there was an inequality of bargaining power and whether there was a resulting improvident bargain. Applying the unconscionability doctrine to the present case, there was clearly inequality of bargaining power between the company and the driver. The arbitration agreement was part of a standard form contract. The driver was powerless to negotiate any of its terms. His only contractual option was to accept or reject it. There was a significant gulf in sophistication between the driver, a food deliveryman, and the company, a large multinational corporation. The arbitration agreement, moreover, contained no information about the costs of mediation and arbitration in the Netherlands. A person in the driver's position could not be expected to appreciate the financial and legal implications of agreeing to arbitrate under foreign law or international mediation rules. Even assuming that the driver was the rare person who would have read through the contract in its entirety before signing it, he would have had no reason to suspect that behind an innocuous reference to mandatory mediation "under the International Chamber of Commerce Mediation Rules"that could be followed by"arbitration under the Rules of Arbitration of the International Chamber of Commerce", there laid a US$ 14,500 hurdle to relief. Exacerbating this situation was that these Rules were not attached to the contract, and so the driver would have had to search them out himself. The improvidence of the arbitration clause was also clear. The mediation and arbitration processes required US$ 14,500 in up-front administrative fees. This amount was close to the driver's annual income and did not include the potential costs of travel, accommodation, legal representation or lost wages. The costs were disproportionate to the size of an arbitration award that could reasonably have been foreseen when the contract was entered into. The arbitration agreement also designated the law of the Netherlands as the governing law and Amsterdam as the"place"of the arbitration. This gave the driver the clear impression that he had little choice but to travel at his own expense to the Netherlands to individually pursue claims against the company through mandatory mediation and arbitration in the company's home jurisdiction. Any representations to the arbitrator, including about the location of the hearing, could only be made after the fees had been paid. Respect for arbitration was based on its being a cost-effective and efficient method of resolving disputes. When arbitration was realistically unattainable, it amounted to no dispute resolution mechanism at all. In the present case, the arbitration clause was the only way the driver was permitted to vindicate his rights under the contract, but arbitration was out of reach for him and other drivers in his position. His contractual rights were, as a result, illusory. Based on both the financial and logistic disadvantages faced by the driver in his ability to protect his bargaining interests and on the unfair terms that resulted, the arbitration clause in the present case was unconscionable and therefore invalid. Per Brown, J, concurring but with his own reasons: Mandatory arbitration clause in the present case was invalid, not due to the doctrine of unconscionability but because of being contrary to public policy as it denied access to justice. Contractual stipulations that foreclosed access to legally determined dispute resolution, such as the arbitration agreement in thepresent case did, were unenforceable not because they were unconscionable, but because they undermined the rule of law by denying access to justice. They were therefore contrary to public policy. The majority view in the present case, vastly expanded the scope of the doctrine of unconscionability's application. This was unnecessary, because the law already contained settled legal principles outside the doctrine of unconscionability which operated to prevent contracting parties from insulating their disputes from independent adjudication. It was also undesirable, because it drastically expands the doctrine's reach without providing any meaningful guidance as to its application. Charting such a course would serve only to compound the uncertainty that already plagued the doctrine, and to introduce uncertainty to the enforcement of contracts generally. In the present case, the arbitration agreement between the company and the driver was disproportionate in the context of the parties' relationship. The driver was the only one who would experience undue hardship in attempting to advance a claim against the company, regardless of the claim's legal merit. Such form of limitation on legally determined dispute resolution undermined the rule of law and was therefore contrary to public policy. The arbitration agreement between the company and the driver was, thus, invalid. Per CÃté, J dissenting (Minority view): One of the most important liberties prized by a free people was the liberty to bind oneself by consensual agreement. Party autonomy and freedom of contract informed the policy choices embodied in the Arbitration Act, 1991 (of Canada) ['the Arbitration Act"] and the International Commercial Arbitration Act, 2017 (of Canada) ["the International Act"], one of which was that the parties to a valid arbitration agreement should abide by their agreement. The parties to the agreement, in the present case, had bound themselves to settle any disputes arising under it through arbitration. The Arbitration Act, the International Act, the jurisprudence of the Supreme Court (of Canada) and compelling considerations of public policy required the Court to respect the parties' commitment to submit disputes to arbitration. Hofer v. Hofer, [1970] S.C.R. 958, at p. 963 and TELUS Communications Inc. v. Wellman, 2019 SCC 19, [2019] 2 S.C.R. 144, at para. 52 ref. The validity of the arbitration clause, in the present case, should be determined by an arbitral tribunal. There was a general rule that in any case involving an arbitration clause, a challenge to the arbitrator's jurisdiction must be resolved first by the arbitrator. This was the rule of systematic referral. A court may depart from the rule of systematic referral only if the jurisdictional challenge was based solely on a question of law or a question of mixed law and fact that required only a superficial review of the documentary evidence, was not a delaying tactic, and would not unduly impair the conduct of the arbitration proceeding. A review was not superficial if the court was required to review testimonial evidence. Arguments on behalf of the driver challenging the validity of the arbitration clause required more than a superficial review of the documentary evidence. Driver's arguments were dependent upon testimonial evidence regarding his financial position, his personal characteristics, the circumstances of the formation of the contract and the amount that would likely be at issue in a dispute to which the arbitration clause applied. The rule of systematic referral applied in the present case, and the parties should be referred to arbitration. Dell Computer Corp. v. Union des consommateurs, [2007] 2 S.C.R. 801 ref. Driver's claim that the bargain was improvident rested on three propositions: first, that the place of arbitration clause required him to travel to Amsterdam at his own expense; second, that the choice of law clause excluded the application of the Employment Standards Act, 2000 ("ESA"); and third, that the selection of the International Chamber of Commerce Rules ("ICC Rules") entailed the payment of fees which he alleged were disproportionately high. As to the place of arbitration clause, the place of arbitration was a legal concept which denoted the parties' selection of a particular jurisdiction whose arbitration law governed proceedings, and under whose law the arbitral award was made. There was no obligation to actually conduct the arbitration at the place of arbitration. As to the choice of law clause, arguments directed at the alleged unfairness of having the service agreement governed by foreign law were analytically distinct from those concerning alleged unfairness arising from the arbitration clause itself. The separability doctrine holds that arbitration clauses embedded in contracts should be treated as independent agreements that were ancillary or collateral to the underlying contract. The result was that the alleged invalidity of the choice of law clause on the basis that it was unconscionable did not affect the validity of the arbitration clause. As to the selection of the ICC Rules, arbitration agreements involved a mutuality of exchange, so mandatory fees which applied to disputes initiated by either party would make pursuing a claim for a small amount just as uneconomic for the company as for the driver. Therefore, if unfairness resulted from the imposition of the fees on hypothetical claims for small amounts, the unfairness was mutual. In any event, the actual amount of driver's claim was unknown, and establishing that a dispute over a small amount was likely would require the production and review of testimonial evidence. The proportionality of the fees to the driver's ability to finance a larger claim must be measured as of the time the contract was formed, and the Court had no evidence regarding his financial position at that time. The evidence did not support a finding that the company had constructive knowledge of the driver's alleged peculiar vulnerability. It would have been impossible for the company to be aware of the driver's specific income and education level when he decided to become a driver on the company's platform, or that he intended to use the platform as his primary source of income. In any event, such questions would require the production and review of testimonial evidence, which would lead the Court to stray impermissibly beyond the documentary record. The arbitration clause was also not invalid under public policy. The Court should not create a new common law rule that contractual provisions which had the effect of prohibiting access to dispute resolution were contrary to public policy. The Arbitration Act and the International Act were strong statements of public policy which favoured enforcing arbitration agreements. Tercon Contractors Ltd. v. British Columbia (Transportation and Highways), 2010 SCC 4, [2010] 1 S.C.R. 69, at para. 123 ref. The pro-arbitration stance taken by legislatures (across Canada) and by the Supreme Court (of Canada) supported a generous approach to remedial options which would facilitate the arbitration process. Two such options included ordering a conditional stay of proceedings and applying the doctrine of severance. Although it would usually be unnecessary for a court to order a conditional stay, it may be appropriate to do so to ensure procedural fairness in the arbitration process. Courts should be careful not to impose conditions which impinge on the decision-making jurisdiction of the arbitral tribunal, but a condition which facilitated the arbitration process could protect the tribunal's jurisdiction by ensuring that the parties were able to proceed with the arbitration. In addition, compelling policy considerations supported a generous application of the doctrine of severance in cases in which the parties had clearly indicated an intent to settle any disputes through arbitration but in which some aspects of their arbitration agreement had been found to be unenforceable. In deciding whether to apply the doctrine of severance, a court should also consider whether it would be both commercially practical and consistent with the parties' intentions for it to enforce the remainder of the arbitration agreement. Where the parties' intention to submit disputes to arbitration was clearly established, applying the doctrine of severance would usually be consistent with their intentions. In the present case, even if the arbitration clause was unconscionable or contrary to public policy, the selection of the ICC Rules and the place of arbitration clause could be severed. In light of the evidence that the driver could not afford the upfront fees, the company should be required to advance the filing fees to enable him to initiate arbitration proceedings. The arbitration clause in the present case should be upheld. (b) Contract- -Unconscionability, doctrine of-Inequality of bargaining power between parties-Improvident bargain-Scope and purpose of doctrine of unconscionability and its implications for standard form contracts, stated. Unconscionability was an equitable doctrine that was used to set aside unfair agreements that resulted from an inequality of bargaining power. When the traditional assumptions underlying contract enforcement lost their justificatory authority, said doctrine provided relief from improvident contracts. The purpose of unconscionability was the protection of those who were vulnerable in the contracting process from loss or improvidence in the bargain that was made. John D. McCamus, The Law of Contracts (2nd ed. 2012), at p. 424); Mitchell McInnes, The Canadian Law of Unjust Enrichment and Restitution (2014), at p. 521; see also pp. 520-24; Bradley E. Crawford,"Restitution - Unconscionable Transaction - Undue Advantage Taken of Inequality Between Parties"(1966), 44 Can. Bar Rev. 142, at p. 143); S.M. Waddams,"Good Faith, Unconscionability and Reasonable Expectations"(1995), 9 J.C.L. 55, at p. 60; Hodgkinson v. Simms, [1994] 3 S.C.R. 377, at pp. 405 and 412; Hunter Engineering Co. v. Syncrude Canada Ltd., [1989] 1 S.C.R. 426, at p. 462, per Dickson C.J., and p. 516, per Wilson J.; Norberg v. Wynrib, [1992] 2 S.C.R. 226, at p. 247; see also Bhasin v. Hrynew, [2014] 3 S.C.R. 494, at para. 43; Mindy Chen-Wishart, Unconscionable Bargains (1989), at p. 109; see also James Gordley,"Equality in Exchange"(1981), 69 Cal. L. Rev. 1587, at pp. 1629-34; Birch, at para. 44 ref. Unconscionability required both an"inequality of bargaining power"and a resulting"improvident bargain". An inequality of bargaining power existed when one party could not adequately protect its own interests in the contracting process. One common example of inequality of bargaining power came in the"necessity"cases, where the weaker party was so dependent on the stronger that serious consequences would flow from not agreeing to a contract. This imbalance could impair the weaker party's ability to contract freely and autonomously. When the weaker party would accept almost any terms, because the consequences of failing to agree were so dire, equity intervened to prevent a contracting party from gaining too great an advantage from the weaker party's unfortunate situation. The second common example of an inequality of bargaining power was where, as a practical matter, only one party could understand and appreciate the full import of the contractual terms, creating a type of"cognitive asymmetry". This may occur because of personal vulnerability or because of disadvantages specific to the contracting process, such as the presence of dense or difficult to understand terms in the parties' agreement. In these cases, the law's assumption about self-interested bargaining lost much of its force. Unequal bargaining power could be established in such scenarios even if the legal requirements of contract formation had otherwise been met. Regardless of the type of impairment involved, what matters was the presence of a bargaining context where the law's normal assumptions about free bargaining either no longer held substantially true or were incapable of being fairly applied. Douez v. Facebook Inc., [2017] 1 S.C.R. 751; McCamus, at pp. 426-27 and 429; Crawford, at p. 143; Chen-Wishart (1989), at p. 31; Morrison, at p. 713; Gustafson, at para. 45; Hess v. Thomas Estate, 2019 SKCA 26, 433 D.L.R (4th) 60, at para. 77; Blomley v. Ryan (1956), 99 C.L.R. 362 (H.C.A.), at p. 392; Commercial Bank of Australia, at pp. 462-63, and 477-78; Bartle v. GE Custodians, [2010] NZCA 174, [2010] 3 N.Z.L.R. 601, at para. 166; Stephen A. Smith, Contract Theory (2004), at pp. 343-44; John R. Peden; The Law of Unjust Contracts: Including the Contracts Review Act 1980 (NSW) With Detailed Annotations Procedure and Pleadings (1982), at p. 36; Andrew Burrows, A Restatement of the English Law of Contract (2016), at p. 210; Downer, at para. 54; McInnes, at p. 525; Janet Boustany v. George Pigott Co (Antigua and Barbuda), [1993] UKPC 17, at p.6 (BAILII), quoting Alec Lobb (Garages) Ltd. v. Total Oil (Great Britain) Ltd., [1985] 1 W.L.R. 173, at p. 183 and Lloyds Bank Ltd. v. Bundy, [1975] 1 Q.B. 326 (C.A.), at pp. 336-37 ref. Second element of unconscionability was an"improvident bargain". A bargain was improvident if it unduly advantaged the stronger party or unduly disadvantaged the more vulnerable. Improvidence was measured at the time the contract was formed and must be assessed contextually. The question was whether the potential for undue advantage or disadvantage created by the inequality of bargaining power had been realized. An undue advantage may only be evident when the terms were read in light of the surrounding circumstances at the time of contract formation, such as market price, the commercial setting or the positions of the parties. For a person who was in desperate circumstances, for example, almost any agreement would be an improvement over the status quo. In these circumstances, the emphasis in assessing improvidence should be on whether the stronger party had been unduly enriched. This could occur where the price of goods or services departed significantly from the usual market price. Where the weaker party did not understand or appreciate the meaning and significance of important contractual terms, the focus was on whether they had been unduly disadvantaged by the terms they did not understand or appreciate. These terms were unfair when, given the context, they flouted the"reasonable expectation"of the weaker party or caused an"unfair surprise". This was an objective standard, albeit one that had regard to the context. Because improvidence could take so many forms, such exercise could not be reduced to an exact science. John-Paul F. Bogden,"On the 'Agreement Most Foul': A Reconsideration of the Doctrine of Unconscionability"(1997), 25 Man. L.J. 187, at p. 202 and American Law Institute and National Conference of Commissioners on Uniform State Laws, Proposed Amendments to Uniform Commercial Code Article 2 - Sales: With Prefatory Note and Proposed Comments (2002), at p. 40 ref. Although one party knowingly taking advantage of another's vulnerability may provide strong evidence of inequality of bargaining power, it was not essential for a finding of unconscionability. Unconscionability did not require that the transaction was grossly unfair, that the imbalance of bargaining power was overwhelming, or that the stronger party intended to take advantage of a vulnerable party. The doctrine of unconscionability had particular implications for standard form contracts. The potential for such contracts to create an inequality of bargaining power was clear, as was the potential to enhance the advantage of the stronger party at the expense of the more vulnerable one, particularly through choice of law, forum selection, and arbitration clauses that violated a party's reasonable expectations by depriving them of remedies. Applying the unconscionability doctrine to standard form contracts also encouraged those drafting such contracts to make them more accessible to the other party or to ensure that they were not so lop-sided as to be improvident, or both. Margaret Jane Radin,"Access to Justice and Abuses of Contract"(2016), 33 Windsor Y.B. Access Just. 177, at p. 179; Stephen Waddams,"Review Essay: The Problem of Standard Form Contracts: A Retreat to Formalism"(2013), 53 Can. Bus. L.J. 475, at pp. 475-476; Thal, at pp. 27-28 and William J. Woodward, Jr.,"Finding the Contract in Contracts for Law, Forum and Arbitration"(2006), 2 Hastings Bus. L.J. 1, at p. 46 ref. Per Brown, J: (Concurring Judge giving independent view not dealt with by the majority view) (c) Contract- -Arbitration clause-Clause limiting access to a legally determined dispute resolution-Validity-Public policy, doctrine of-Scope-Grounds and factors to be considered by a court to determine whether a limitation on dispute resolution imposed by a clause or arbitration clause in an agreement caused undue hardship, and thus was invalid for public policy reasons. The public policy doctrine was fundamental to (Canadian) contract law and provided grounds for setting aside specific types of contractual provisions including those that harmed the integrity of the justice system. This head of public policy applied when a provision penalized or prohibited one party from enforcing the terms of their agreement, which served to uphold the rule of law. At a minimum, the rule of law guaranteed citizens and residents a stable, predictable and ordered society in which to conduct their affairs. Such a guarantee was meaningless without access to an independent judiciary that could vindicate legal rights. While public policy did not require access to a court of law in all circumstances, any means of dispute resolution that served as a final resort for contracting parties must be just. Arbitration was an acceptable alternative to civil litigation because it could provide a resolution according to law, but where a clause expressly provided for arbitration while simultaneously having the effect of precluding it, the considerations which promoted curial respect for arbitration dissolved. This was where the public policy principle preventing an ouster of court jurisdiction operated. Reference re Secession of Quebec, [1998] 2 S.C.R. 217, at para. 70; Jonsson v. Lymer, 2020 ABCA 167, at para. 10 (CanLII)); Sport Maska Inc. v. Zittrer, [1988] 1 S.C.R. 564, at p. 581 and Trial Lawyers Association of British Columbia v. British Columbia (Attorney General), 2014 SCC 59, [2014] 3 S.C.R. 31, at para. 43 ref. Applying public policy to determine whether an arbitration agreement prohibited access to justice was neither stating a new common law rule nor an expansion of the grounds for judicial intervention in arbitration proceedings. Common law courts had long recognized the right to resolve disputes according to law. The law had simply evolved to embrace arbitration as means of achieving that resolution. Contractual stipulations that prohibited such resolution altogether, whether by express prohibition or simply by effect, continued to be unenforceable as a matter of public policy. In evaluating a clause that limited access to a legally determined dispute resolution, the court's task was to decide whether the limitation was reasonable as between the parties, or instead caused undue hardship. A court must show due respect for arbitration agreements, particularly in the commercial setting. It would be the rare arbitration agreement that imposed undue hardship and acted as an effective bar to adjudication. Public policy should not be used as a device to set aside arbitration agreements that were proportionate in the context of the parties' relationship and the possibility for timely resolution but that one party simply regretted in hindsight. To decide whether a limitation on dispute resolution imposed undue hardship, the first factor to consider was the nature of disputes that were likely to arise under the parties' agreement. Where the cost to pursue a claim was disproportionate to the quantum of likely disputes arising from the agreement, this suggested the possibility of undue hardship. Courts should also consider the relative bargaining positions of the parties. However, an imbalance in bargaining power was not required to find that a provision barred access to dispute resolution. An outright prohibition on dispute resolution would undermine the rule of law, even in the context of an agreement between sophisticated parties. That said, the hardship occasioned by a limit on legally determined dispute resolution was less likely to be"undue"if it was the product of negotiations between parties of equal bargaining strength. What was reasonable between the parties must be considered in light of the parties' relationship. Finally, it may be relevant to consider whether the parties had attempted to tailor the limit on dispute resolution. Arbitration agreements may, for example, be tailored to exclude certain claims or to require the party with a stronger bargaining position to pay a higher portion of the upfront costs. Per CÃté, J. (Minority view): (d) Contract- -Unconscionability, doctrine of-Pre-requisites-Unconscionability doctrine applied where there was a significant inequality of bargaining power stemming from a weakness or vulnerability; a resulting improvident bargain; and where the stronger party knew of the weaker party's vulnerability-Key question in relation to the significant inequality of bargaining power was whether the weaker party had a degree of vulnerability that had the potential to materially affect their ability, through autonomous, rational decision making, to protect their own interests, thereby undermining the premise of freedom of contract-Personal characteristics or attributes of the weaker party were a fundamental consideration in such regard. [Minority view] Downer v. Pitcher, 2017 NLCA 13, 409 D.L.R. (4th) 542, at paras. 37 and Input Capital Corp. v. Gustafson, 2019 SKCA 78, 438 D.L.R. (4th) 387, at para. 39 ref. (e) Contract- -Standard form contracts-Inequality of bargaining power-Unconscionability, doctrine of-Scope-Argument that vulnerability in the contracting process may arise from provisions in standard form contracts which were dense or difficult to read or understand-Such argument set the threshold so low as to be both practically meaningless and open to abuse-Such sweeping restriction on arbitration clauses in standard form contracts would be best left to the legislature, especially since the vital and growing concept of"sharing economy", which depended on standard form contracts that were agreed to electronically, could be stifled if a reduced threshold for inequality of bargaining power was adopted. [Minority view] (f) Contract- -Severance, doctrine of-'Notional severance' and 'blue-pencil severance'-Scope and distinction-Doctrine of severance took two forms; 'notiona

Summary: Summary pending

Summary: (a) Contract Act (IX of 1872)- -Ss. 73 & 74-Loss and compensation-Proof-Even if a claimant is unable to prove actual loss / damage under S.73 of Contract Act, 1872, that by itself is not enough to oust compensation under S.74 of Contract Act, 1872. Sibte Raza v. Habib Bank PLD 1971 SC 743; Stockloser v. Johnson (1954) 1 AER 630 and Trustees of the Port of the Karachi v. Ghulamali Habib Rawjee PLD 1961 Kar. 623 rel. (b) Arbitration Act (X of 1940)- -Ss. 14(2), 30 & 33-Contract Act (IX of 1872), Ss. 73 & 74-Objection to award of contract-Loss and compensation, determination of-Performance guarantee-Encashment-Plaintiff company was awarded contract for supply of sugar and for the purpose it submitted performance guarantee to the Trading Corporation of Pakistan-Failure to supply sugar in due course of time-Corporation cancelled the contract and forfeited performance guarantee-Arbitrator rejected the claim of loss suffered by Corporation but awarded compensation to the extent of half of the performance guarantee-Validity-For the purposes of determining reasonable compensation under S.74 of Contract Act, 1872, assessment by Court, whether the party relying on forfeiture clause had suffered loss or not was the only one of the ways to see whether forfeiture was unconscionable or highly penal in nature-Ultimate analysis remained one of unconscionability and the extent of penalty-As to what was unconscionability and what was reasonable compensation, that was a question of fact and the Court or arbitrator had to determine in peculiar facts and circumstances of each case-For what could be seemed reasonable to the Court in one set of circumstances could not be seemed reasonable in another-Compensation could follow under S. 74 of Contract Act, 1872, even if no loss was proved-Even finding of breach of contract was not sufficient to entitle Trade Corporation of Pakistan to forfeit the entire amount-Objections to the award filed by both the parties were dismissed-Award was made rule of the Court. Province of West Pakistan v. Mistri Patel & Co. PLD 1969 SC 80; Sibte Raza v. Habib Bank PLD 1971 SC 743; Space Telecom (Pvt.) Ltd. v. Pakistan Telecommunication Authority 2019 SCMR 101; Khanzada Muhammad Abdul Haq Khan Khattak v. WAPDA 1991 SCMR 1436 and Ghulam Abbas v. Trustees of the Port of Karachi PLD 1987 SC 393 rel. Dates of hearing: 11th, 25th February and 17th March, 2020.

Summary: (a) Penal Code (XLV of 1860)- -S. 302(b)-Qatl-i-amd-Reappraisal of evidence-Occurrence took place at 0:800 a.m. and it was reported to the police on the same day at 10:15 p.m.-Delay of two hours and fifteen minutes in reporting the crime to the police was not material keeping in view the peculiar circumstances of the case such as the gender of the complainant, who was a female, and 11 miles distance between the place of occurrence and the police station-Record did not show any deliberate or conscious delay in reporting the matter to the police-Ocular account was furnished by widow (complainant) and brother in law of the deceased-Occurrence took place in front of the house of the complainant and place of occurrence was never disputed by the defence-Presence of the complainant at the time and place of occurrence could not be doubted by any stretch of imagination-Ocular account was fully supported by the medical evidence-Prosecution had successfully brought home guilt against the accused beyond any reasonable doubt-Petition for leave to appeal was dismissed and leave was refused. (b) Penal Code (XLV of 1860)- -S. 302(b)- Qatl-i-amd-Reappraisal of evidence-Sentence, reduction in-Death sentence reduced to imprisonment for life-Mitigating circumstances-Circumstances which rightfully persuaded the High Court to alter the sentence of death of accused to imprisonment for life were that the recovery of 12 bore double barrel gun was not believable; that motive behind the occurrence could not be proved; and that single fire shot on the person of deceased was attributed to the accused-Alteration of the sentence of death to imprisonment for life by the High Court was fully justified in such circumstances-Petition for leave to appeal was dismissed and leave was refused. Muhammad Amjad Rafiq, Additional P.G. for the State.

Summary: Penal Code (XLV of 1860)- Jaffar, Additional Prosecutor General for the State.

Summary: (a) Constitution of Pakistan- -Art. 199-Constitutional jurisdiction of High Court-Judicial restraint-Scope-Exercising judicial restraint in matters which fall within the exclusive domain of the Executive and for which the latter is answerable to the people of Pakistan is inherent in the scheme of the Constitution-Judges are not representatives of the people nor accountable for those functions that fall within the exclusive domain of the Executive branch of the State-In such matters intervention is only justified if an aggrieved petitioner can demonstrably show violation of Constitutionally guaranteed rights-Interests of the public at large do not prevail over individual rights or interests-Executive is answerable to the people for performance of its duties and functions assigned under the scheme of the Constitution-Executive should be free from unnecessary interference and intrusions warranting exercise of judicial restraint. Dosani Travels Pvt. Ltd. and others v. Messrs Travels Shop (Pvt.) Ltd. and others PLD 2014 SC 1; Syed Yousaf Raza Gillani, Prime Minister of Pakistan v. Assistant Registrar, Supreme Court of Pakistan and another PLD 2012 SC 466; Brig. (Retd.) Imtiaz Ahmad v. Government of Pakistan through Secretary, Interior Division, Islamabad and 2 others 1994 SCMR 2142; Nottinghamshire C.C. v. Secretary of State (1986) (All) ER 199, 204; Messrs Elahi Cotton Mills Ltd. and others v. Federation of Pakistan through Secretary Ministry of Finance, Islamabad and 6 others PLD 1997 SC 582 and Messrs Power Construction Corporation of China Ltd. through Authorized Representative v. Pakistan Water and Power Development Authority through Chairman WAPDA and 2 others PLD 2017 SC 83 rel. (b) Constitution of Pakistan- -Art. 199-Constitutional petition-Judicial restraint, principle of-Applicability-Petrol crisis-Petitioner companies sought indulgence of High Court against the proceedings initiated by authorities to inquire into shortage of petrol in market, after its prices were reduced-Validity-In view of the nature of crisis and its public importance judicial restraint was exercised-Intervention of High Court in any manner could impede or interfere with the functions, duties and obligations of executive authorities having consequences for the general public-High Court expected that the Executive authorities while conducting probe/inquiry would proceed strictly in accordance with law, in fair and transparent manner and would avoid causing unnecessary harassment to officials/employees of petitioner companies-High Court further expected that the authorities would regard principles of fair trial and would refrain from making statements that could prejudice rights of the petitioner companies-High Court also expected that petitioner companies would cooperate in the matter so that inquiry/probe could be concluded at the earliest-Petition was disposed of accordingly. Tariq Mehmood Khokhar, Additional Attorney General. Syed Muhammad Tayyab, Deputy Attorney General. Muhammad Shoaib for OGRA. Usman Arif Rai, Dy. Director M/O Petroleum. Imran Ali Abro, R.O. Petroleum Div.

Summary: Summary pending

Summary: Summary pending