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Supreme Court of Canada could open door to class-action lawsuit against Uber

Canada’s highest court will issue a ruling this morning in a case involving the ride-sharing service Uber that could have broad implications for the gig economy and labour rights in Canada.

The Supreme Court of Canada’s decision will determine whether a proposed $400 million class-action lawsuit launched by Ontario Uber drivers can move ahead.

Uber is challenging an Ontario Court of Appeal decision that found the company’s contract clause, which relies on a costly arbitration process in the Netherlands to settle disputes, was “unconscionable” and “unenforceable.”

The lower court ruling came after David Heller, a driver for UberEATS, attempted to launch a class-action lawsuit in 2017 to force the company to recognize its drivers as employees rather than independent contractors.

david heller
UberEATS driver David Heller triggered legal action against the ride-hailing company after he was asked to accept compensation changes on his phone in order to continue working for the company. (CBC)

Heller, who no longer works for Uber, started legal action after he received a message on his cell phone asking him to accept changes to the way he is compensated.

His lawyer, Lior Samfiru, said Heller agreed because he was out on a delivery in Toronto at the time — and wouldn’t have been paid if he had declined. 

“If the court agrees with Uber, then every company can have its workers sign a document that says the same thing,” Samfiru said.

“That would mean that companies can do whatever they want with impunity.”

Are individuals in the gig economy employees?

Uber won a stay of the proposed class action before Ontario Superior Court because of a clause in the contract that requires all disputes between drivers and the company to go through a mediation process in the Netherlands — at a personal cost of $14,500 US for drivers.

“Practically no one will do that,” Samfiru said.

lior samfiru
Toronto-based employment lawyer Lior Samfiru said the case involving Uber comes down to the company’s accountability. (Andy Hincenberg/CBC)

Heller, who had been licensed to use the Uber Driver App since February 2016 in Toronto, earned between $20,800 and $31,200 per year before taxes and expenses.

In November 2018, Ontario’s highest court ruled Uber’s clause amounts to illegally outsourcing an employment standard.

Uber’s maintains that arbitration, not the courts, is the right forum for deciding the validity of an arbitration agreement.

The proposed class-action lawsuit, which has not yet been certified, aims to provide a minimum wage, vacation pay and other protections under Ontario’s Employment Standards Act to anyone who works for Uber or has worked for the company in Ontario since 2012.

If the highest court rules in his favour, Samfiru said it would open up a discussion about whether people in the gig economy are employees.

“We cannot have a system where companies can do whatever they want, whenever they want, without any repercussions,” Samfiru said.

“The only way that we can even balance that inequality somehow is by giving individuals access to tribunals, like the labour relations board, or to our courts across the country.”

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