Ontario court certifies class action against Uber
Canadian Uber couriers' class-action lawsuit against the ride-hailing giant is going ahead, paving the way for a battle over whether the contractors should be treated as employees.
The proposed $400-million class action was certified by Ontario Superior Court of Justice judge Justin Paul Perell. The action arose from employment law firm Samfiru Tumarkin LLP's 2017 court filing on behalf of Uber Eats courier David Heller, who is one of the representative plaintiffs.
Heller and the law firm argued in their filing that Uber couriers meet the definition of employees under Ontario's Employment Standards Act, and should be entitled to minimum wage, vacation pay and other protections.
“The court is essentially acknowledging there is a case here, there is some basis in fact that Uber drivers have been misclassified as independent contractors when they're really employees,” said Samara Belitzky, an employment lawyer at Samfiru Tumarkin, in an interview. “We're one step closer to securing minimum protections and entitlements for these people. Things like minimum wage, overtime pay, holiday pay, access to benefits, workers' compensation — all of the things that employees in the entire province already have as a bare minimum right and protection.”
San Francisco-based Uber has long argued drivers and couriers are independent contractors rather than employees, because they have the freedom to use the app as often as they want and to work for other apps or companies.
In an email to the Financial Post, a spokesperson for Uber said the company would “review the ruling more closely in the coming days.”
“We remain focused on creating a better future for app-based workers that provides the flexibility and independence they want, with the benefits and protections they deserved.”
Pablo Godoy, national coordinator of gig and platform-employer initiatives at UFCW Canada, which applied to certify a union for Uber Black limo drivers 18 months ago, said the union was pleased with the decision. “We hope it gives way to bigger decision that could ... allow gig workers access to minimum standards,” he said.
Earlier this year, Uber Canada proposed provinces change their labour laws to force app-based companies to offer gig workers some safety protections and benefits, in a pitch it called Flexible Work+.
The company suggested its proposal would be a step up from the independent contractor model, by introducing benefits such as dental and vision care based on hours worked.
But gig workers, unions and employment law experts have called the proposal an effort to circumvent labour laws and deny rights to workers.
Jim Stanford, director of the Centre for Future Work, wrote in March that most of the changes Uber said were necessary to make gig work fairer “could be implemented by Uber tomorrow, all by itself. The company doesn't need to pressure government for any of this.”
Godoy said Uber should put more “meat on the bones” of its proposal, in terms of benefits with meaningful employer contributions and protection for drivers that goes beyond training. UFCW previously called Flexible Work+ “a cynical ploy to ignore labour rights.”
The certification comes after years of bouncing through the legal system. Uber got the case stayed in 2018 because of its requirement that all cases it is involved in go through mediation in the Netherlands, where its business was incorporated at the time. Uber since shifted its Canadian delivery and ride-hailing operations to being based in Canada.
In 2019, after the Ontario Court of Appeal reversed the stay, Uber appealed the decision to the Supreme Court of Canada, which ruled the case should be heard in Ontario and called Uber's arbitration clause “unconscionable.”