Pro­posed class ac­tion against Uber can pro­ceed, ap­peal court rules

Asian Journal - - WORLD -

Toronto: A pro­posed class-ac­tion law­suit against the ride-hail­ing com­pany Uber filed by one of its driv­ers will go ahead af­ter On­tario’s top court re­versed a lower court de­ci­sion that would have sent the mat­ter to ar­bi­tra­tion over­seas.

In a rul­ing re­leased Wed­nes­day, the Court of Ap­peal for On­tario says a clause in Uber’s ser­vices agree­ment that re­quires all dis­putes to go through ar­bi­tra­tion in the Nether­lands amounts to il­le­gally out­sourc­ing an em­ploy­ment stan­dard and there­fore can­not stand. It fur­ther con­cludes that the clause takes ad­van­tage of the sig­nif­i­cant power and fi­nan­cial dis­par­ity be­tween Uber and its driv­ers, who would bear up to US$14,500 in fil­ing fees just to be­gin the ar­bi­tra­tion process, no mat­ter the amount at stake in the dis­pute.

“I be­lieve that it can be safely con­cluded that Uber chose this ar­bi­tra­tion clause in or­der to favour it­self and thus take ad­van­tage of its driv­ers, who are clearly vul­ner­a­ble to the mar­ket strength of Uber,” the ap­peal court said. “It is a rea­son­able in­fer­ence that Uber did so know­ingly and in­ten­tion­ally.”

The law­suit, which claims Uber driv­ers are em­ploy­ees rather than con­trac­tors and thus sub­ject to On­tario’s labour leg­is­la­tion, had been stayed ear­lier this year by a mo­tion judge who found Uber driv­ers were bound by the ar­bi­tra­tion clause. The three-judge ap­peal panel says the mo­tion judge erred on sev­eral points, in­clud­ing in con­sid­er­ing the ar­bi­tra­tion clause like the kind seen in “nor­mal com­mer­cial con­tracts” where the par­ties are rel­a­tively equal in power and so­phis­ti­ca­tion. A spokesman for Uber Canada says the com­pany will be re­view­ing the ap­peal rul­ing.

The ap­peal court rul­ing does not deal with the claims made in the law­suit, which will be tested in civil court. Nor does it rule on whether the suit qual­i­fies as a class ac­tion.

The man be­hind the suit, David Heller, is a 35-year-old driver for Ubereats, a ser­vice that calls on driv­ers to de­liver food from res­tau­rants to Uber cus­tomers. He ar­gues that Uber driv­ers are em­ploy­ees, which makes them en­ti­tled to a min­i­mum wage, va­ca­tion pay and other pro­tec­tions un­der On­tario’s Em­ploy­ment Stan­dards Act.

The ap­peal court said the law pro­hibits em­ploy­ers from con­tract­ing out em­ploy­ment stan­dards.

It also found that a pro­vi­sion that al­lows work­ers to file com­plaints against an em­ployer with the Min­istry of Labour con­sti­tutes an em­ploy­ment stan­dard. And so, in re­quir­ing dis­putes to go to ar­bi­tra­tion, Uber’s ser­vices agree­ment is il­le­gally con­tract­ing out the em­ploy­ment stan­dard that es­tab­lishes a mech­a­nism to deal with com­plaints, and de­priv­ing Heller of the right to have the min­istry in­ves­ti­gate his com­plaint, the rul­ing said. “This is of some im­por­tance for, among other rea­sons, if a com­plaint is made then the Min­istry of Labour bears the bur­den of in­ves­ti­gat­ing the com­plaint. That bur­den does not fall on the ap­pel­lant. Un­der the ar­bi­tra­tion clause, of course, the ap­pel­lant would bear the en­tire bur­den of prov­ing his claim,” the de­ci­sion read.

The fact that Heller chose to file a law­suit rather than com­plain to the min­istry doesn’t change that find­ing, the ap­peal court said. The ar­bi­tra­tion clause is in­valid re­gard­less of his de­ci­sion, it said, and both a com­plaint to the min­istry and a pro­posed class-ac­tion would rule on the is­sue pub­licly and for all Uber driv­ers, un­like ar­bi­tra­tion, which would af­fect only him and do so pri­vately.

The court also found that the ar­bi­tra­tion clause “rep­re­sents a sub­stan­tially im­prov­i­dent or un­fair bar­gain” in that it dis­pro­por­tion­ately favours Uber in any dis­pute brought by its driv­ers.

“It re­quires an in­di­vid­ual with a small claim to in­cur the sig­nif­i­cant costs of ar­bi­trat­ing that claim ... the fees for which are out of all pro­por­tion to the amount that may be in­volved. And the in­di­vid­ual has to in­cur those costs up­front,” the court said. The ev­i­dence showed that start­ing ar­bi­tra­tion costs the ap­pli­cant roughly US$14,500, which does not in­clude the costs of travel, ac­com­mo­da­tion or coun­sel, the ap­peal panel said.

“These costs are to be con­trasted with the ap­pel­lant’s claim for min­i­mum wage, over­time, va­ca­tion pay and the like brought by a per­son earn­ing $400-$600 per week,” it said. “Ad­di­tion­ally, the ar­bi­tra­tion clause re­quires each claimant to in­di­vid­u­ally ar­bi­trate his/ her claim and to do so in Uber’s home ju­ris­dic­tion, which is oth­er­wise com­pletely un­con­nected to where the driv­ers live, and to where they per­form their du­ties. Still fur­ther, it re­quires the rights of the driv­ers to be de­ter­mined in ac­cor­dance with the laws of the Nether­lands, not the laws of On­tario, and the driv­ers are given no in­for­ma­tion as to what the laws of the Nether­lands are,” it said.

The court has or­dered Uber to pay Heller his costs for the ap­peal, a to­tal of $20,000.

By Paola Lorig­gio, The Cana­dian Press

Newspapers in English

Newspapers from Canada

© PressReader. All rights reserved.