In November Uber challenged an Ontario Court of Appeal decision that found the company’s policies around forced arbitration were “unconscionable” and “unenforceable,” in a June 26, 2020 story. (Photo by THE CANADIAN PRESS)

Supreme Court to release ruling in Uber case, which may pave way for class-action

Uber challenged Ontario Court of Appeal decision in November

The Supreme Court of Canada is set to release a decision Friday morning that could advance the fight to get Uber Technologies Inc. drivers recognized as employees in Canada.

The case stems from a $200-million class-action lawsuit Ontario Uber Eats driver David Heller tried to launch in 2017. Heller was hoping to force the San Francisco-based tech giant to recognize drivers as employees and provide them with a minimum wage, vacation pay and other protections under the Employment Standards Act.

Uber managed to have the proposed class action stayed because the company requires all disputes it is involved in go through mediation in the Netherlands.

Such a process would cost US$14,500, but Heller was only making between $400 and $600 a week for up to 50 hours of work. That amounted to $20,800 to $31,200 a year before taxes and expenses.

The matter headed to the Supreme Court in November after Uber challenged an Ontario Court of Appeal decision that found the company’s policies around forced arbitration were “unconscionable” and “unenforceable.”

If the Supreme Court rules in Heller’s favour, his class action suit would still have to be allowed by a lower court judge before the employment status of drivers can be challenged.

The Supreme Court decision is of keen interest to gig economy workers, who have long bemoaned the precariousness and lack of employment rights that comes with their jobs, said Iglika Ivanova, a senior economist and public interest researcher at the Canadian Centre for Policy Alternatives.

The companies often specialize in on-demand services such as ride-hailing and food delivery, and they argue that the flexibility they offer negates the need to offer protections to workers.

All eyes are on the Heller case because it may spur other challenges, Ivanova said.

“An increasing number of people are working in gig economy type positions and it is becoming also increasingly obvious that they lack some very basic protection, but globally nobody has figured out exactly what to do about it and everyone is looking for precedents,” she said.

“This is going to be looked at as an example, and used as a precedent by government workers elsewhere.”

The Supreme Court decision comes after the Ontario Labour Relations Board ruled in February that couriers for the Foodora app are dependent contractors because they more closely resemble employees than independent contractors.

In May, Berlin-based Delivery Hero SE shut down the app in Canada, saying “we’ve been unable to get to a position which would allow us to continue to operate without having to continually absorb losses.”

Then, in early June, the United Food and Commercial Workers Union appeared at the Ontario Labour Relations Board to represent Uber Black limousine and SUV drivers working in and out of Toronto Pearson International Airport and downtown Toronto.

The UFCW applied for unionization in January on behalf of 300 of those workers and said it met the threshold of support needed to gain certification as the official bargaining agent of the drivers, but Uber disagreed the benchmark was met.

The union believes the proceedings could help drivers be recognized as employees of Uber, a matter the company says will be dealt with at a subsequent hearing.

Ivanova expects Canada and the world will see more of these cases, especially if Heller wins.

“Globally we are in a phase where we are seeing that there is a need to modernize our workplace protection with the emergence of this gig economy,” she said.

“Nobody’s really yet developed the right way to do it so we’re all experimenting and trying to figure out what’s going to happen.”

— with files from Paola Loriggio in Toronto

This report by The Canadian Press was first published June 26, 2020.

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