Canadian HR Reporter

N E W S 8 www.hrreporter.com Certification of class action further blow to Uber's plans The Ontario Superior Court's recent decision furthers debate about the status of drivers who claim they have been misclassified as independent contractors, says Sarah Dobson THE decision itself, whichever way it goes, "will have ver y far-reaching consequences for employ- ment law in Ontario and potentially in Canada." So says Samara Belitzky in discussing the Ontario Superior Court of Justice's certification of a $400-million class-ac- tion lawsuit against Uber, filed on behalf of Uber drivers who claim that they have been misclassified as inde- pendent contractors. "Ultimately, if we are successful… we will be securing their minimum employment protections and employ- — the case involving Uber is noteworthy because it's such a high-profile company in the gig economy, says Paul Boshyk, a partner at McMillan in Toronto. "That's significant because of the implications or the trickle-down effect that it may have for other companies in this space." Certifying the class action In certifying the class action, the court found that there is at least some basis in fact that the drivers may have been misclassified, and that misclassifica- tion is a systemic, common issue for individuals working for the ride-share company. The common issues focus on whether the relationship between Uber and class members is that of: service provider and customer; employer and employee; or employer and independent contractor, said Justice Paul Perell in his Aug. 12 decision Heller v Uber Technologies Inc. "There is a serious controversy about the commonality or conversely with the idiosyncrasy of the relationship between the parties and this controversy is amplified because the contracts upon which the relationships are based have constantly been changing." ment rights for all of these Uber drivers. And that will have a ripple effect throughout the gig economy," says Belitzky, a senior associate at Samfiru Tumarkin in Ottawa, which is representing the Uber plaintiffs. "It's also important for all the other workers in Ontario and even throughout Canada who are in similar situations." The case is unique in that a lot of employment misclassification cases focus on one particular issue, such as overtime, vacation or whether certain employees are managers or not. And while there have been cases debating if someone is an employee versus an inde- pendent contractor, those were in more of a traditional employment setting, she says. "What sets this case apart is that it's the first of its kind in Ontario with respect to what we call the gig economy… this is the first case that deals with the test in these particular circumstances." While there have been certifications in the last couple of years with regards to misclassification of independent contractors — such as the 2016 case involving Just Energy and door-to-door sales agents or the 2020 labour rela- tions case involving Foodora couriers The plaintiffs say they are employees working for Uber, based on the commonality of: the functionality of the Uber app; the terms of the standard form service agreements, which are not negotiable; associated rules of contract performance imposed on drivers and delivery people; and some external rules and regulations imposed by municipali- ties on users of the Uber apps. However, Uber says the drivers and delivery people are independent contrac- tors, which is a status expressly attributed to them in the service agreements, so there cannot be a common issue about employment status misclassification. In determining whether a worker is an employee or contractor, the court must consider several factors, including: the intentions of the parties; how the parties themselves regarded the relationships; the behaviour of the parties toward each other; and the manner of conducting their business with one another. It's also about looking at the extent to which the worker worked exclusively for that employer, said Perell. "The greater the level of exclusivity over the course of the relationship, the greater the likelihood that the worker will be classified as a dependent contractor." In the end, there is some basis in fact that there is a genuine dispute about whether the Uber App users are working only for themselves in a shared economy RISE OF GIG WORK IN CANADA Source: Samfiru Tumarkin, Statistics Canada $400 million Total amount sought by class action ($200 million in compensation; $200 million in punitive damages) 72,000 Number of adults in Canada offering peer-to-peer ride services in 2016 8.2% The share of gig workers among all workers in 2016 — up from 5.5% in 2005 $4,303 The median net gig income of a typical gig worker in Canada in 2016

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