Canadian HR Reporter

www.hrreporter.com 9 "There are some really nuanced and potentially very complicated preliminary issues that still have to be resolved." Paul Boshyk, McMillan So, these are things that are going to have to be impacted." For the plaintiffs to truly be successful, the courts are going to have to find that they are employees, not contractors, says Boshyk. "Take the Uber driver or delivery person who derives a majority of their income from Uber from the work that they do using the Uber app — that person, because they're economically dependent, could very well be a dependent contractor. But, at the same time, they're using their own tools and equipment; primarily, their own car. They're setting their own hours, so I think it will make it more difficult at the trial level for the plaintiffs to be successful." The courts will also look at whether people are economically dependent on the company as their main source of income, he says. "Although… dependent contractors aren't covered by the Employment Standards Act or other applicable employment standards legislation, it's just that there's an implied term in a dependent contractor relationship that reasonable notice has to be provided. So, I'm not convinced that it would help the plaintiffs in the Uber case for them to be classified as dependent contractors, because the thrust of what they're claiming is minimum wage, holiday pay, vacation pay, potentially termination with Uber or are working for Uber as an employee or as an independent contractor, he said. "And there is some basis in fact that there is a commonality of eviden- tiary factors including principally the system and controls imposed by the Uber App and by the associated Service Agreements." Determining commonality, misclassification Commonality is established in that the class members are either completing rides or deliveries, or both, so there is no other type of work they're carrying out. Plus, they all have the same service agreements, says Belitzky. "Overall, from a high-level perspective, the terms that these drivers are subject to are basically the same." In going through the analysis, the court will have to update the test in looking at various factors, such as the degree of control in the relationship, and what that control looks like, says Belitzky. Traditionally, the courts would also look at who provides the tools for the job, she says. "In modern day, that's not necessarily indicative of an employee versus independent contractor because there are many employees who may use their own tools, especially during the pandemic for people working remotely. and severance pay — all things that are minimum statutory entitlements under the Employment Standards Act." Further complications Last summer, the Supreme Court of Canada said a clause in Uber's service agreement requiring workers to take their disputes to the Netherlands was unconscionable and unenforceable. As a result, Uber revised the mandatory arbi- tration clause to make it more enforce- able under Canadian laws. The company also asked drivers to sign an updated contract that states they agree not to take part in class action against the company. But when those were rolled out, there wasn't clear notification to the drivers about the change, says Belitzky. "There are specific sections in the Class Proceedings Act that govern c o m m u n i c a t i o n s b e t w e e n c l a s s members… and [we allege] that those sections were not complied with… in terms of giving notice to the drivers when they implemented the class- action waiver." More recently, Uber put forward a Flexible Work+ proposal, which calls on provincial governments to set up an alternative set of regulations to govern gig workers and offer them "self-directed benefits" and "enhanced worker protections." It also proposed an Employee Benefits Fund that would be enabled by provincial governments and managed by industry. "[That] may be helpful down the line, but what we're dealing with right now is the rights of these workers going back many years now and up to the present... so a legislation that would be enacted in the future is certainly not going to provide a remedy for the past," she says. This case is far from over, says Boshyk. " There are some really nuanced and potentially ver y complicated preliminary issues that still have to be resolved before we even get to a point where the employee-versus-contractor determination is made.... But it will certainly be interesting… to see where the chips are going to fall." CHRR

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