Ontario court certifies class-action lawsuit against Uber over wages, vacation pay

TORONTO – Ontario’s Superior Court of Justice has admitted a class action lawsuit against Uber Technologies Inc. advancing the battle to get some Canadian couriers and drivers on the platform recognized as employees.

The class action lawsuit was upheld by Judge Justin Paul Perell in a ruling released late Thursday afternoon and stems from a court motion filed in 2017 by Samfiru Tumarkin LLP and Uber Eats courier David Heller.

The Toronto law firm and the Ontario man’s class action lawsuit argue that Uber couriers should be eligible for minimum wages, vacation pay, and other safeguards because they meet the definition of worker under the Ontario Employment Standards Act.

“Uber has complete control over these drivers, when they work, how they work and what they are paid for their work,” said Samfiru Tumarkin, attorney at law at Samara Belitzky.

“I could go on like this, but there are so many examples of Uber controlling these drivers, but the drivers do not have the benefits and protections that workers normally have in situations where the employer is in control.”

Uber has long refused to recognize couriers and drivers as employees who use its platform, instead comparing them to independent contractors because they have the flexibility to drive or deliver as little or as much as they want.

The San Francisco, California-based tech giant has been fighting the Heller case since it was brought to court five years ago.

He managed to stay the case in 2018 because any disputes it is involved in had to go through mediation in the Netherlands, where its business was once registered.

Uber’s Canadian ride-hailing and grocery delivery business has since moved from the Netherlands to Canada and started collecting sales taxes in July, which are paid to the government.

In 2019, the Ontario Court of Appeals overturned Uber’s preserved residency, so the company took its arguments to the Supreme Court of Canada, where it lost later that year.

Thursday’s certification allows the class action lawsuit to go to Canadian courts again, though Uber could re-appeal the case for other reasons.

“We will examine the verdict more closely in the coming days,” said the company.

“We continue to focus on creating a better future for app-based employees that offers the flexibility and independence they want, with the benefits and protection they deserve.”

If the class action lawsuit ends with the drivers’ victory, Belitzky said it will be a “landmark decision.”

“There’s nothing like it in Canada. It will be a first for Canada for sure, ”she said.

“It will change the employment landscape because many of these companies, including Uber, have been able to misrange their drivers and as a result, they are now essentially reaping all of the benefits.”

Uber has been promoting a work model called Flexible Work + in Canada for the past few months.

The model it is proposing to provinces requires app-based gig employers to amass self-directed benefit funds that can be distributed to drivers for prescriptions, dental and eye care, and offer safety training and tools like reflective vests.

Uber says it’s pursuing the model because an October poll of more than 600 Uber couriers and drivers in Canada found 65 percent prefer flexible working +. Around 16 percent still like the current freelance model and 18 percent want to be classified as employees with social benefits.

However, many gig workers, unions, and labor lawyers are resisting the proposal because they say it allows Uber to continue to unfairly treat couriers and drivers and keep them in a precarious state.

Canadian Labor Congress President Bea Bruske welcomed the court ruling, saying that all workers should receive protection and benefits in the workplace.

“Uber has dictated workers’ terms and conditions for far too long, but has not been responsible for providing minimum wages and vacation pay,” she said in a press release.

“Labor law – is the law – and it applies to all companies. Canada’s unions support the decision to certify this class action lawsuit and are inviting coast-to-coast Uber drivers to unionize and negotiate their rights collectively. ”

This report by The Canadian Press was first published on August 12, 2021.