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First lawsuit against Uber in Canada certified to move forward by Ontario Superior Court

On Monday, August 9, Ontario’s Superior Court of Justice certified a class-action lawsuit against Uber Technologies Inc., enabling the suit to move forward. Justice Paul Perell’s decision stems from a court filing made by Samfiru Tumarkin LLP and Uber Eats courier David Heller in 2017.

Lawyer Samara Belitzky of Samfiru Tumarkin LLP

Perell’s decision reads in part, “The Plaintiffs submit that Uber has breached its employment contracts with the putative Class Members and contravened Ontario’s Employment Standards Act, 2000.  They also plead that Uber is liable for unjust enrichment and negligence. The putative class may be as large as 366,359 persons who have provided at least one ride or delivery using the Uber App.”

Samara Belitzky, a Senior Associate at Samfiru Tumarkin LLB, spoke to Road Warrior News on the status of the case, and what industry watchers might expect to see in the months and years ahead.

“Certification of the case is a great success, but don’t forget this suit was launched in 2017,” says Belitzky, who worked to support Samfiru’s original suit but was not the legal counsel of record at that time. “It has already taken four years to get to where we are today.”

Although Uber has not announced whether or not it plans to appeal Perell’s decision, it is probably reasonable to expect them to do so, Belitzky points out.

(Uber has not returned calls from Road Warrior News, and has not posted any statement regarding the case to its Canadian or Investor websites.)

“If Uber appeals, we will have to argue that appeal first. Then, if we are successful, we will get to move on to a hearing of the actual Uber vs. Heller case. It could take two or three years before we finally have resolution.”

The fact that this case is being addressed in Canada at all is largely the result of the June 26th decision by the Supreme Court of Canada that it was “unconscionable” for Uber, which is headquartered in the Netherlands, to require lawsuits to be brought in the Netherlands.

“This is why the Supreme Court of Canada decision from last summer is so important,” Belitzky says. “Uber has already made amendments to their service agreements, and they’ve changed the arbitration clause. So, they’re still trying to limit their drivers to arbitration, but in Canada now.”

Belitzky notes that the challenge by Heller “changes the landscape for the gig economy but also for any employer who wants to include language like that in an employment agreement or service agreement. You know, the court was very clear: you can’t do it (force employees to spend more than their wages travelling to another nation to sue). It’s unconscionable.”

Currently, the province of Ontario is holding discussions on “the future of work,” with an online consultation which closed on July 31st. While these consultations may result in changes to legislated definitions of terms including “dependent contractor,” “independent contractor” and “employee,” Belitzky explains that the new legislation would not impact decisions in a court case launched in 2017.

“New legislation would not impact the case retroactively, but we could expect new cases to arise concerning any new definitions in updated legislation,” she says.

Andy Reti represents the group All Taxi Owners and Operators Ltd. (ATOOL) which was recently unsuccessful in its attempt to sue the City of Toronto. ATOOL’s attempt to have a $1.7-billion class action suit certified against the City of Toronto was dismissed on April 19, 2021.

“If Uber drivers are defined as employees, it will be forced to leave,” predicts Reti, who points out that most Uber drivers are former taxi drivers anyway. “You can expect Uber to be doing intense lobbying of the Ontario government; I predict Ontario will change its definitions of dependent contractor, independent contractor and employee.

“If Uber is has to define its drivers as employees, it will be forced to leave Ontario.”

Marc Andre Way, President of the Canadian Taxi Association, is also watching the case as says its good news:

“This is good news for the drivers and our industry, which remains highly regulated. This is very important to follow, now that we know Uber is presently lobbying the Ontario Government to change the labour act to accommodate the Gig workers or companies.  Let’s hope our provincial politicians don’t drink the Uber Kool Aid, like the municipal politicians did.”

 

The court was very clear: you can’t do it. It’s unconscionable.”

Samara Belitzky, Samfiru Tumarkin LLP