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Important update: Uber class action suit

Seven years after it began, a court action against Uber is proceeding in Ontario Court.

Heller v Uber was launched by employment law firm Samfiru Tumarkin LLP in 2017 on behalf of UberEats delivery person David Heller. It is now moving forward as a Class Action suit, and may have implications for every driver and delivery person who provide transportation and delivery services through the Uber Apps any time since January 1, 2012.

As noted on the website, “The Class is claiming damages in respect of Uber’s failure to pay the Class minimum wage, vacation pay, public holiday and premium pay, termination pay, and potentially overtime pay. The Class is also seeking damages in respect of their out-of-pocket expenses incurred while providing transportation and delivery services with the Uber Apps, any adverse tax liability incurred as a result of their misclassification, and unpaid Canada Pension Plan and Employment Insurance Act contributions. The Court has held that the amount of damages owing, if any, will depend on individual assessments, which could take place after the Common Issues Trial.

“The Court has not taken any position as to the truth or merits of the claims asserted by Mr. Heller and Ms. Garcia or of Uber’s defences to those claims. The allegations made by Mr. Heller and Ms. Garcia have not yet been proven in court.”

The text below is from the website of law firm Samfiru Tumarkin LLP. The notice is available online at www.uberlawsuit.ca in French, Arabic, Mandarin, Hindi, Cantonese, Punjabi, Tagalog, Urdu, Korean, Tamil, and Spanish.

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1. CERTIFICATION OF CLASS ACTION

“On August 12, 2021,   an action known Heller v Uber Technologies Inc, Court File No., CV-17-567946-00CP, was certified as a class proceeding by order of the Ontario Superior Court of Justice (“the Court”). This means that the common issues that have been certified (and which are described at www.uberlawsuit.ca) will be tried in a single proceeding, called the Common Issues Trial, on behalf of members of the Class (defined below) subject to further order of the court. The Order appointed David Heller and Felicia Garcia as Representative Plaintiffs for the Class.

2. WHAT THIS CLASS ACTION IS ABOUT

The Representative Plaintiff David Heller used the Uber App to provide delivery services, and the Representative Plaintiff Felicia Garcia uses the Uber App to transport passengers and provide delivery services.

The Defendants are Uber Technologies Inc., Uber Canada Inc., Uber B.V., Rasier Operations B.V., and Uber Portier B.V. (collectively referred to as “Uber”). Uber is a technology company that, among other things, develops and licenses computer software applications (referred to as the “Uber Apps”). Uber enters into services agreements with drivers and delivery people who use the Uber Apps to provide transportation and delivery services to third parties throughout Ontario.

Mr. Heller and Ms. Garcia, on behalf of themselves and the Class of persons described below, are claiming damages from Uber for breach of the Ontario Employment Standards Act and breach of contract. Mr. Heller’s and Ms. Garcia’s primary claim is that Uber misclassified the drivers and delivery people who provide transportation and delivery services through the Uber Apps as independent contractors and therefore unlawfully deprived them of entitlements owed to them as employees under the Ontario Employment Standards Act.

Uber’s response to the plaintiffs’ claims is that drivers and delivery people are not employees of Uber. Instead, Uber contends that drivers and delivery people are customers of Uber who use the Uber Apps to earn money by providing transportation and delivery services to their customers. Uber’s position is that drivers and delivery people are not employees because they have the flexibility to use the Uber Apps when and where they choose, without shifts or assignments; can decline requests; can use any other ridesharing or food delivery apps, or engage in any other occupation or business; have no manager; choose their own method of transportation; and do not wear uniforms. Uber also takes the position that drivers and delivery peoples’ employment status cannot be determined in common because the drivers and delivery people do not all have the same experience and relationship with Uber.

If the Class is successful, the existing contractual relationship between Uber and the drivers and delivery people who participate in the class action will be modified. Rather than be classified as customers of Uber or as independent contractors, these drivers and delivery people would be classified as employees of Uber and would be treated as if they were “working for Uber” when using the Uber Apps.

At the Common Issues Trial, the Court could determine one (or a combination of) the following outcomes:

  1. the drivers and delivery people (or some of them) are customers of Uber, not employees;
  2. the drivers and delivery people (or some of them) are independent contractors, not employees;
  3. the drivers and delivery people (or some of them) are employees of Uber; or
  4. that for all drivers and delivery peoples, their employment status cannot be determined in common but will require individual trials.

The Class is claiming damages in respect of Uber’s failure to pay the Class minimum wage, vacation pay, public holiday and premium pay, termination pay, and potentially overtime pay. The Class is also seeking damages in respect of their out-of-pocket expenses incurred while providing transportation and delivery services with the Uber Apps, any adverse tax liability incurred as a result of their misclassification, and unpaid Canada Pension Plan and Employment Insurance Act contributions. The Court has held that the amount of damages owing, if any, will depend on individual assessments, which could take place after the Common Issues Trial.

The Court has not taken any position as to the truth or merits of the claims asserted by Mr. Heller and Ms. Garcia or of Uber’s defences to those claims. The allegations made by Mr. Heller and Ms. Garcia have not yet been proven in court.