Ontario court certifies class action against Uber that could see some workers recognized as employees

Ontario's Superior Court of Justice has certified a class-action lawsuit against Uber Technologies Inc., which advances a fight to get some of the platform's Canadian couriers and drivers recognized as employees.

The class action, certified by Justin Paul Perell in a decision released late Thursday afternoon, stems from a court filing made by Samfiru Tumarkin LLP and Uber Eats courier David Heller in 2017.

The law firm and the Ontario man's class action argues that Uber couriers should be entitled to minimum wage, vacation pay and other protections because they meet the definition of employees under Ontario's Employment Standards Act.

"Uber has complete control over these drivers, when they work, how they work, what they get paid for the work that they do," said Samfiru Tumarkin lawyer Samara Belitzky, who works in the firm's Ottawa office.

"I could go on and on, but there are so many examples of how Uber has this control over these drivers, yet the drivers don't have the benefits and the protections that employees would normally have in situations, where the employer is in control."

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

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

It succeeded in getting the case stayed in 2018 because it required all disputes it is involved in go through mediation in the Netherlands, where its business was once incorporated.

Uber's Canadian ride-hailing and food-delivery business has since shifted from being based in the Netherlands to Canada and in July started collecting sales tax that will be remitted to the government.

In 2019, the Ontario Court of Appeal reversed the stay Uber obtained, so the company took its arguments to the Supreme Court of Canada, where it lost later that year.

Class action could have far-reaching consequences

Thursday's certification allows the class action to proceed through Canadian courts again, though Uber could appeal the case again on other grounds.

"We'll review the ruling more closely in the coming days," the company said in a statement.

"We remain focused on creating a better future for app-based workers that provides the flexibility and independence they want, with the benefits and protections they deserve."

If the class action winds up with the drivers winning, 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 landscape of employment because a lot of these companies, including Uber, up until now have been able to get away with misclassifying their drivers, and so they essentially reap all the benefits now."

Uber skirting Canadian labour law, critics say

Uber has been pushing a labour model called Flexible Work+ in Canada in recent months.

The model it is proposing to provinces requires app-based gig employers to accrue self-directed benefit funds that can be dispersed to drivers for prescriptions, dental and vision care and provide safety training and tools such as reflective vests.

Uber says it is pursuing the model because an October survey of more than 600 Uber couriers and drivers in Canada showed 65 per cent favoured Flexible Work+. Roughly 16 per cent still like the current independent contractor model and 18 per cent wanted to be classified as employees with benefits.

However, many gig workers, labour groups and employment lawyers are fighting the proposal because they say it allows Uber to keep treating couriers and drivers unfairly and keeps them in a state of precarity.

Canadian Labour Congress president Bea Bruske hailed the court ruling and said all workers should have workplace protections and benefits.

"For far too long, Uber has dictated the terms of workers' employment but hasn't been accountable for providing a minimum wage and vacation pay," she said in a release.

"Labour law is the law and it applies to all companies. Canada's unions support the decision to certify this class action and invite Uber drivers from coast-to-coast to unionize and collectively bargain their rights."