We blogged about David Heller and his fight against Uber last May when leave to the Supreme Court of Canada was granted. You can catch up on the history and read that post here. If you’re a true nerd you can also watch footage of the arguments made in the Supreme Court here!  The Supreme Court’s decision has now been released.

A Brief History

Heller, a driver for UberEats, brought a class action suit against Uber in 2017 alleging that he was an employee under the Employment Standards Act, 2000 (“ESA”). Uber, in response to this suit, said that Heller could not sue in Ontario because of the arbitration clause in his contract with Uber. 

The Arbitration Clause

Putting aside the issue of whether Uber drivers are employees – entitled to things like public holiday pay, vacation pay, notice of termination etc. under the ESA – the suit became about the correct forum. Could Heller bring Uber to court in Ontario? Or did the arbitration clause in the contract with Uber apply?

The arbitration clause – which was contained in the standard-form click-through contract drivers agree to in order to become Uber drivers – stated that disputes would be resolved by the International Chamber of Commerce in the Netherlands. 

Starting arbitration under this process would cost about $15,000 USD – about as much as Heller made annually. 

The Lower Court Decisions

The motion judge agreed with Uber and stayed Mr. Heller’s suit. The judge thought that the arbitration clause did mean that Mr. Heller should have brought his dispute to the Netherlands. Heller appealed this decision to the Ontario Court of Appeal who found that the arbitration clause was invalid and unconscionable at common law. They found that asserting their rights under the arbitration clause would be impossible for most Uber drivers. They also found that the clause contracted out of the ESA – should the drivers have been found to be employees the original reason for Heller’s suit. 

The Supreme Court Puts the Matter to Rest 

The Supreme Court agreed with the Ontario Court of Appeal and held that the contract was invalid. The lawsuit could be brought in the Ontario court.

The Supreme Court found the arbitration clause “unconscionable” because of the enormous barriers it presented to any driver looking to assert their right under the contract. 

The Supreme Court did not weigh in on whether the contract also illegally contracted out of the ESA. 

What Now?

Three years later, now that the question of forum has been decided, Mr. Heller and the Uber class can get back to fighting about whether they are independent contractors (as Uber argues they are) or employees (as Mr. Heller would like to be). The employee vs. independent contractor question is an important one that could drastically change the gig economy. If Uber had to pay all drivers vacation pay and public holiday pay would Uber even survive? 

This series of cases also provides clarity on the validity of click-through type contracts. Where one party has no bargaining power, doesn’t understand the contract, and ends up being unable to ever assert their rights under the contract, the contract may be held to be invalid. 

If you have questions about employees vs. independent contractors in your workplace or about setting up contracts generally get in touch for a legal consultation.

The CEWS, the CERB and Returning to Work
Photo by Ewien van Bergeijk – Kwant on U

As we look towards returning to work and re-opening businesses we thought we would re-visit the CEWS and CERB, both of which have recently been extended. 

The CEWS (Canada Emergency Wage Subsidy) continues to provide employers with a wage subsidy to bring employees back. The CERB (Canada Emergency Response Benefit) may be working against employers in some instances, where employees do not want to come back or serve to make more money by not working and staying on the CERB. 

Extension of the CEWS

The government has doubled the length of the CEWS program to now extend until August 29, 2020. Eligibility for the CEWS is broken down into periods, where an employer needs to demonstrate a specific revenue reduction for that period. Periods 5 (July 5 – August 1) and 6 (August 2 to August 29) are expected to require a 30% reduction in revenue, however, details have not yet been announced. Continue Reading The CEWS, the CERB and Returning to Work

A Guide for Employers during COVID-19

This GuideA Guide for Employers during COVID-19 sets out the key employment law issues to consider, as well as the government’s financial relief options to explore to get through this deep economic crisis.  (Last Updated June 19, 2020).

Further free resources can be found here.

Should you need legal advice on how to manage your workplace during the COVID-19 outbreak, please get in touch.

Terminating Employees for Inappropriate Behaviour
Photo by mana5280 on Unsplash

In the wake of the killing of George Floyd and in the midst of protests and heightened awareness of anti-black racism across the world, two prominent Canadians have been “cancelled.”

Earlier this month Sasha Exeter, lifestyle blogger and influencer, called out Jessica Mulroney for “textbook white privilege.” Exeter explained, calling out Mulroney by name, that Mulroney took offence to her call to action for people with large public followings to use their platforms to address racial inequality and then proceeded to threaten Exeter and her brand.  Soon after Mulroney’s reality show, “I Do, Redo” had been cancelled by CTV, and Cityline, Good Morning America, Hudson’s Bay and apparently Meghan Markle, had all cut their ties with the star.

Continue Reading Cancel Culture at Work: Terminating Employees for Inappropriate Behaviour

My Employee Was Charged with a Criminal OffenceEmployers faced with an employee who has suddenly landed in jail are typically paralyzed with what the heck to do next. It’s easy to see how criminal and employment legal issues start to commingle in that case, but there are many other situations less dramatic where an employer needs to navigate through the tricky world of criminal law.  

And then add in a global pandemic where the courts are largely on pause. Here are some tips on how to handle a criminal law matter in your workplace.

Continue Reading My Employee Was Charged with a Criminal Offence. What now?

A Guide for Employers during COVID-19A Guide for Employers during COVID-19

This Guide sets out the key employment law issues to consider, as well as the government’s financial relief options to explore to get through this deep economic crisis.  (Last Updated June 3, 2020).

Further free resources can be found here.

Should you need legal advice on how to manage your workplace during the COVID-19 outbreak, please get in touch.

Outraged protesters demonstrate against the loss of George Floyd's lifeOutraged protesters took to the streets across the US to demonstrate against the unnecessary loss of life and the complete lack of empathy shown by police officers for a Black man pleading to hold on to his life. George Floyd’s death could have been prevented if there were stricter policies limiting police use of force in Minneapolis. In Minneapolis police are allowed to use chokeholds and that’s how George Floyd was killed. A  30-year study examining police use of force shows that a ban on chokeholds and strangleholds results in 22% fewer police killings. 

Continue Reading The Deaths of George Floyd & Regis Korchinski-Paquet

We are super excited to share that our founder Lisa Stam has been nominated for a Canadian Lawyer Top 25 Most Influential Lawyers “Changemakers Award”!  Lisa has always made it a top priority to make legal services relevant, easy to access & more affordable through tech smarts!

We’d sure appreciate it if you could cast a vote for her – anyone can vote! Please click here.  Voting ends this Friday, June 5.  Thanks so much!

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Continue Reading Cast Your Vote! Lisa Stam Nominated for a Changemakers Award!

new Infectious Disease Emergency Leave regulationAs many of our readers and clients know, we have been cautioning that the legality of certain layoffs and job changes necessitated by COVID-19 is uncertain. Generally, layoffs are only legal if the employment contract gives the employer the right to layoff, and many other job changes, such as reductions in hours or pay, raise the risk of constructive dismissal. We anticipated that at some point the Ontario government may weigh in and change the law – on Friday they did.  

Continue Reading Big Changes for COVID-19 Layoffs in Ontario: New O. Reg 228/20 Infectious Disease Emergency Leave Curtails Constructive Dismissal Claims

COVD-19 and WSIBOntario potentially has another new COVID-19 related law on the horizon, this time related to worker’s compensation. On May 19, Bill 191, Workplace Safety and Insurance Amendment Act (Presumption Respecting COVID-19), 2020 passed first reading in the Ontario Legislature. 

COVID-19 a Presumptive Occupational Disease for Essential Workers

If the Bill is passed, it will amend the Workplace Safety and Insurance Act, 1997 to add a presumption that COVID-19 is an occupational disease for workers working for essential businesses as deemed by an Order under the Emergency Management and Civil Protection Act

Continue Reading COVID-19 and Proposed Amendments to the Workplace Safety and Insurance Act, 1997