On March 29, thousands of Uber drivers across Ontario received a message from the tech giant about a class-action lawsuit that could redefine their relationship with the platform. The message informed drivers (automatically added as members to the class) that they had until May 28 to decide to opt out of the legal proceedings — formally known as Heller v. Uber Technologies.
The lawsuit will seek to answer definitively whether Uber's drivers are justly classified as independent contractors under Ontario employment law or whether they’ve been denied the title of “employee” and the protections the title confers. TVO Today breaks down the case and what comes next.
Who is Heller, and why is he suing Uber?
In 2017, Uber driver David Heller filed a class action with the Ontario Superior Court of Justice alleging that Uber had violated the Employment Standards Act by not paying him a minimum wage, overtime, or vacation pay as an employee of the company.
In response, Uber filed a motion to stay, or halt, the proceedings in favour of arbitration abroad. When Heller, like all drivers in the province, first downloaded the app, he’d consented as a part of Uber's standard service agreement to resolve any complaints through mediation in the Netherlands, where the company was first incorporated.
In court, Heller’s defence team argued that the clause denied him and other drivers access to justice given Uber’s prohibitively expensive mediation process. The administrative and filing fees to arbitrate alone totalled USD$14,500. Heller earned on average between $400 and $600 a week driving for Uber, before taxes and expenses.
“This was the main argument in Heller,” says Ryan White, a partner with the Toronto-based employment law firm Cavalluzzo LLP. “That the balance of power apparent on the face of the contract was so clearly tilted in favour of Uber — that for public-policy reasons, it could not be enforced.” In 2020, White successfully represented the Canadian Union of Postal Workers in their bid to unionize Foodora delivery workers. Two months after its couriers became the first app-based workforce in Canada to unionize, Foodora’s parent company announced it would leave the Canadian market.
After a series of appeals from both the company and the plaintiff, Uber Technologies v. Heller made its way to the Supreme Court of Canada. Three years after Heller’s initial filing, in a historic judgment, the court ruled in his favour — finding that his contract was unjust and non-binding.
Why is the case ongoing if the Supreme Court has ruled on it?
The Supreme Court effectively ruled only as to whether the arbitration clause in Heller’s contract was enforceable. When the federal court’s decision voided the clause, it allowed Heller’s case to proceed at the Ontario Superior Court of Justice.
Now in the process of discovery, Heller v. Uber will rule on the labour violations alleged by Heller and other drivers — namely, whether they’ve been misclassified as independent contractors and are eligible for minimum wage. If the class action is successful, Uber drivers could gain access to legally mandated sick leave and support for the vehicles they require to work. In some cases, drivers could be owed years of minimum-wage back pay.
Under Ontario law, the difference between an independent contractor and an employee boils down to the level of autonomy one has over one’s work. According to the Employment Standards Act, if an employer has significant control over how, when, and where work is completed and provides tools, equipment, and training, the worker should be considered an employee. If a worker operates more like a separate business, they should be classified as an independent contractor.
In its most recent message to drivers, Uber categorically denied Heller’sallegations, claiming that drivers and delivery people who use its platform are “customers of Uber who license and use the Uber apps to earn money by providing transportation and delivery services to their customers.” Uber did not respond to TVO Today’s request for comment.
“The issue in this case is that Uber and other platform-based employers have structured their business in such a way that, rather than acknowledging that they are employers, they unilaterally deem their employees to be independent contractors,” says White.
Why is this case taking so long?
Michael Wright, a partner with Wright Henry LLP and a co-counsel in the class action, argued on behalf of the plaintiffs at both the Ontario Court of Appeal and the Supreme Court of Canada. He says it can be a lengthy procedural process to get a complex class action moving.
“This [case] certainly has a longer trajectory largely because the case was initially stayed,” or halted by a judge, says Wright. “That process at the outset took several years and had to be completed before the case could effectively get to the starting line.”
While Wright says it’s rare for any corporate defendant to be anxious to proceed with their case, president of Toronto-based Gig Workers United Jennifer Scott says Uber has purposefully delayed the case to drivers’ detriment. Gig Workers United organizes under the leadership of the Canadian Union of Postal Workers.
The length of this case is one of the most common concerns Scott hears about from drivers.
“The class action was an attempt to reconcile injustices through compensation,” she says. “The longer it's delayed and the more drawn out it is, then the longer it takes the workers to get that reconciliation.”
Wright thinks it’ll be some time before the case makes its way to trial, but he’s confident in their position.
“If we are successful, it will cause a significant re-evaluation about how many individuals are undercompensated in our society,” he says. “There are people doing this work in the province who are not being compensated based on what we as Ontarians have decided is the minimum standard for any worker. In my view, it's unlawful and unsustainable.”
Could this case affect other gig workers?
According to StatCan, nearly a million people in Canada pay their bills primarily through gig work, with more turning to freelancing every passing year.
“Uber is the biggest player in the platform world, and a decision that affects them will have ripple consequences,” says White. He cites the rise of platforms in the health care and hospitality sectors to schedule casual shifts as evidence that the legal proceedings will have an impact on more than just Uber drivers.
“This is a business model that is already spreading, and it will continue to spread,” says White. “If it's not properly regulated, it's very easily the kind of thing where, a decade from now, there will only be more people and more industries affected by business models. What happens here will matter a great deal for how those things play out.”
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