Blaney's Appeals: Ontario Court Of Appeal Summaries (January 1 – 4, 2019)

Good evening and Happy New Year to all our readers!

There were only two substantive civil decisions of the Court of Appeal this week. Most notably, in Heller v Uber Technologies Inc., the Court revived a proposed class action by Uber drivers against Uber alleging that they are employees who have been denied rights under the Employment Standards Act, rather than independent contractors. Justice Perrell had stayed the class proceeding on jurisdictional grounds in favour of Uber's arbitration clause requiring all disputes to be arbitrated in the Netherlands under Dutch law, and only after payment of a large fee. The Court determined that the arbitration clause was invalid and unenforceable because it purported to contract out of the Employment Standards Act, even though it remains to be determined whether the Uber drivers actually are employees.

Have a nice weekend.

John Polyzogopoulos

Blaney McMurtry LLP

416.593.2953 Email

CIVIL DECISIONS

Heller v. Uber Technologies Inc., 2019 ONCA 1

[Feldman, Pardu and Nordheimer JJ.A.]

Counsel:

M. Wright, D. Stampley, L. Samfiru, S. Gillman and J. Omran, for the appellant

L. Talbot and S. Whitmore, for the respondents

Keywords: Contracts, Arbitration Clauses, Enforceability, Unconscionability, Employment Law, Employment Standards, Civil Procedure, Class Proceedings, Jurisdiction, Stay of Proceedings, Arbitration, Statutory Interpretation, Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 SCR 27, Machtinger v HOJ Industries Ltd., [1992] 1 SCR 986, Titus v William F. Cooke Enterprises Inc, 2007 ONCA 573, Douez v Facebook, Inc., 2017 SCC 33, International Commercial Arbitration Act, 2017, SO 2017, c 2, Sched 5, Arbitration Act, 1991, SO 1991, c 17, s. 7, Employment Standards Act, 2000, SO 2000, c 41, ss. 1, 5 and 96

Facts:

The appellant was an Ontario resident licensed to use the respondents' driver app to provide food delivery services. In registering for the app, the appellant was required to agree to its terms and conditions, which stipulated that any dispute between a driver and the respondents be arbitrated in Amsterdam, and be governed by Dutch law ("the Arbitration Clause"). Additionally, the up-front administrative costs for a driver to participate in arbitration were a minimum of US$14,500. The appellant earned about C$20,800-$31,200/year, before taxes and expenses.

The appellant commenced a proposed class action against the respondents, seeking a declaration that the drivers in Ontario who use the driver app to provide transportation or food delivery services are in fact employees of the respondents and are governed by the provisions of the Employment Standards Act, 2000, SO 2000, c 41 (the "ESA"). The claim also sought a declaration that the respondents violated the provisions of the ESA, and that the arbitration provisions of the services agreements entered into between the parties were unenforceable.

The respondents moved for a stay of proceedings. The motion judge granted the stay, observing that courts must enforce arbitration agreements freely entered into, even in contracts of adhesion. Any restriction on the parties' freedom to arbitrate must be found in legislation. He additionally concluded that the plain language of the ESA did not restrict the parties from arbitrating, and that the arbitrability of employment agreements was not a question of pure statutory...