June 29, 2020
In a win for “gig” economy workers, the Supreme Court of Canada found in Uber Technologies Inc. v. Heller that the onerous mandatory arbitration clause in Uber’s service agreements is unconscionable.
The Supreme Court of Canada released the decision Uber Technologies Inc. v. Heller. This decision was an appeal from the Ontario Court of Appeal. The Court of Appeal found that Uber’s mandatory arbitration clause was “unconscionable”. The Clinic intervened to argue that mandatory arbitration clauses, like Uber’s, undermine the minimum protections for workers in Ontario.
Tech companies like Uber employ a large number of people in Ontario and worldwide but take the position that their workers are in fact independent contractors. This tactic allows them to avoid the obligations that all employers have toward their workers’ safety.
Mr. Heller was a delivery driver for Uber. He started a class action against the company on behalf of all of Uber’s drivers. Uber argued that any disputes between them and Mr. Heller had to be resolved through arbitration and that the class action should be stayed. The Clinic sought to provide the Court with the perspective of workers like Uber’s employees who need to be able to resort to the inexpensive enforcement mechanism provided for in the Employment Standards Act, the Occupational Health and Safety Act, and the Workplace Safety and Insurance Act.
The Clinic told the Court that our clients need statutory minimums and the means to enforce those minimums. The Clinic took the position that the mandatory arbitration clause subverted workers’ means of enforcing the Acts. This intervention is part of a broader effort to ensure that employers cannot force workers to contract out of their minimum rights by telling their workers that they all “agree” that they are “independent operators”.
A majority of the Supreme Court rejected Uber’s appeal and agreed with the Court of Appeal. The Court found that the requirements of the arbitration terms were unconscionable. Given that the arbitration requirement was not valid, the class action could continue. The Court did not address the question of the applicability of the Employment Standards Act.
To learn more about this decision, visit the court’s Case In Brief.
To review the decision itself - Uber Technologies Inc. v. Heller [2020 SCC 16]