On January 30, the Ontario Superior Court stayed a $400-million proposed class action lawsuit against Uber concerning the misclassification of its drivers as independent contractors. The court determined that the arbitration clause found in Uber drivers’ contracts, which declares that all employment disputes are to be arbitrated in the Netherlands, does not breach the province’s Employment Standards Act. The decision is being appealed.
“There is a real risk now that Ontario’s workers’ fundamental rights as provided by the Employment Standards Act can be completely bypassed,” said Lior Samfiru, founding partner of Samfiru Tumarkin LLP and the employment lawyer representing the plaintiff in Heller v. Uber Technologies Inc. “It would be virtually impossible for most drivers in Ontario to pursue their rights 6,000 km away in the Netherlands. If other companies follow suit, any employer in the province can decide to bind an employee to an arbitration in any part of the world they choose. This means that employee rights in this province are a thing of the past.”
In The News
The Ontario Ministry of Labour introduced significant changes to the Employment Standards in 2017, including increases to the minimum wage and stiffer penalties for the misclassification of employees as independent contractors.
“All of those changes are essentially meaningless and a waste of time and resources, if those rights cannot be enforced in an employee’s province of employment,” said Samfiru. He states that an employer could take away every single employee right and then state that, if the employee wishes to dispute the company’s actions, it can only do so through a costly arbitration in a foreign jurisdiction. “The Ministry of Labour must take immediate action to update the Employment Standards Act to further strengthen employment law in the province.”
The provincial government can easily resolve this issue by amending the Employment Standards Act or its Regulations, to state that an employer may not take away the fundamental right of individuals to pursue employment entitlements in Ontario.
Arbitration Clause: How You Can Help
If you are employed in Ontario, and want your workplace rights to remain protected under the Employment Standards Act, let your voice be heard by The Ministry of Labour. You should not have to pursue your fundamental employment rights beyond Ontario borders, where prohibitive costs and distance makes the defence of those rights next to impossible.
Toronto Star: Read About This Issue
This concerning workplace issue was the focus of a story in The Toronto Star.
When asked by reporter Sara Mojtehedzadeh about the January 30 decision, and an arbitration clause’s ability to sidestep the Employment Standards Act, Ministry of Labour spokesperson Janet Deline said that Labour Minister Kevin Flynn was “aware of the superior court decision”, and that “The Government of Ontario is currently reviewing the case and considering whether to seek leave to intervene in this matter.”