Notice of Certification of Uber Misclassification Class Action
If you used an Uber App to transport passengers and/or to provide delivery services at any time since January 1, 2012, your legal rights might be affected. You should read this notice carefully.
This Notice is available online at www.uberlawsuit.ca in the following languages: French, Arabic, Mandarin, Hindi, Cantonese, Punjabi, Tagalog, Urdu, Korean, Tamil, and Spanish.
1. CERTIFICATION OF CLASS ACTION
On August 12, 2021, an action known as Heller v Uber Technologies Inc, Court File No., CV-17-567946-00CP, was certified as a class proceeding by order of the Ontario Superior Court of Justice (“the Court”). This means that the common issues that have been certified (and which are described at www.uberlawsuit.ca) will be tried in a single proceeding, called the Common Issues Trial, on behalf of members of the Class (defined below) subject to further order of the court. The Order appointed David Heller and Felicia Garcia as Representative Plaintiffs for the Class.
2. WHAT THIS CLASS ACTION IS ABOUT
The Representative Plaintiff David Heller used the Uber App to provide delivery services, and the Representative Plaintiff Felicia Garcia uses the Uber App to transport passengers and provide delivery services.
The Defendants are Uber Technologies Inc., Uber Canada Inc., Uber B.V., Rasier Operations B.V., and Uber Portier B.V. (collectively referred to as “Uber”). Uber is a technology company that, among other things, develops and licenses computer software applications (referred to as the “Uber Apps”). Uber enters into services agreements with drivers and delivery people who use the Uber Apps to provide transportation and delivery services to third parties throughout Ontario.
Mr. Heller and Ms. Garcia, on behalf of themselves and the Class of persons described below, are claiming damages from Uber for breach of the Ontario Employment Standards Act and breach of contract. Mr. Heller’s and Ms. Garcia’s primary claim is that Uber misclassified the drivers and delivery people who provide transportation and delivery services through the Uber Apps as independent contractors and therefore unlawfully deprived them of entitlements owed to them as employees under the Ontario Employment Standards Act.
Uber’s response to the plaintiffs’ claims is that drivers and delivery people are not employees of Uber. Instead, Uber contends that drivers and delivery people are customers of Uber who use the Uber Apps to earn money by providing transportation and delivery services to their customers. Uber’s position is that drivers and delivery people are not employees because they have the flexibility to use the Uber Apps when and where they choose, without shifts or assignments; can decline requests; can use any other ridesharing or food delivery apps, or engage in any other occupation or business; have no manager; choose their own method of transportation; and do not wear uniforms. Uber also takes the position that drivers and delivery peoples’ employment status cannot be determined in common because the drivers and delivery people do not all have the same experience and relationship with Uber.
If the Class is successful, the existing contractual relationship between Uber and the drivers and delivery people who participate in the class action will be modified. Rather than be classified as customers of Uber or as independent contractors, these drivers and delivery people would be classified as employees of Uber and would be treated as if they were “working for Uber” when using the Uber Apps.
At the Common Issues Trial, the Court could determine one (or a combination of) the following outcomes:
- the drivers and delivery people (or some of them) are customers of Uber, not employees;
- the drivers and delivery people (or some of them) are independent contractors, not employees;
- the drivers and delivery people (or some of them) are employees of Uber; or
- that for all drivers and delivery peoples, their employment status cannot be determined in common but will require individual trials.
The Class is claiming damages in respect of Uber’s failure to pay the Class minimum wage, vacation pay, public holiday and premium pay, termination pay, and potentially overtime pay. The Class is also seeking damages in respect of their out-of-pocket expenses incurred while providing transportation and delivery services with the Uber Apps, any adverse tax liability incurred as a result of their misclassification, and unpaid Canada Pension Plan and Employment Insurance Act contributions. The Court has held that the amount of damages owing, if any, will depend on individual assessments, which could take place after the Common Issues Trial.
The Court has not taken any position as to the truth or merits of the claims asserted by Mr. Heller and Ms. Garcia or of Uber’s defences to those claims. The allegations made by Mr. Heller and Ms. Garcia have not yet been proven in court.
3. THE CLASS
By court order, the Class in this lawsuit is defined as:
Any person who, since January 1, 2012, in Ontario used an Uber app to transport passengers and/or to provide delivery services pursuant to a Service Agreement with Uber B.V., Rasier Operations B.V., and/or Portier B.V.
“Service Agreement” means: an agreement with Uber B.V., Rasier Operations B.V., and/or Portier B.V. to provide any or all of the following services using the Uber App: Uber Eats, UberX, UberXL, Uber Comfort, Uber Black, Uber SELECT, Uber Black SUV, Uber Premier, Uber Premier SUV, Uber Taxi, Uber WAV, Uber Assist, Uber Pool, Uber Green, and Uber Connect.
If you fall within the Class definition, you may be automatically included in the class action. To opt out of this class action, you must either complete an “opt out” form on www.uberlawsuit.ca or send a written request to opt out by email to info@uberlawsuit.ca or to the address listed below, postmarked no later than: May 28, 2024.
Mail:
Samfiru Tumarkin LLP
RE: Uber Driver Misclassification Class Action
350 Bay Street, 10th Floor
Toronto, ON M5H 2S6
Your written request to opt out must include: your name, address, email address, phone number, the date of your request, and a statement that you wish to opt-out of the Uber class action.
Important Note to Drivers and Delivery Persons using the Uber App as of August 26, 2020:
The Court has ordered that the Class may include drivers and delivery people who received and accepted amended terms of service dated August 26, 2020. These amended terms of service contain an Arbitration Provision that prohibits drivers and delivery people from participating in or recovering from any collective proceeding, including a class action, unless they opted out of the Arbitration Provision. Accordingly, if you accepted the August 26, 2020 terms of service and do not wish to participate in this class action, you should still opt out according to the opt-out procedures described above.
If you accepted the August 26, 2020 terms of service, and you and wish to participate in this class action, you may be met with a defence that you have waived your right to pursue claims for compensation from Uber because you accepted the August 26, 2020 terms of service. If the Common Issues Trial (or any subsequent appeal) is determined in favour of the Class, a determination of the merits of this defence will occur at individual issues trials following the Common Issues Trial. These individual issues trials may thus include a determination of whether you are bound by the Arbitration Provision and, if so, you may not be permitted to obtain any relief from the Defendants.
4. OPTING OUT OF THE CLASS ACTION
The deadline for opting out of the class action and thus to exclude yourself is May 28, 2024. If your written request to opt out is not received by that date you may remain a Class member. If you wish to remain a Class member, you do not have to do anything at this stage.
If you opt out, you will not be eligible to participate in the class proceeding (including any settlement or court award, assuming success on the part of the Plaintiffs) and you will not be bound by any court orders issued in the class action, whether favourable or not. You will, however, be able to bring litigation against the Defendants on your own in respect of the claims discussed in this notice (subject to any defences the Defendants might have).
If you do not opt out, you may be able to participate in the class action (including any settlement or court award, if the Plaintiffs are successful). Your participation in the class action may depend upon whether or not you agreed to the August 26, 2020 Arbitration Provision and whether a court or arbitrator concludes that the Arbitration Provision is valid. If you are able to participate in the class action, you will be bound by any court orders issued in the class action, whether favourable or not. However, you may not be able to bring litigation against the Defendants on your own in respect of the same claims discussed in this notice (regardless of the final outcome of the lawsuit).
5. FINANCIAL CONSEQUENCES
If the Common Issues Trial is determined in favour of the Class, or at any subsequent appeal, some class members might be entitled to receive financial compensation from the Defendants in further individual damages proceedings. In that event, participation of individual drivers and delivery people will be required to determine individual financial compensation, if any. Drivers and delivery people who accepted the August 26, 2020 terms of service may be met with a defence at the individual damages proceedings that they have waived their right to pursue claims for compensation from Uber. In addition, in the event that the Common Issues Trial is determined in favour of the Class, the Court will also determine the amount of legal fees and disbursements for Class Counsel.
If the Common Issues Trial is determined in favour of the Defendants, drivers and delivery people who participate in the class action will not receive any compensation from this lawsuit.
You should keep copies of all relevant documents and evidence relating to transportation or delivery services you provided using the Uber App or any other transportation or delivery apps. Such documents and evidence might include copies of your agreements with any transportation or delivery app companies, information about when you provided transportation or delivery services through an app, pay statements issued to you by any transportation or delivery app companies, any tax documents relevant to the transportation or delivery services you provided through an app, and receipts for out-of-pocket expenses incurred by you while providing transportation and delivery services through an app.
No drivers or delivery people, other than the Representative Plaintiffs, will be liable for costs with respect to the determination of the common issues. Drivers and delivery people may be liable for costs with respect to the determination of their own individual claims depending on the outcome of that individual determination.
Class Counsel have entered into a contingency fee agreement with the Representative Plaintiffs with respect to legal fees and disbursements. The agreement provides that Class Counsel will only be paid in the event of success in the case (i.e., a settlement or court award). The agreement provides that the Class will pay to Class Counsel a percentage fee of 30% out of the total amounts recovered by the Class from the Defendants plus disbursements and applicable taxes. Class Counsel’s fees and disbursements must be approved by the Court.
The Court has approved a litigation funding arrangement in this case, which provides that a third-party funder will advance the costs of disbursements up to a maximum amount and pay any adverse costs awards against the Plaintiffs up to a maximum amount. In exchange for providing funding, if the plaintiffs win or settle, the funder will be reimbursed for the payments advanced and receive 8-10% of the proceeds awarded to the Class, plus a funder administration fee.
6. ADDITIONAL INFORMATION
Wright Henry LLP and Samfiru Tumarkin LLP are Class Counsel in this action.
The certification order and other information are available online at: www.uberlawsuit.ca
For further information, please contact Wright Henry LLP and Samfiru Tumarkin LLP at the coordinates listed below:
Mail:
Samfiru Tumarkin LLP
RE: Uber Driver Misclassification Class Action
350 Bay Street, 10th Floor
Toronto, ON M5H 2S6
Phone: 1-855-821-5900
Email: info@uberlawsuit.ca
To ensure that you receive future notices regarding this class action, including notices about any settlement that might be achieved in the class action, please register online at:
This notice has been approved by order of the Ontario Superior Court of Justice. The court offices will be unable to answer any questions about the matters in this notice.