Heller v Uber: My modest analysis

In  Heller v. Uber Technologies Inc., 2021 ONSC 5518 Justice Perell certified a class action involving UBER drivers seeking a declaration that they are employees and thus obtain damages for alleged breaches of the ESA as well as unjust enrichment and negligence.

In the end the Judge certified the ESA claims only and denied certification for the unjust enrichment claims and the negligence claims, however these claims seem to largely cover essentially the same issues anyways.

These are what I consider the most interesting aspect of the decision.

1. At para 18 the Judge clearly identifies the three types of workplace relationships that are possible and how the Court determines which category a person falls into. These categories are employee, independent contractor and dependant contractor. For Heller to succeed under the ESA there must be a finding of employment as dependant contractors are not covered by the ESA.
   
2. The major issue in determining whether or not to certify the class has to do with the matter of ”commonality versus idiosyncrasy.” Therefore the bulk of the arguments focused on whether the issues in dispute were common enough that a single ruling would bind the class or whether, as UBER argued, each of these issues requires an individual analysis of the situation of each driver thus a class action would not work.
   
3. This a huge potential class. The Court identified 366,359 putative Class Members, that is drivers who have provided at least one ride or delivery using the UBER app from January 1, 2012 to March 31, 2021.
   
4. Following UBER’s loss in the Supreme Court of Canada which found that their mandatory arbitration clause was illegal, they revised the arbitration clause in various ways so that it purportedly complies with SCC ruling. In essence it allows employees to opt out of the arbitration process but if they do not opt out they are deemed to be in the arbitration regime and as such they waive any right to receive any money or other relief from any class action. In response to this the Plaintiff wanted a ruling that this new arbitration clause with its class action waiver was invalid and in return UBER asked that the class action be limited to those drivers who opted out of the arbitration procedure, a move which the Judge said, “I can safely assume that if I were to amend the class definition, it would gut the class action.”
   
   In the end the Judge decided that either he did not have the authority to determine these issues on a certification motion or that he did not need to as that issue would be decided by the trial judge. He invited the parties to request that this issue be added to the common issues.
   
5. The normal limitation period is 2 years. As Heller started the action on January 22, 2018, UBER proposed that the class should be limited to claims starting on January 22, 2016. Insofar as the limitation period is subject to the discoverability principle which could push that date back, the Judge decided that he would not change the temporal length from 2012 and that any issues about extending the limitation period could be addressed “at individual trials if the action goes that far.”
   
6. The Judge refused to allow for aggregate damages as a common issue. He determined that “individual questions of fact relating to the termination of each Class Member’s damages remain to be determined. UBER’s liability remains to be determined, and the aggregate of its liability cannot be determined without proof by individual Class Members of their individual claims, which some of them may not wish to advance at individual issues trials.”
   
   This last issue is extremely important. If Heller wins the liability argument, but in order to require UBER to actually pay any damages, each of the 366,259 Class Members would have to have  separate mini trials to determine how much they would receive, then the process will probably break down. In a previous class action involving thousands of dismissed Kmart employees seeking wrongful dismissal damages, the entire process broke down, despite many attempts by the Court to devise a system of individual adjudication, because of the difficulty of contacting Class Members and the cost of adjudicating small claims. The net effect of that process was only a few individuals actually got paid any monies and  I suspect that Class Counsel took a bath.
   
   Therefore unless the parties either agree or the Court orders a process of determining a methodology based on UBER’s records, it might be a loss for Heller whether they win the case or not. It strikes me that some of the math could be quite easily determined by simply looking at UBER’s records. For instance the claim for vacation pay under the ESA would presumable be 4% (in some cases for drivers with more than 5 years then 6%) of the earnings. UBER knows exactly what they have paid each driver so that should be easy. Things like overtime would be much more difficult because. this would have to analyzed on a individual basis, presumably based on when the driver booked on the app and when the driver booked off. Even if a driver booked on for 12 hours that does not mean that he or she was working for 12 hours as they are allowed to turn down a certain number of ride requests.
   
   Another contentious issue may be whether every UBER driver is an employee or not, even if the contracts were the same. One can see that a driver who has worked 40 hours a week for 2 years may be more like an employee that a driver who drove one hour back in 2012. Again, either the parties or the Court could define an employee as someone who worked at least a certain number of hours or drove a certain number of kilometres in a defined time frame. My understanding is that UBER has all these types of records in their system already.
   
   This case is far from over. Given the litigation history to date, we can expect many more appeals, motions and trials.
   
   Samfiru Tumarkin and Wright Henry acted for Heller. Tory’s acted for UBER.

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Barry B. Fisher LL.B.

Barry B. Fisher, LL.B., is a mediator and arbitrator of both employment and labour relations matters. He offers three forms of ADR based on clients’ needs: Mediation, Arbitration and Med/Arb. Barry is from the evaluative school of mediation and brings his over 30 years' experience as an employment lawyer and legal author to the dispute. In addition to his knowledge of the legal issues involved in these disputes, he also has a deep understanding of the psychological factors that motivate both employees and employers. By combining these two skills, Barry is able to achieve a settlement rate of over 80% of the disputes that he mediates.

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