Worker classification has become a major source of conflict in Canadian employment law. Most media attention in this regard has been given to classification disputes by gig workers (such as the case of whether Uber drivers are employees or contractors). But even outside of the gig economy, classification-related class actions against businesses of all types have been on the rise.
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.
Misclassification of workers is a significant issue, and it exposes both sides to potential liability. “Deciding” whether to treat a worker as an independent contractor or an employee is not as simple as asking them how they want to be paid; courts and the Canada Revenue Agency will look beyond how the parties characterize the relationship and assess its true nature.