Sarah E. Whitmore

The plaintiffs in a certified class action against Uber sought leave to amend their statement of claim and add a new common issue challenging the validity of Uber's amended arbitration clause and class action waiver.

The court dismissed the motion, finding it to be an abuse of process because the plaintiffs were attempting to re-litigate the validity of the arbitration clause for the fourth time.

Although the court found the newly pleaded cause of action was not statute-barred and satisfied the cause of action criterion, it held that the proposed common issue failed the common issues, preferable procedure, and representative plaintiff criteria because it presupposed an employment relationship that had not yet been determined at the common issues trial.

The appellants sought to certify a class action claiming unpaid overtime on behalf of Investment Advisors and Associate Investment Advisors employed by the respondents.

The motion judge and Divisional Court dismissed the certification motion, finding that eligibility for overtime pay could not be determined as a common issue because it required an individual assessment of each employee's duties, autonomy, and managerial responsibilities.

The Court of Appeal dismissed the appeal, holding that there was no material misapprehension of evidence and that the lower courts correctly applied the legal principles governing the common issue requirement under s. 5(1)(c) of the Class Proceedings Act, 1992.