COURT OF APPEAL FOR ONTARIO
DATE: 20230925 DOCKET: COA-23-OM-0230
Zarnett J.A. (Motion Judge)
BETWEEN
Denver Davis Plaintiff (Appellant/Moving Party)
and
Amazon Canada Fulfillment Services, ULC, Amazon.com, Inc. and Amazon.com.ca, Inc. Defendants (Respondents/Responding Parties)
Counsel: Louis Sokolov and Jean-Marc Leclerc, for the moving party David Di Paolo, Nadia Effendi, and Laura M. Wagner, for the responding parties
Heard: September 15, 2023 by video conference
ENDORSEMENT
Background
[1] The moving party is the representative plaintiff in a proposed class action commenced on June 12, 2020 against the responding parties (collectively, “Amazon”). The proposed class consists of approximately 73,000 delivery drivers who during the class period were either retained by Amazon as independent contractors or employed by third party companies known as “Delivery Service Providers”. The gist of the claim is that the delivery drivers were, in fact and law, employees of Amazon, which is therefore liable to them for overtime, holiday pay and other entitlements under provincial employment standards legislation.
[2] On June 19, 2023, the class action judge decided, in one set of reasons [^1], two motions, the results of which have given rise to two appeals currently pending [^2] in different courts.
[3] The class action judge dismissed the plaintiff’s motion to certify the action as a class proceeding (the “certification decision”). The plaintiff has appealed the certification decision to the Divisional Court. Since the proposed class proceeding was commenced before July 8, 2020, it is governed by the version of Ontario’s class proceeding legislation in force at that time: Class Proceedings Act, 1992, S.O. 1992, c 6 (the “CPA”). Under s. 30(1) of the CPA as it appeared prior to July 8, 2020, an appeal from a refusal to grant certification lies to the Divisional Court.
[4] The class action judge also granted a motion by Amazon to stay, pursuant to s. 7 of the Arbitration Act, 1991, S.O. 1991, c. 17, the claims of some members of the proposed class who were parties to agreements that contained arbitration provisions (the “stay decision”). The appeal route in respect of decisions under the Arbitration Act is not governed by the CPA, and although s. 7(6) of the Arbitration Act provides that there is no appeal from such a decision, the plaintiff takes the position that s. 7(6) is not applicable to certain class members because of the terms or governing law of their agreements. Subject to an extension of time to file a notice of appeal, the plaintiff seeks to appeal the stay decision to this court on the basis that it is a final order of a Superior Court judge from which an appeal lies to the Court of Appeal under s. 6(1) of the Courts of Justice Act, R.S.O. 1990, c. C.43 (the “CJA”).
This Motion
[5] By this motion, the plaintiff seeks (i) an order extending the time for him to deliver his notice of appeal from the stay decision, and (ii) an order under ss. 6(2) and (3) of the CJA transferring, to this court, the appeal from the certification decision that is currently pending in the Divisional Court and combining it with the appeal from the stay decision. Amazon consents, on terms, to the first request and opposes the second.
Extension of Time to Appeal the Stay Decision
[6] Amazon consents to the extension of time to appeal the stay decision, without prejudice to its position that this court is without jurisdiction to hear all or parts of that appeal and to its arguments on the merits of the appeal. I am satisfied that it is in the interests of justice to extend the time in accordance with Amazon’s consent. Amazon’s reservations of rights go without saying, but I see no harm in setting them out.
Transfer of the Certification Decision Appeal and Combining the Appeals
(i) Whether a Transfer Will be Ordered Involves an Exercise of Discretion Animated by Factors Relevant to the Administration of Justice
[7] Sections 6(2) and (3) of the CJA provide:
(2) The Court of Appeal has jurisdiction to hear and determine an appeal that lies to the Divisional Court or the Superior Court of Justice if an appeal in the same proceeding lies to and is taken to the Court of Appeal.
(3) The Court of Appeal may, on motion, transfer an appeal that has already been commenced in the Divisional Court or the Superior Court of Justice to the Court of Appeal for the purpose of subsection (2).
[8] The fact that the one appeal lies to this court and another to the Divisional Court, and that both are in the same proceeding, are necessary but not sufficient conditions to make an order for transfer. Such an order is discretionary and may be refused even if the parties consent to it. The overriding consideration is whether separate appeals in different courts, or combining them in this court, better comports with the administration of justice. In Cavanaugh v. Grenville Christian College, 2013 ONCA 139, 360 D.L.R. (4th) 670, at para. 87, this court stated:
The jurisdiction to join appeals in s. 6(2) is, however, discretionary and not mandatory. There will be cases when factors relevant to the administration of justice are sufficiently strong to override the wishes of the parties to the appeal and any efficiencies achieved by joinder.
[9] Relevant factors to whether joinder is appropriate include the risk of inconsistent results, the extent of overlap in the matters to be addressed in the two appeals, and whether the different issues in the two appeals contraindicates joinder: Cavanaugh, at paras. 86 and 88-92.
(ii) Discussion
[10] In this case, the class action judge heard the plaintiff’s certification motion and Amazon’s motion to stay together and decided both in one set of reasons. He was careful, at various points in his reasons, to outline the effect decisions he could or would reach in one had on the other [^3]. There was good reason for him to do so.
[11] First, as the class action judge stated, Amazon’s motion to stay was not separate from the issue of certification but was part of its resistance to it. He said:
“Amazon has a two-pronged attack to resist the certification…First, Amazon moves to have the proposed class action stayed in favour of arbitration for the 16,000 Delivery Partners (the “DPs”) and for at least 21,000 of the 57,000 Delivery Associates (the “DAs”) who have arbitration provisions in their work contracts…Second, Amazon submits that none of the certification criteria are satisfied, and therefore, the certification motion should be dismissed”.
Elsewhere in his reasons, he noted that the effect of his finding that arbitration agreements were valid was the equivalent of a finding that those who had such agreements could not be class members.
[12] Second, it was only because certification of a class proceeding was under consideration that the court could even entertain whether claims of delivery drivers who had arbitration agreements should be stayed in favour of arbitration. The plaintiff, Mr. Davis, was not a party to an arbitration agreement, and Amazon did not move to stay his claim in favour of arbitration [^4]. Amazon’s argument that claims of potential class members who did have arbitration agreements should be stayed, was implicitly contingent on their claims being considered for inclusion in a class proceeding, something that would occur only if the action were certified as a class proceeding. Their claims were not otherwise before the court.
[13] In my view, these same considerations are relevant to the administration of justice and militate strongly in favour of the appeals being combined in the same court, so that they can be managed, sequenced, considered, and decided taking into account and specifying the effect a decision in one may have on the other.
[14] I do not, in this case, consider joinder to be contraindicated by the existence of different issues in the two appeals, given the underlying connection between them. This is not a case where the Divisional Court appeal raises certification-related issues while the appeal in this court “has nothing to do with issues unique to certification” such that joining the appeals would undermine the legislature’s choice of appellate forum: Cavanaugh, at para. 92. As noted, the appeal of the stay decision goes directly to who may be class members and is completely premised on certification being under consideration. Unlike the situation in Cavanaugh, in this case the legislative choice as to appropriate appellate forum is a product of both the CPA and the provisions of the CJA which provide for appeals to be transferred to, and combined in, this court [^5].
Conclusion
[15] The time for delivery of a notice of appeal from the stay decision is extended to September 30, 2023, in accordance with paragraph 6 hereof. The appeal pending in the Divisional Court from the certification decision is transferred to this court and combined with the appeal from the stay decision, pursuant to ss. 6(2) and (3) of the CJA.
[16] In accordance with the agreement of the parties, Amazon shall pay costs of this motion to the plaintiff in the sum of $5,000, inclusive of disbursements and applicable taxes.
“B. Zarnett J.A.”
Footnotes
[^1]: Davis v. Amazon Canada Fulfillment Services, ULC, 2023 ONSC 3665. [^2]: Subject to the extension of time for the appeal to this court referred to below. [^3]: For example, the class action judge stated, at para. 8: “For the reasons that follow, I stay the action against Amazon as an employer or as a co-employer for the DAs that have signed arbitration agreements. Had I not stayed the action, I would have conditionally certified it as a class action for the DPs but not for the DA class members. The conditions would have been the appointment of a representative plaintiff and the amendment of the class definition. In the DP action, I would not have certified aggregate damages or punitive damages as a common issue. I would not have certified the claims for breach of a duty of good faith, unjust enrichment, or negligence”. And he said, at paras. 129-130: “Although the putative Class members with valid arbitration agreements cannot be class members, the above conclusion that the action on behalf of the DPs and the DAs governed by DSP 2.0 is stayed does not dispose of the certification motion…[t]here is the likelihood of an appeal of my stay decision, and there are approximately 18,000 of the 36,000 DAs that are governed under DSP 1.0 who did not sign an arbitration provision. I shall, therefore, proceed to decide the certification motion on the assumption that there is no stay order”. [^4]: In this respect this case is different from Heller v. Uber Technologies Inc, 2018 ONSC 718, 421 D.L.R. (4th) 343, rev’d Uber Technologies Inc. v. Heller, 2019 ONCA 1, 145 O.R. (3d) 81, aff’d, 2020 SCC 16, [2020] 2 S.C.R. 118. Mr. Heller, the representative plaintiff in a proposed class proceeding, had his own arbitration agreement, and it was that agreement that was ultimately determined to be unenforceable. [^5]: Although not applicable in this case, the CPA now provides that appeals from certification decisions lie to the court of appeal: See CPA, 2020, c. 11, Sched. 4, s.27 (1), s. 30 (1).