COURT FILE NO.: CV-17-567946-00CP
DATE: 20220331
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
DAVID HELLER
Plaintiff
- and –
UBER TECHNOLOGIES INC., UBER CANADA INC., UBER B.V., RASIER OPERATIONS B.V. and UBER PORTIER B.V.
Defendants
Michael D. Wright, Danielle E. Stampley, Lior Samfiru and Samara Belitzky for the Plaintiffs
Linda M. Plumpton, Lisa Talbot, Sarah Whitmore, Davida Shiff, and Alex Bogach for the Defendants
Proceeding under the Class Proceedings Act, 1992
HEARD: In writing
PERELL, J.
REASONS FOR DECISION
A. Introduction
[1] This is a certified class proceeding under the Class Proceedings Act, 1992.[^1] David Heller and Felicia Garcia are the Representative Plaintiffs. Their action is against Uber Technologies Inc., Uber Canada Inc., Uber B.V., Rasier Operations B.V., and Uber Portier B.V. (collectively referred to as “Uber”). The Plaintiffs represent a class of persons who have entered into Service Agreements with Uber to use software applications (“Uber Apps”) developed and operated by Uber to provide rider transportation and food delivery services.
[2] The Plaintiffs submit that Uber has breached its employment contracts with the putative Class Members and contravened Ontario’s Employment Standards Act, 2000.[^2]
[3] The action was certified on August 12, 2021.[^3]
[4] In an Omnibus Motion and cross-motion, there are three disputes between the parties.
[5] First, there is a dispute between the parties about the content of the Certification Order.
[6] Second, there is a dispute between the parties about whether two questions, one proposed by the Plaintiffs and the other proposed by Uber, should be added to the list of common issues.
[7] Third, there is a dispute about the Notice of Certification to be disseminated to the Class Members and about the Notice Plan.
[8] In these Reasons for Decision, I address the first of these disputes.
B. Meta Dispute: One or Two Orders?
[9] With three more or less overlapping disputes before the court, the parties had a meta dispute about how many orders should be taken out once the court resolves the three disputes.
[10] Uber proposed that there be an Omnibus Order. The Plaintiffs, however, objected because they submit that an Omnibus Order will cause confusion with respect to the timelines for appeals. Uber then withdrew its proposal, and it agreed that there could be two separate Orders.
[11] I shall, however, be issuing three Orders.
[12] Concurrent with these Reasons for Decision, I shall be releasing Reasons for Decision addressing the other two disputes between the parties. In my opinion, there should be three separate Orders taken out for these separate Reasons for Decision.
[13] It’s above my pay grade to resolve any disputes about the timeline for appeals from my Orders.
C. The First Dispute
[14] The dispute between the parties about the content of the Certification Order is a very-very narrow controversy of the piffle category.
[15] The piffle concerns Uber’s request that the phrase “to be calculated and assessed on an individual basis” be added to paragraph 7 of the Certification Order.
[16] Visualize, if Uber’s request were granted, paragraph 7 would read:
- THIS COURT DECLARES that the relief sought by the Class is:
(a) general and special damages in respect of the Defendants’ alleged breaches of the ESA [Employment Standards Act, 2000] and breach of contract, including breach of the contractual duty of good faith, to be calculated and assessed on an individual basis;
(b) a declaration that the Class Members are employees of the Defendants for the purposes of the ESA;
(c) a declaration that the Defendants are operating as a common;
(d) a declaration that the Defendants:
(i) violated the ESA;
(ii) breached the Class Members' contracts of employment; and
(iii) breached their contractual duty of good faith.
D. Discussion and Analysis
[17] With due respect to the parties’ elaborate arguments, which totally miss the simple point that the phrase proposed by Uber provides true and helpful information to the putative Class Members, the Plaintiffs’ objection to the inclusion of the phrase is without merit.
[18] In this particular class action, if the Representative Plaintiffs are successful at the common issues trial, there will inevitably be individual issues trials of some sort to calculate for the Class Members: (a) the benefits to which he or she is entitled under the Employment Standards Act, 2002; and (b) the Class Member’s idiosyncratic damages for not being treated as an employee.
[19] As noted in the Plaintiffs’ Statement of Claim and in its draft Notice to Class Members:
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.
[20] The Class Members are entitled to know that the Representative Plaintiffs’ success, if any, at the common issues trial is not the end of the journey to access to justice.
[21] One would have thought that Class Counsel would wish to convey this message early in the voyage to access to justice because it is always wise to control the expectations of one’s clients and the early dissemination of this information may later facilitate communicating to the Class Members should there be productive settlement discussions, in which the risk associated with individual issues assessments would undoubtedly be a factor in the settlement calculus.
[22] Conveying the information that there may be individual issues assessments was appropriate information to be included in the Certification Order.
E. Conclusion
[23] I, therefore, conclude that the Certification Order should include in paragraph 7 the phrase: “to be calculated and assessed on an individual basis.”
[24] I mention that the Certification Order should be drafted in accordance with my Reasons for Decision on the Certification Motion. The Certification Order should not include the additional question that I shall be certifying in one the Reasons for Decision being contemporaneously released. A separate Order amending the Certification Order for the new question should be taken out.
[25] The costs of this motion shall be in the cause.
Perell, J.
Released: March 31, 2022
COURT FILE NO.: CV-17-567946-00CP
DATE: 20220331
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
DAVID HELLER
Plaintiff
- and –
UBER TECHNOLOGIES INC., UBER CANADA INC., UBER B.V., RASIER OPERATIONS B.V. and UBER PORTIER B.V.
Defendants
REASONS FOR DECISION
PERELL J.
Released: March 31, 2022
[^1]: S.O. 1992, c. 6.
[^2]: S.O. 2000, c. 41.
[^3]: Heller v Uber Technologies Inc, 2021 ONSC 5518.