Court File and Parties

Court File No.: CV-17-567946-00CP Date: 2022-03-31 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

Counsel: 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. 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. The Plaintiffs submit that Uber has breached its employment contracts with the putative Class Members and contravened Ontario’s Employment Standards Act, 2000.

[2] The action was certified on August 12, 2021. See Heller v. Uber Technologies Inc, 2021 ONSC 5518.

[3] In an Omnibus Motion and cross-motion, there are three disputes between the parties.

[4] First, there is a dispute between the parties about the content of the Certification Order.

[5] 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.

[6] Third, there is a dispute about the Notice of Certification to be disseminated to the Class Members and about the Notice Plan.

[7] In these Reasons for Decision, I address the third of these disputes, the dispute about the Notice of Certification and the Notice Plan.

B. The Dispute about the Notice and the Notice Plan

1. The Plaintiffs drafted a Notice and a Notice Plan to which Uber responded with alterations. The Plaintiffs’ version of the Notice Plan and Uber’s version of the Notice Plan are set out below.

Plaintiffs’ Notice Plan

Appendix “A” NOTICE PLAN Pursuant to s. 17 of the Class Proceedings Act notice of certification shall be distributed within 60 days of the date of the Court’s order approving this Notice Plan as follows:

1. Samfiru Tumarkin LLP and Wright Henry LLP (“Class Counsel”) shall deliver the Short Form Notice attached as Appendix “B” by email to the last known email address of all Class Members based on Uber’s records;
2. Class Counsel shall publish the Short-Form Notice attached as Appendix “B” once in the Toronto Star at the Plaintiffs’ expense. The Short-Form Notice attached as Appendix “B” may also be published at the Defendants’ expense in the Toronto Sun, Ottawa Sun, National Post, Kingston Whig-Standard, London Free Press, Windsor Star, Sing Tao, Ming Pao, Urdu Times, Parvasi, Weekly Voice, and Punjab Post.
3. The Defendants, at their expense, shall deliver the Short-Form Notice (In-App) attached as Appendix “C” as a notification through the Uber App; and
4. Class Counsel shall publish the Long-Form Notice attached as Appendix “D” on the Samfiru Tumarkin LLP web site and at www.uberlawsuit.ca in English, French, Arabic, Mandarin, Hindi, Cantonese, Punjabi, Tagalog, Urdu, Korean, Tamil, and Spanish.
5. Class Counsel shall publish the “opt-out” form attached as Appendix “E” on the Samfiru Tumarkin LLP web site and at www.uberlawsuit.ca.
6. Except as otherwise set out herein, the costs and fees of disseminating the Notice of Certification shall be payable by the Plaintiffs.

Uber’s Notice Plan

Appendix “A” NOTICE PLAN Pursuant to s. 17 of the Class Proceedings Act notice of certification shall be distributed within 60 days of the date of the Court’s order approving this Notice Plan as follows:

1. Samfiru Tumarkin LLP and Wright Henry LLP (“Class Counsel”) shall deliver the Short-Form Notice attached as Appendix “B” by email to the last known email address of all Class Members based on Uber’s records;
2. Class Counsel shall publish the Short-Form Notice attached as Appendix “B” once, in the Toronto Star, Toronto Sun, Ottawa Sun, National Post, Kingston Whig-Standard, London Free Press, Windsor Star, Sing Tao, Ming Pao, Urdu Times, Parvasi, Weekly Voice, and Punjab Post. The fees associated with publishing the Short-Form Notice attached as Appendix “B” will be split equally between the parties.
3. The Defendants, at their expense, shall deliver the Short-Form Notice (In-App) attached as Appendix “C” as a notification through the Uber App; and
4. Class Counsel shall publish the Long-Form Notice attached as Appendix “D” on the Samfiru Tumarkin LLP web site and at www.uberlawsuit.ca in English, French, Arabic, Mandarin, Hindi, Cantonese, Punjabi, Tagalog, Urdu, Korean, Tamil, and Spanish.
5. Class Counsel shall publish the “opt-out” form attached as Appendix “E” on the Samfiru Tumarkin LLP web site and at www.uberlawsuit.ca.
6. Class Counsel shall serve on the Defendants an affidavit setting out the names of individuals who have opted-out, their phone numbers, and email addresses within 30 days of the opt-out deadline set by the Court.
7. Except as otherwise set out herein, the costs and fees of disseminating the Notice of Certification shall be payable by the Plaintiffs.

2. The Plaintiffs do not oppose Uber’s proposed changes to the Notice Plan and Notice materials with respect to the following: (a) typographical changes at paragraphs 4 and 5 of the Notice Plan; (b) at paragraph 6 of the Notice Plan, the proposed affidavit providing information about Drivers who have opted out; (c) typographical changes to the Short-Form Notice, the Short-Form Notice (In-App), and the Long-Form Notice; and (d) additional language clarifying the terms of the litigation funding arrangement in the Short-Form Notice, the Short Form-Notice (In-App), and the Long-Form Notice.

[8] The parties disagree on three matters; namely:

1. The Plaintiffs seek to have the Notice published in one newspaper, but the Defendants submit that the Notice should be published in 13 newspapers.
2. The Parties disagree about the nature of the posting of the Notice through the Uber App.
3. The Defendants seek to have the Notice include commentary to which the Plaintiffs object.

[9] With respect to the commentary, Uber proposes to insert the following underlined language into the Short-Form and Long-Form Notice:

The class action is seeking a decision from the Ontario Superior Court of Justice (“the Court”) that confirms that the drivers and delivery people who participate in the class action are employees and entitled to be paid for minimum wage and overtime, among other unpaid wages and benefits.

Uber has defended the class action and denies all of the plaintiffs’ allegations. Uber’s response to the plaintiffs’ claims is that drivers and delivery people are not employees of Uber. Instead, Uber contends that drivers and delivery people are customers of Uber who use the Uber Apps to earn money by providing transportation and delivery services to their customers. Uber's position is that drivers and delivery people are not employees because they have the flexibility to use the Uber Apps when and where they choose, without shifts or assignments; can decline requests; can use any other ridesharing or food delivery apps, or engage in any other occupation or business; have no manager; choose their own method of transportation; and do not wear uniforms. Uber also takes the position that drivers and delivery peoples’ employment status cannot be determined in common because the drivers and delivery people do not all have the same experience and relationship with Uber.

If the class is successful, drivers and delivery people would be classified as employees of Uber and would be treated as if they were “working for Uber” when using the Uber Apps.

C. Factual Background

[10] For the discussion and analysis that follows, it shall be necessary to keep in mind what I said at paragraphs 1-10 and 192-195 of my certification decision, which was as follows:

A. Introduction and Overview

1. Pursuant to the Class Proceedings Act, 1992, David Heller, the Plaintiff, and Felicia Garcia, a putative Class Member who is to be joined as co-Plaintiff, move for certification of their action as a class action. The Plaintiffs’ 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 seek to be Representative Plaintiffs on behalf of 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. The Plaintiffs submit that Uber has breached its employment contracts with the putative Class Members and contravened Ontario’s Employment Standards Act, 2000. They also plead that Uber is liable for unjust enrichment and negligence.

2. The Plaintiffs describe their proposed class action, which has had a visit to the Supreme Court of Canada about the court’s jurisdiction to decide the dispute, Uber Technologies Inc. v. Heller, 2020 SCC 16, as a conventional misclassification of employment class action. There is, however, nothing routine about it, and it is misdescribed as a misclassification of employment status class action. The proposed class action is better described as a compound classification of employment status class action. The Plaintiffs’ proposed class action raises unique problems of how class actions should adopt to what has been called the “sharing economy” which is animated by information, computer, and Internet technology.

3. In a conventional misclassification of employment status class action, there will be no controversy about whether there is an employer, and the typical issue will be whether the Class Members are working as employees or working for the employer as independent contractors. In either case, the class members will be “working for” the defendant in some capacity. However, in this compound classification of employment status class action, Uber denies that it is the putative Class Members’ employer. This quandary about not only the legal status of the putative Class Members but also of the defendant Uber adds complexities about the commonality of the common issues of fact and law that are the bread-and-butter prerequisite of a certifiable class action.

4. Amongst the proposed class action’s unique features is the unusual circumstance that the proposed class action pits some putative Class Members against others. Both sides called putative Class Members to support their cases. Nine putative Class Members testified. The evidence on the certification motion reveals that the putative Class Members - the persons that the Plaintiffs wish to represent - are divided into two opposing camps and that there also is a third camp of putative Class Members whose members do not yet know which camp to join or who may be indifferent to joining either camp.

5. In the immediate case, the first camp of putative Class Members are persons who would want to be classified as employees “working for Uber.” This camp of putative Class Members would be much assisted in their aspirations for access to justice, if the Plaintiffs were appointed their Representative Plaintiffs, because the fundamental allegation in the proposed class action is the allegation that Uber is the employer of the putative Class Members. If Uber is indeed the first camp’s employer, these putative Class Members would be entitled to the benefits of Ontario’s Employment Standards Act, 2000 and of federal employment protection legislation such as the Canada Pension Plan, and the Employment Insurance Act.

6. In the immediate case, however, the second camp of putative Class Members are persons who do not want to be “working for Uber”. These persons see themselves as “working for themselves.” These putative Class Members do not want to work for Uber as employees or even as independent contractors, although the latter status would be preferable to the former. It is already apparent that this second camp of persons who are using Uber’s technology should opt-out of the proposed class action because they would not wish to disturb the current contractual relationship they have with Uber. They certainly do not wish to be bound by a decision at a common issues trial that they are “working for Uber”. For this second camp of persons, a class proceeding is not access to justice for breach of contract but rather it is interference with their freedom to contract.

7. In the immediate case, the discussion will reveal that there are complexities associated with the commonality of the proposed common issues, which is desired by the first camp of putative Class Members, or the idiosyncrasy of the proposed common issues, which is the position of the second camp of putative Class Members and of the Defendant Uber.

8. In this extraordinary case, the common issues focus on the questions of whether the relationship between Uber and the putative Class Members is that of: (a) service provider and customer; (b) employer and employee; or (c) employer and independent contractor. There is a serious controversy about the commonality or conversely with the idiosyncrasy of the relationship between the parties and this controversy is amplified because the contracts upon which the relationships are based have constantly been changing.

9. In this extraordinary case, the evidentiary record reveals that with numerous Service Agreement amendments, Uber has been striving mightily, but not necessarily successfully: (a) to not be classified as an employer; and also (b) to not have a court decide the Plaintiffs’ proposed class action and rather have the grievances of the putative Class Members referred to arbitrators.

10. This struggle about the court’s jurisdiction led to the parties’ visit to the Supreme Court of Canada, and it continues into this certification motion, and, thus, in addition to seeking certification, the Plaintiffs request that the court rule invalid an Arbitration and Class Action Waiver Clause that Uber introduced into its Service Agreements on August 26, 2020. Uber, however, submits that it took heed of the lessons learned from the Supreme Court’s judgment and the Arbitration and Class Action Waiver Clause is a valid and enforceable arbitration contract and that the putative Class Members who did not opt out of the clause should not be included as Class Members.

Analysis and Discussion: Common Issues Class Criterion

192. […] based on the voluminous evidentiary record that I have reviewed and considered there is some basis in fact for any of the following answers to the common issue questions, including several answers that would be favourable to the putative Class Members and some that would be favourable to Uber; visualize there is some basis in fact for concluding:

a. In some or all Uber Service Agreements, there was no employment or independent contractor relationships between the Uber App users and Uber and the relationship between Uber users and Uber was of a customer and a service provider. b. In some or all of the Uber Service Agreements, the relationship between Uber App users and Uber is that of independent contractor and employer. c. In some or all of the Uber Service Agreements, the relationship between Uber App users and Uber was or is that of employee and employer. d. In all Uber Service Agreements, it will take a case-by-case analysis to determine whether there was an employment or independent (or dependent) contractor relationship but either relationship is possible depending upon the circumstances of the particular case.

193. Notwithstanding Uber’s arguments to the contrary, there is some basis in fact that there is a genuine dispute about whether the Uber App users are working only for themselves in a shared economy with Uber or are working for Uber as an employee or as an independent contractor.

194. It should be noted that whatever the answers to the common issues there would be a quite robust class proceeding in terms of access to justice for either Uber or for the Class Members. If the answer to the common questions was (a) or (b) as set out in paragraph 192, then Uber would be discharged of liability to up to 366,359 Class Members. If the answer to the common questions was (c) or (d), then Uber would be exposed to liability, but the actions would have to proceed to individual assessments of damages because there is no prospect of an aggregate assessment of damages. While in theory, Uber would be exposed to up to 366,359 claims, the take up of individual assessment trials might be quite small because of the attrition of Class Members who for their own idiosyncratic reasons do not want to be working for Uber or whose own idiosyncratic experience is such that they do not have a provable claim that they were working for Uber or no provable breaches of the Employment Standards Act, 2000.

[11] For the discussion and analysis that follows, it shall be necessary to note that the following information is included in the Long Notice - but not the Short Notices - that will be distributed to Class Members; visualize:

If the Class is successful, the existing contractual relationship between Uber and the drivers and delivery people who participate in the class action will be modified. Rather than be classified as customers of Uber or as independent contractors, these drivers and delivery people would be classified as employees of Uber and would be treated as if they were “working for Uber” when using the Uber Apps.

At the Common Issues Trial, the Court could determine one (or a combination of) the following outcomes:

1. the drivers and delivery people (or some of them) are customers of Uber, not employees;
2. the drivers and delivery people (or some of them) are independent contractors, not employees;
3. the drivers and delivery people (or some of them) are employees of Uber; or
4. that for all drivers and delivery people, their employment status cannot be determined in common but will require individual trials.

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. The Court has held that the amount of damages owing, if any, will depend on individual assessments, which could take place after the Common Issues Trial.

The Court has not taken any position as to the truth or merits of the claims asserted by Mr. Heller and Ms. Garcia or of Uber’s defences to those claims. The allegations made by Mr. Heller and Ms. Garcia have not yet been proven in court.

D. The Plaintiffs’ Submissions

[12] The Plaintiffs make three main submissions.

[13] First, they submit that publication in one newspaper, the Toronto Star, is sufficient to ensure robust and effective notice when combined with the direct notice by email and through the Uber App and the general notice provided online at Class Counsel’s web site and www.uberlawsuit.ca. The additional published notices are unnecessary, and therefore investing resources in such broad newspaper publication is unlikely to serve the Class Members’ interests.

[14] Second, they submit that the parties’ legal arguments are irrelevant to the purpose of Notice and should not be included. The information that the Defendants propose be included in the Notice is unnecessary and it is unbalanced not fairly setting out the positions of the parties.

[15] Third, they support distributing Notice through the Uber App provided that Uber ensure that it does not monitor the Drivers’ interactions with the Notice. The Plaintiffs say that they sought confirmation that Uber that it will not track Drivers’ access to any hyperlinks but Uber only confirmed that it “will not look” at whether Class Members click the links. The Plaintiffs say that Uber having access to Class Members use of the hyperlinks would interfere with the Class Members’ lawyer and client relationship with Class Counsel and would be unprecedented.

[16] The Plaintiffs submit that if Uber ensures that it will not monitor access to the hyperlinks then the Notice could be issued with hyperlinks.

E. Uber’s Submissions

[17] Uber submits that the Notice and the Notice Plan should reflect the extraordinary circumstances that: (a) the class action pits some putative Class Members against others; and (b) there is a strong incentive for those who do not want to be in an employment relationship with Uber to opt-out of this class action so to prevent interference with their freedom to contract. Uber submits that these extraordinary circumstances call for a very robust Notice Plan and a detailed and informative Notice that includes an articulation of Uber’s defence.

[18] Uber submits that necessary information for putative Class Members to know that Uber’s legal position is that: (a) putative Class Members are Uber’s customers; (2) putative Class Members are not employees; and (3) the relationship between putative Class Members and Uber cannot be determined in common and will require individual determination.

[19] Uber submits that the immediate case is not a situation where it is unlikely that many Class Members who reside across the whole breadth and width of the province would want to opt out and therefore it is essential that the newspaper notice not be confined to the Toronto Star so that there is a meaningful opportunity to exercise the right to opt-out.

[20] Uber submits that its proposal to distribute the notice in a geographically and demographically diverse set of newspapers and to split the cost is reasonable and appropriate. It submits that many putative Class Members live outside of Toronto and do not read the Toronto Star and many putative Class Members only read newspapers in their native language and thus the Notice Plan should reflect the cultural and geographic diversity of the putative Class Members.

[21] Uber submits that direct notification is insufficient in the immediate case because putative Class Members who have stopped using the App will receive the notice directly only if their email address remains active and monitored.

[22] In response to the Plaintiffs’ concerns about Uber “monitoring” the usage of hyperlinks, Uber says this concern is without foundation. It will not look at the data. Uber says that it will already know who may be a Class Member, because it will receive a list of putative Class Members that opt out. The Plaintiffs’ suggestion to the effect that Uber cannot be trusted is a baseless allegation because Uber is already subject to similar personal privacy protection obligations under the Personal Information Protection and Electronic Documents Act (“PIPEDA”).

F. Statutory Provisions

[23] For the present purposes of resolving the dispute about the Notice and the Notice Plan, the relevant provisions of the Class Proceedings Act, 1992 are sections 8, 9, 12, 17, 20, 21, 22, and which state:

Contents of certification order

8 (1) An order certifying a proceeding as a class proceeding shall, (a) describe the class; (b) state the names of the representative parties; (c) state the nature of the claims or defences asserted on behalf of the class; (d) state the relief sought by or from the class; (e) set out the common issues for the class; and (f) specify the manner in which class members may opt out of the class proceeding and a date after which class members may not opt out.

Subclass protection

(2) […]

Amendment of certification order

(3) The court, on the motion of a party or class member, may amend an order certifying a proceeding as a class proceeding.

Opting out

9 Any member of a class involved in a class proceeding may opt out of the proceeding in the manner and within the time specified in the certification order.

Court may determine conduct of proceeding

12 The court, on its own initiative or on the motion of a party or class member, may make any order it considers appropriate respecting the conduct of a proceeding under this Act to ensure its fair and expeditious determination and, for the purpose, may impose such terms on the parties as it considers appropriate.

Notice of certification

17 (1) Notice of certification of a class proceeding shall be given by the representative party to the class members in accordance with this section.

Court may dispense with notice

(2) The court may dispense with notice if, having regard to the factors set out in subsection (3), the court considers it appropriate to do so.

Order respecting notice

(3) The court shall make an order setting out when and by what means notice shall be given under this section and in so doing shall have regard to, (a) the cost of giving notice; (b) the nature of the relief sought; (c) the size of the individual claims of the class members; (d) the number of class members; (e) the places of residence of class members; and (f) any other relevant matter.

Means of giving notice

(4) The court may, for the purposes of subsection (3), order that notice be given by any of the following means or combination of the following means, and may order that notice be given to different class members by different means:

1. Personally or by mail.
2. By posting, advertising, publishing or leafleting.
3. By individual notice to a sample group within the class.
4. By any electronic means the court considers appropriate.
5. By any means that may be prescribed.
6. By any other means the court considers appropriate.

Contents of notice

(5) Unless the court orders otherwise, notice under this section shall, (a) describe the proceeding, including the names and addresses of the representative parties and the relief sought; (b) state the manner by which and time within which class members may opt out of the proceeding; (c) describe the possible financial consequences of the proceeding to class members; (d) summarize any agreements between representative parties and their solicitors respecting fees and disbursements; (e) indicate whether there is a third-party funding agreement as defined in section 33.1 between the representative plaintiff and a funder and, if so, provide a description of the payment to which the funder is entitled under the agreement; (f) describe any counterclaim being asserted by or against the class, including the relief sought in the counterclaim; (g) state that the judgment, whether favourable or not, will bind all class members who do not opt out of the proceeding; (h) describe the right of any class member to participate in the proceeding; (i) provide contact information for a person or entity to whom class members may direct inquiries about the proceeding; (j) include the prescribed information; and (k) include any other information the court considers appropriate.

Court to consider circumstances

(6) The court shall make such orders under subsections (3), (4) and (5) as are necessary to ensure that the notice given is the best notice that is practicable in the circumstances.

Solicitations of contributions

(7) With leave of the court, notice under this section may include a solicitation of contributions from class members to assist in paying solicitor’s fees and disbursements.

Public Guardian and Trustee

(8) Notice ordered to be given under this section shall be served on the Public Guardian and Trustee if there is a reasonable possibility that the Public Guardian and Trustee is authorized to act on behalf of one or more class members.

Notices, general requirements

Plain language

20 (1) A notice under section 17, 18 or 19 shall be written in a plain language manner.

Bilingual

(2) A notice under section 17, 18 or 19 shall be written in English and in French, unless the court orders otherwise.

Court approval

(3) A notice under section 17, 18 or 19 shall be approved by the court before it is given.

Delivery of notice

21 The court may order a party to deliver, by whatever means are available to the party, the notice required to be given by another party under section 17, 18 or 19, where that is more practical.

Costs of notice

22 (1) The court may make any order it considers appropriate as to the costs of any notice under section 17, 18 or 19, including an order apportioning costs among parties.

Exception, costs of notice of certification

(1.1) Despite subsection (1), the costs of any notice under section 17 may be awarded to the representative plaintiff only in the event of success in the class proceeding, except to the extent the defendant consents to their payment in whole or in part at an earlier time, and, for greater certainty, shall not be ordered to be paid by the defendant at any earlier time in the proceeding absent the defendant’s consent.

Idem

(2) In making an order under subsection (1), the court may have regard to the different interests of a subclass.

Judgment on common issues

27 (1) A judgment on common issues of a class or subclass shall, (a) set out the common issues; (b) name or describe the class or subclass members; (c) state the nature of the claims or defences asserted on behalf of the class or subclass; and (d) specify the relief granted.

Effect of judgment on common issues

(2) A judgment on common issues of a class or subclass does not bind, (a) a person who has opted out of the class proceeding; or (b) a party to the class proceeding in any subsequent proceeding between the party and a person mentioned in clause (a).

Idem

(3) A judgment on common issues of a class or subclass binds every class member who has not opted out of the class proceeding, but only to the extent that the judgment determines common issues that, (a) are set out in the certification order; (b) relate to claims or defences described in the certification order; and (c) relate to relief sought by or from the class or subclass as stated in the certification order.

G. Notice and Notice Plans: General Principles

[24] Notice of the class proceeding being certified and of the right to opt-out is the means chosen by the Legislature to permit a putative Class Member to preserve his or her litigation autonomy during the communal stages of a class action because if the class member does not opt-out, he or she will be bound by the outcome of the class proceedings under the Class Proceedings Act, 1992. The class action judgment is only binding on a Class Member if he or she is given notice of the proceeding and afforded an opportunity to exclude himself or herself from the proceeding. See Silver v. IMAX, 2012 ONSC 1047 at para 56; Currie v. MacDonald’s Restaurant of Canada Ltd. at para. 28 (C.A.); Western Canadian Shopping Centres Inc. v. Dutton, 2001 SCC 46 at para. 49.

[25] Pursuant to s. 17(6) of the Class Proceedings Act, 1992, the court shall make orders about the Notice and the Notice Plan as are necessary to ensure that the notice given is the best notice that is practicable in the particular circumstances of the case. Pursuant to s. 17 (4), the court has the discretion to employ a variety of means to give notice. Pursuant to s. 17 (5), the court has the discretion to order that notice be given to different Class Members by different means. Pursuant to s. 17(2), the court has the discretion to dispense with notice, if the court considers it appropriate to do so.

[26] In supervising and approving the Notice and the Notice Plan, the court exercises a discretionary jurisdiction that takes into account the particular circumstances of the case. See Fantl v. ivari, 2018 ONSC 4443; Markle v. Toronto (City), [2004] O.J. No. 3024 (S.C.J.) at para. 5.

[27] The primary purpose of providing Notice of Certification is to advise the putative Class Members that the action has been certified and its impact on their rights and to give them an opportunity to opt-out if they wish to retain the right to sue the defendant individually. Fantl v. ivari, 2018 ONSC 4443; Canada Post Corp v. Lépine, 2009 SCC 16; McNaughton Automotive Ltd v Co-Operators General Insurance Co (2003), 66 O.R. (3d) 112 (S.C.J.).

[28] The notice must be informative, accurate, balanced, and independent. The Notice must enable the Class Members to make informed decisions about their legal rights and enable them to decide on an informed basis whether to remain in or to opt out of the class litigation and thereby exercise their own litigation autonomy and make their own decisions about suing or not suing the defendant. Fantl v. ivari, 2018 ONSC 4443; Silver v. IMAX, 2012 ONSC 1047 at para 94; Canada Post Corp v. Lépine, 2009 SCC 16; Walls v. Bayer Inc, 2007 MBQB 131, leave to appeal ref’d 2005 MBCA 93, leave to appeal to SCC refused [2005] S.C.C.A. No. 409; McNaughton Automotive Ltd. v. Co-operators General Insurance Co., [2003] O.J. No. 6040 at para. 4 (S.C.J.); 1176560 Ontario Ltd. v. Great Atlantic & Pacific Co. of Canada Ltd. (2002) at para. 76 (S.C.J.), leave to appeal granted, , 64 O.R. (3d) 42 (S.C.J.), aff’d (2004), , 70 O.R. (3d) 182 (Div. Ct.); Mangan v. Inco Ltd. (1998), 38 O.R. (3d) 703 (Gen. Div.).

[29] The wording of the notice must take account the particular context and the situation of the recipients to enable the members of the class to fully understand how the action affects their rights, which may include their rights in rival class proceedings in their home jurisdiction. Canada Post Corp v. Lépine, 2009 SCC 16. Further, the content of the notice should be modulated to limit, to the greatest extent possible, undue panic, alarm, or concern by class members. Hoy v. Medtronic Inc, 2002 BCSC 96; Hoy v Medtronic Inc., 2002 BCSC 1551. Extraneous information unrelated to how a class proceeding will affect class members’ rights should be excluded. Arsalani v. Islamic Republic of Iran, 2021 ONSC 1334; Fehr v Sun Life Assurance Company of Canada, 2021 ONSC 97; Silver v. IMAX, 2012 ONSC 1047.

[30] Generally speaking, a direct mailing to each class member is preferable to advertising or other general forms of notice. Fantl v. ivari, 2018 ONSC 4443; Markle v. Toronto (City) [2004] O.J. No. 3024 (S.C.J.).

[31] The normal order is that the Representative Plaintiff should bear the costs of that notice of certification. Quinte v. Eastwood Mall Inc., 2014 ONSC 249; Walls v. Bayer Inc, 2007 MBQB 131, leave to appeal ref’d 2005 MBCA 93, leave to appeal to SCC refused [2005] S.C.C.A. No. 409; Markle v. Toronto (City), [2004] O.J. No. 3024 at para. 5 (S.C.J.). However, the court has a broad discretion in respect of an order as to the costs of notice, including apportioning costs among parties. Sorenson v. easyhome Ltd., 2012 ONSC 6252; Rowlands v. Durham Regional Health, 2011 ONSC 719; Wilson v. Servier Canada Inc. (2000), 50 O.R. (3d) 219 at para. 142 (S.C.J.), leave to appeal ref’d (2000), , 52 O.R. (3d) 20 (S.C.J.), leave to appeal to S.C.C. ref’d [2001] S.C.C.A. No. 88. With sufficient evidence and in an appropriate case, the court can order the costs of the notice to be shared or it can order the defendant to be wholly responsible for those costs. Boulanger v. Johnson & Johnson Corp., [2007] O.J. No. 2766 (S.C.J.); Farkas v. Sunnybrook and Women's College Health Sciences Centre, [2004] O.J. No. 5134 (S.C.J.); Markle v. Toronto (City) [2004] O.J. No. 3024 (S.C.J.). Wilson v. Servier Canada Inc. (2000) at para. 142, leave to appeal ref’d (2000), , 52 O.R. (3d) 20 (S.C.J.), leave to appeal to S.C.C. ref’d [2001] S.C.C.A. No. 88; Joncas v. Spruce Falls Power & Paper Co., [1999] O.J. No. 2359 (Gen. Div.).

H. Discussion and Analysis

[32] With some qualifications, I agree with Uber’s submissions and not with the Plaintiffs’ submissions.

[33] In the immediate case, the critical issue is whether the Class Members have sufficient information to make a fully informed decision about whether or not to exercise their right to opt out of the Plaintiffs’ certified class action.

[34] In theory, the right to opt out is an integral part of the type or representative action known as a class proceeding. After all, a putative Class Member begins as a stranger to the lawyer and client relationship and may not be interested, willing or able to commence litigation against the defendant. The putative Class Member has no retainer with Class Counsel, no lawyer and client relationship, and typically, the putative Class Member is not even a necessary party to the plaintiff’s cause of action since the plaintiff could have sued the defendant without running the gauntlet of the test for certification of a representative action.

[35] Despite not even knowing the plaintiff, in most class actions, the putative Class Member is quite happy to have the plaintiff be his or her champion in the battle for access to justice. This situation is particularly the case where the putative Class Members’ claim is small or insufficiently large to justify the expense of hiring a lawyer and the exposure to costs if the litigation was unsuccessful.

[36] In most certified class actions, there will be little or no reason for a Class Member to opt out. Even if they do not wish to sue the defendant, there is no reason to opt out because they will have to opt in to the distribution of any settlement or judgment and they can decide not to make a claim. The anecdotal evidence is that opt-outs are very rare and of these rarities many of the opt-outs are inadvertent.

[37] Thus, a Class Member is very rarely harmed if they did not receive Notice of their right to opt-out. A Class Member becomes more interested in having notice of a settlement or of a judgment in order to opt-in to that settlement. Thus, at the certification stage, truth be told, Class Counsel have little incentive to seek a robust notice plan and they are simply fulfilling their duties as prescribed by the Class Proceedings Act, 1992. Class Counsel obviously do not wish there to be many, if any, opt-outs. Typically, however, there are very few opt-outs.

[38] However, there are cases where the right to opt out is not a mere formality for the thesis of class actions. There are cases where the putative Class Member may genuinely not wish to be represented by the Representative Plaintiff and there are cases where the Class Member may genuinely not wish to be a participant in the class action.

[39] Generally speaking, a genuine interest in opting out arises either because: (a) the putative Class Member wishes to preserve his or her litigation autonomy and hire a lawyer of his or her own to sue the defendant; or (b) the putative Class Member may not wish to sue the defendant at all.

[40] In these situations where there is a genuine desire to opt out, the putative Class Member needs to know that he or she will be bound by the determination of the class action, be it settlement or a judgment, unless he or she opts out.

[41] More precisely, the putative Class Member needs to know that pursuant to s. 27(2) of the Class Proceedings Act, 1992, a judgment on the common issues does not bind a person who has opted out of the class proceedings. The Class Member needs to know that pursuant to s. 27(3), a judgment on common issues binds every class member who has not opted out to the extent that the judgment determines common issues that (a) are set out in the certification order; (b) relate to claims or defences described in the certification order; and (c) relate to relief sought by or from the class or subclass as stated in the certification order.

[42] It is because of the provisions of s. 27 of the Class Proceedings Act, 1992 that s. 17 (5) of the Act, which is about the content of the Notice of Certification, prescribes that “unless the court orders otherwise, notice under this section shall, … state that the judgment, whether favourable or not, will bind all class members who do not opt out of the proceeding.”

[43] The case at bar is a case in which the Class Members may wish to exercise their right to opt out, particularly because they may not wish to sue the defendant at all and they may not wish to be bound by a judgment or settlement reached by the Plaintiffs. Some Class Members may wish their individual status to continue. As I explained at paragraphs 1-10 and 192-195 of my certification decision, there may be Class Members that do not wish to be bound by the resolution of the common issues. These Class Members for subjective or financial reasons may not wish to be bound by a court order that made a finding that they are or may be employees of Uber.

[44] The case at bar is thus one of the relatively rare cases where on a class-wide basis, there may be more than a few class members who advertently wish to exercise their right to opt out. The case at bar, thus does call for a robust and effective Notice Plan and a Notice that clearly elucidates the information needed to make an informed decision about whether or not to exercise the right to opt out. I agree with Uber that a province-wide distribution of the Notice sensitive to language and diversity is called for in the circumstances of the immediate case.

[45] Perhaps, ironically, it is typically of more interest to the defendant than it is to Class Counsel to have a robust Notice Plan. For example, in class actions with a national scope, the defendant will wish the notice to be adequate to ensure that it is binding in other jurisdictions in accordance with the conflicts of laws rules associated with the enforcement of foreign judgments. See Silver v. IMAX, 2012 ONSC 1047; Canada Post Corp v. Lépine, 2009 SCC 16; Currie v. MacDonald’s Restaurant of Canada Ltd. (2005), 74 O.R. (3d) 321 (C.A.).

[46] A defendant is particularly interested in a robust notice plan in a case like the one at bar, where it is possible that more than a few putative Class Members will opt out. That said, given the hundreds of thousands of putative Class Members in the immediate case, it is highly unlikely that the number of opt-outs in the immediate case will make the class action economically unviable for Class Counsel.

[47] I, therefore, agree with the Defendants’ proposed Notice Plan, which I find to be the more preferable Notice Plan. Putting to the side for the moment, the issue of the content of the Notice and the issue of whom should be responsible for the expense of this more robust notice plan, the Defendants’ proposal is the better Notice Plan, including its use of Uber’s App to give notice to the putative Class Members.

[48] I see no substance for the Plaintiffs’ concerns about the matter of hyperlinks in Uber’s App being monitored by Uber. I see no interference with the lawyer and client relationship between Class Member and Class Counsel, and the Class Members are protected by the privacy provisions of PIPEDA and by the court’s jurisdiction over the management of the class proceeding pursuant to s. 12 of the Class Proceedings Act, 1992 should there be evidence of retaliatory action by Uber against Class Members because of their participation in the class action.

[49] Turning then to the matter of who should pay for the notices in the 13 newspapers. In my opinion, in the circumstances of the immediate case, the costs of these notices in all the newspapers should be borne (Plaintiffs) 33:67 (Uber).

[50] This brings the discussion to the matter of the content of the Notice.

[51] In short, once again, I agree with Uber’s submissions, and I do not agree with the Plaintiffs’ submissions.

[52] In my opinion, the Class Members will be better served by the additional language proposed by Uber for the Long and Short Notices. I regard this information as necessary for the Class Members to make an informed decision about whether they should opt out. Class Members need to understand that this is not an everything to gain but nothing to risk type of class action. Class Members need this information in order to understand the context of settlement negotiations should that occur.

[53] Moreover, I direct the Plaintiff to add to the Short Notices, the language from the Long Notice that I set out above. It is that information, which the Plaintiffs already placed in the Long Notice, that brings to the attention of the putative Class Members the nature and implications of the dispute and the consequences of participating or not participating in the class proceeding. That additional information needs to be added to the Short Notice.

I. Conclusion

[54] I, therefore, approve of the Notice and the Notice Plan in accordance with these Reasons for Decision.

[55] I direct that the Notice should include the additional common issue question that I certified in the Reasons for Decision released contemporaneously with this decision.

[56] I direct that the approval of the Notice and the Notice Plan is without prejudice to a motion in writing to be brought within thirty days to amend the Short and Long Notices to inform Class Members that if they did not opt out of the Arbitration and Class Action Waiver Clause, then should the court determine at the common issues trial that they are employees and should they wish to pursue claims for compensation from Uber at individual issues trials, then they will be met with a defence that they have waived the right to do so in accordance with the Arbitration and Class Action Waiver Clause. However, the determination of the merits of that defence will be determined at individual issues trials because there may be a counterargument that the Arbitration and Class Action Waiver Clause is void and not enforceable.

[57] I order that the costs of this motion shall be in the cause.

Perell, J. Released: March 31, 2022