Court File and Parties

COURT FILE NO.: CV-17-567946-00CP DATE: 2023-03-27

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

DAVID HELLER and FELICIA GARCIA Plaintiffs

• and –

UBER TECHNOLOGIES INC., UBER CANADA INC., UBER B.V., RASIER OPERATIONS B.V. and UBER PORTIER B.V. Defendants

Counsel: Michael D. Wright, for the Plaintiffs Linda M. Plumpton and Sarah E. Whitmore, for the Defendants

Proceeding under the Class Proceedings Act, 1992

HEARD: March 7, 2023

REASONS FOR DECISION

PERELL, J.

“It's Deja Vu All Over Again” [Yogi Berra]

You must not put new wine in old bottles; even more so, you must not in a legal sense attempt to put the same old wine in the same old bottles (even if there has been an attempt to change the superficial appearance of that wine and those bottles). [Justice Farley[^1]]

A. Introduction

[1] This is a certified class proceeding under the Class Proceedings Act, 1992[^2] with a class size of approximately 370,000 Class Members. Now into its sixth year, David Heller commenced the action on January 19, 2017. Mr. 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”).

[2] 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.[^3] Uber denies being the employer.

[3] It needs to be emphasized that this certified class proceeding is a very complex employment law class action. Not only must the court determine whether the Employment Standards Act, 2000 has been breached, but the court must also determine whether the Act even applies to the relationship between the Class Members and Uber. An employment relationship is a pleaded fact but not a proven allegation of the Plaintiffs.

[4] After an excursion that took the action to the Supreme Court of Canada about Uber’s Arbitration Clause in its standard form contracts, the action was certified on August 12, 2021.[^4] The Plaintiffs now seek leave to deliver an Amended Fresh as Amended Statement of Claim to have the following question certified as an additional common issue:

Are the August 26, 2020 amendments to the Class Members’ Service Agreements, which inserted a Class Action Waiver and Arbitration Clause, void as a matter of law because the amendments: (a) are contrary to the Employment Standards Act, 2000; (b) contravene the Class Proceedings Act, 1992; (c) are contrary to public policy; (d) lack consideration; and/or (e) do not apply retroactively?

[5] To understand what follows in this decision, it shall be important to note that the Plaintiffs failed to have the “Class Action Waiver and Arbitration Clause,” which is at the core of the motion now before the court, declared void at the certification motion and also that the Plaintiffs failed a year ago to have the following question certified as a common issue.[^5]

Is the Class Action Waiver void because it: (a) is contrary to the Employment Standards Act, 2000; (b) contravenes the Class Proceedings Act, 1992; (c) is contrary to public policy; and/or (d) lacks consideration?

[6] Further, to understand what follows in this decision it is important to note that notwithstanding the previous outcomes about the arbitration provision in the Service Agreements, the Plaintiffs for the fourth time in the motion now before this court seek to challenge the validity of the submission to arbitration and to have this challenge decided as an aspect of the common issues trial.

[7] Uber’s response to the persistent Plaintiffs’ motion to add a common issue about the Class Action Waiver and Arbitration Clause is to submit that the motion should be dismissed for the following seven reasons: (a) the motion is an abuse of process; (b) the amended pleading seeks substantive relief, but the claim is statute-barred under the Limitations Act, 2002;[^6] and, in any event, (c) the proposed common issue does not satisfy the cause of action criterion for certification; (d) the proposed common issue does not satisfy the common issues criterion for certification; (e) the proposed common issue does not satisfy the preferable procedure criterion for certification; and (f) the proposed common issue does not satisfy the representative plaintiff criterion for certification.

[8] For the reasons that follow, I conclude that: (a) the Plaintiffs’ motion is an abuse of process; (b) the amended pleading is not statute-barred under the Limitations Act, 2002; (c) the proposed common issue satisfies the cause of action criterion for certification; (d) the proposed common issue does not satisfy the common issues criterion, the preferable procedure criterion, and the representative plaintiff criterion for certification.

[9] In the result, the Plaintiffs’ motion is dismissed.

B. Factual Background

[10] In order to understand my reasons for dismissing the Plaintiffs’ motion, it is necessary to review in some considerable detail the six-year history of the class action. A chronology follows with several pauses to explain the legal background and to contextualize: (a) the several legal problems presented by the Plaintiffs’ motion to amend their pleading and their request to add another common issue; (b) Uber’s aggressive no-holds-barred resistance to the Plaintiffs’ requests, including Uber’s argument that the Plaintiffs’ motion is an abuse of process, statute-barred, and, in any event, uncertifiable. The detailed and annotated factual chronology follows.

[11] The Defendants, Uber Technologies Inc., Uber Canada, Inc., Uber B.V., and Rasier Operations B.V., and the non-defendant Uber Portier B.V., are part of a group of companies that have come to be known collectively and individually as Uber. Uber has developed computer software applications “Apps” for GPS-enabled smartphones. The Apps have transformed the transportation business, most particularly the taxi and limousine business and the restaurant delivery business.

[12] The Plaintiff, David Heller, a resident of Ontario, entered into several contracts with Uber, and using the Uber Apps, he delivered food from restaurants to consumers. Pursuant to the Class Proceedings Act, 1992, on January 17, 2017, Mr. Heller brought a class action on behalf of Uber Drivers, and he alleged that he and his fellow Uber Drivers are employees of Uber and entitled to the benefits of Ontario’s Employment Standards Act, 2000.

[13] After the class action had been commenced, in April 2018, Mr. Heller stopped using Uber’s Apps. This means that he is not a contracting party to the Amended Arbitration Clause that is the source of the current dispute between the parties that underlies the motion now before the court.

[14] While he was an active driver, the Service Agreements between Mr. Heller and Uber included an Arbitration Clause. Uber moved to have Mr. Heller’s proposed class action stayed in favour of arbitration in the Netherlands. On the stay motion, Mr. Heller argued that the Arbitration Clause was an illegal contracting out of the Employment Standards Act, 2000 and he argued that it was unenforceable as an unconscionable contract.

[15] On January 30, 2018, I granted Uber’s stay motion,[^7] and Mr. Heller appealed to the Ontario Court of Appeal.

[16] On January 2, 2019, the Court of Appeal reversed my decision,[^8] and Uber appealed to the Supreme Court of Canada. The Court of Appeal held that the Arbitration Clause was an illegal contracting out of the Employment Standards Act, 2000 and also unconscionable.

[17] On June 26, 2020, in Uber Technologies Inc. v. Heller,[^9] the Supreme Court of Canada affirmed the decision of the Court of Appeal, and the Supreme Court invalidated Uber’s Arbitration Clause as an unconscionable contract.

[18] On August 26, 2020, Uber amended its Service Agreements and it introduced the Amended Class Action Waiver and Arbitration Clause as set out below.

Amended Arbitration Clause

You entered into an agreement (“Agreement”) with Rasier Operations BV (“Company”) for your use of certain software and other services. This Addendum is an addendum to that agreement and it sets forth additional terms and conditions that are applicable in the regions in which you provide transportation services. By clicking “Yes, I agree”, you agree to be bound by the additional terms below. Capitalized terms used herein but not defined shall have the meanings set forth in the Agreement.

The below replaces section 15 of the Agreement.

IMPORTANT: PLEASE READ THIS ARBITRATION PROVISION (“ARBITRATION PROVISION”) CAREFULLY. IT WILL REQUIRE YOU TO RESOLVE DISPUTES WITH US ON AN INDIVIDUAL BASIS THROUGH ARBITRATION, EXCEPT IN CERTAIN CIRCUMSTANCES.

YOU MAY CHOOSE TO OPT OUT OF THIS ARBITRATION PROVISION BY FOLLOWING THE INSTRUCTIONS BELOW.

IF YOU DO NOT OPT OUT OF THIS ARBITRATION PROVISION AND THEREFORE AGREE TO ARBITRATION WITH US, YOU ARE AGREEING IN ADVANCE, EXCEPT AS OTHERWISE PROVIDED BELOW, THAT YOU WILL NOT PARTICIPATE IN AND, THEREFORE, WILL NOT SEEK OR BE ELIGIBLE TO RECOVER MONETARY OR OTHER RELIEF IN CONNECTION WITH ANY CLASS ACTION OR OTHER COLLECTIVE PROCEEDING. THIS ARBITRATION PROVISION, HOWEVER, WILL ALLOW YOU TO BRING INDIVIDUAL CLAIMS IN ARBITRATION ON YOUR OWN BEHALF.

15.1. How This Arbitration Provision Applies

(a) All disputes arising out of or in connection with the Agreement, or in respect of any legal relationship associated with or derived from the Agreement, will be finally and conclusively resolved by arbitration, on an individual basis, under the Arbitration Rules (“ADRIC Rules”) of the ADR Institute of Canada, Inc. (“ADRIC”), except as modified here.

(b) The ADRIC Rules are available by, for example, searching www.google.ca to locate “ADRIC Arbitration Rules” or by clicking here. You can also contact ADRIC at 1-877-475-4353 or www.adric.ca.

(c) The governing law, known as the Seat of Arbitration, will be that of the province or territory where you reside, or of Ontario if you reside outside Canada. The language of the arbitration will be English or, if the governing law is Québec’s, French if you choose.

(d) The arbitration hearings and meetings may be held at any location(s) the arbitrator considers appropriate. Arbitration hearings may be conducted by telephone, email, the Internet, videoconferencing, or other communication methods, unless the arbitrator disagrees.

Information about the cost of arbitration is below in section 15.5.

(e) You have the right to consult with counsel of your choice about this Arbitration Provision and to be represented by counsel at any stage of the arbitration process.

(f) If any portion of this Arbitration Provision is unenforceable, the remainder of this Arbitration Provision will be enforceable. This Arbitration Provision survives the termination of your relationship with us, and it continues to apply if your relationship with us is ended but later renewed.

(g) Except as provided below regarding the Class Action Waiver, this Arbitration Provision covers without limitation disputes arising out of or relating to interpretation or application of this Arbitration Provision, including the formation, scope, enforceability, waiver, applicability, revocability or validity of this Arbitration Provision or any portion of this Arbitration Provision.

15.2. Limitations On How This Arbitration Provision Applies

(a) Nothing in this Arbitration Provision prevents you from filing a claim with a government agency or prevents that agency from adjudicating and awarding remedies based on that claim.

(b) Where you allege claims of sexual assault or sexual harassment, you may choose to bring those specific claims in court instead of arbitration. We agree to honour your choice of forum with respect to your individual sexual harassment or sexual assault claim but in doing so we do not waive the enforceability of any other part of this Arbitration Provision (including but not limited to Section 15.3—Class Action Waiver, which will continue to apply in court and arbitration).

15.3. Class Action Waiver

This Arbitration Provision affects your ability to participate in class or collective actions. Both Uber and you agree to bring any dispute in arbitration on an individual basis only, and not on a class or collective basis on behalf of others. There will be no right or authority for any dispute to be brought, heard or arbitrated as a class or collective action, or for you to participate as a member in any such class or collective proceeding (“Class Action Waiver”). Notwithstanding any other provision of this Arbitration Provision or the ADRIC Rules, disputes in court or arbitration regarding the validity, enforceability, conscionability, or breach of the Class Action Waiver, or whether the Class Action Waiver is void or voidable, may be resolved only by a court and not by an arbitrator. In any case in which (1) the dispute is filed as a class or collective action and (2) there is a final judicial determination that all or part of the Class Action Waiver is unenforceable, the class or collective action to that extent must be litigated in court, but the portion of the Class Action Waiver that is enforceable shall be enforced in arbitration.

15.4. Starting The Arbitration

(a) Before starting arbitration with ADRIC, the party bringing the claim in arbitration must first deliver a written Notice of Request to Arbitrate (“Notice”) within the limitation period that would apply if the claim were brought in a Court in your province or territory of residence, or of Ontario if you reside outside Canada. The Notice must include contact information for the parties, the legal and factual basis of the claim, and the remedy sought and amount claimed. Any demand for arbitration made to us must be served to Uber Canada Inc.’s registered address (℅ McCarthy Tétrault LLP, 66 Wellington Street West, Suite 5300, TD Bank Tower, Toronto ON M5K 1E6).

(b) Before the Notice is delivered to ADRIC, the party bringing the claim shall first attempt to informally negotiate with the other party, in good faith, a resolution of the dispute, claim or controversy between the parties for a period of not less than 30 days but no more than 45 days (“negotiation period”) unless extended by mutual agreement of the parties. During the negotiation period, any otherwise applicable limitation period will be tolled (temporarily suspended). If the parties cannot reach an agreement to resolve the dispute within the negotiation period, the party bringing the claim may deliver the Notice to ADRIC.

(c) To commence arbitration, the party bringing the claim must: (1) deliver the Notice to ADRIC and (2) pay their portion of any initial arbitration filing fee (see Section 15.5, below).

15.5. Paying For the Arbitration

(a) Each party shall follow the ADRIC Rules applicable to the initial arbitration filing fees, called the Commencement Fee and Case Service Fee, except that your portion of any initial arbitration filing fees in total will not exceed the amount of the filing fee to start an action in the superior court of the province or territory where you reside, or of Ontario if you reside outside Canada. If you could have brought your claim in a provincial/territorial court in your province/territory of residence for a lower filing fee than the ADRIC Commencement Fee and Case Service Fee, that lower amount applies instead. After (and only after) you have paid your portion of the initial arbitration filing fees, we will make up the difference, if any, between the fee you have paid and the amount required by the ADRIC Rules.

(b) In all cases where required by law, we will pay the arbitrator's fees, as well as all fees and costs unique to arbitration. Otherwise, such fee(s) will be apportioned between the parties in accordance with applicable law, and any disputes in that regard will be resolved by the arbitrator.

(c) Generally, an arbitrator’s fees are similar in amount to a lawyer’s fees, and can vary based on experience and location.

15.6. Your Right To Opt Out Of This Arbitration Provision

(a) Agreeing to this Arbitration Provision is not a mandatory condition of your contractual relationship with us. If you do not want to be subject to this Arbitration Provision, you may opt out of this Arbitration Provision as set out here. To do so, within 30 days of the date that this Arbitration Provision is electronically accepted by you, you must send an email from the email address associated with your driver account to canadaoptout@uber.com, stating your intent to opt out of this Arbitration Provision, as well as your name, the phone number associated with your account, and the city in which you reside.

(b) Your email may opt out yourself only, and any email that tries to opt out anyone other than yourself will be void as to any others. Should you not opt out of this Arbitration Provision within the 30-day period, you and Uber shall be bound by the terms of this Arbitration Provision. You will not be subject to retaliation if you exercise your right to opt out of this Arbitration Provision.

(c) Your acceptance of this Agreement or your decision to opt out of this Arbitration Provision does not affect any obligation you have to arbitrate disputes pursuant to any other agreement you have with us or our affiliates. Likewise, your acceptance of or decision to opt out of any other arbitration agreement you have with us or any of our affiliates does not affect any obligation you have to arbitrate claims pursuant to this Arbitration Provision.

16. Except as otherwise set forth in this Agreement, this Agreement shall be exclusively governed by and construed in accordance with the laws of the province or territory where you reside, or of Ontario if you reside outside Canada, excluding their rules on conflicts of laws.

[19] Uber submits that its amended standard form Service Agreements is compliant with the decision of the Supreme Court of Canada about unconscionable contacts. Uber submits that the Class Action Waiver and Arbitration Clause is a genuine consensual submission to arbitration. It is not a mandatory stipulation of the contract. The arbitration provision is no longer a contract of adhesion, and Uber submits that there is a genuinely voluntary consensual and conscionable submission to arbitration.

[20] Uber submits that under the amended Service Agreement, the driver can choose to have his or her disputes arbitrated, in which case he or she forgoes individual actions or collective actions. Thus, if the Uber driver voluntarily selects arbitration, he or she would in effect be opting into arbitration. If the driver, however, waives the arbitration provision, he or she is contractually not foreclosed from participating in a class action or of bringing an individual action or a claim under the administrative provisions of the Employment Standards Act, 2000 by filing a complaint to the Ministry of Labour.

[21] Uber points out that the Class Action Waiver and Arbitration Clause caps up-front filing costs for arbitration at what it would cost to commence a court proceeding. The drivers can opt-out of the arbitration provision by using a hyperlink that automatically generates an email to opt-out of arbitration. Uber points out that the arbitration can take place either virtually or in the driver’s home province or territory. There is a hyperlink, a phone number, a website, and a Google search term available to access the governing arbitration rules which exclude certain claims. The amended Arbitration Clause describes in detail the process for starting an arbitration and provides that the disputes are resolved through an arbitration governed by the Arbitration Rules of the ADR Institute of Canada, Inc., which has a reputation as a pre-eminent self-regulatory dispute resolution organization. Under the rules, the arbitrator must strive to achieve a just, speedy and cost-effective determination of every proceeding on its merits.

[22] I shall return to this topic below, but it is not plain and obvious that the new arbitration clause is unconscionable or unfair, and, in any event, the unconscionability or not of the Class Action Waiver and Arbitration Agreement is a matter that has been reserved for individual issues trials if the certified class action gets that far. On this motion to amend the Statement of Claim, the Plaintiffs challenge the validity of the new arbitration provision on grounds other than unconscionability.

[23] Returning to the factual background to the motion now before the court, after the introduction of the Class Action Waiver and Arbitration Clause, the Plaintiffs’ action proceeded to a hearing of their motion for certification. At the certification motion, Felicia Garcia was added as a Representative Plaintiff. Ms. Garcia, after receiving legal advice, had exercised her waiver of the submission to arbitration, the significance of which waiver of arbitration is yet another topic to which I shall return below.

[24] At the certification motion, the Plaintiffs asked that the Class Action Waiver and Arbitration Clause be struck down as unconscionable and contrary to the public policy of the Class Proceedings Act, 1992 and the Employment Standards Act, 2000. In their certification factum, the Plaintiffs submitted at paragraphs 212-218 [footnotes omitted]:

The Class Action Waiver is Contrary to Public Policy

212. Additionally, the Class Action Waiver is contrary to public policy as it significantly interferes with the administration of justice by depriving the Class Members of access to a collective dispute resolution process. In Dutton, the Supreme Court of Canada identified three public policy benefits of class proceedings: (a) judicial economy (or administration of justice); (b) access to justice; and (c) behaviour modification. The Class Action Waiver seeks to defeat all three benefits of class and representative proceedings identified by the Supreme Court in Dutton.

213. With respect to judicial economy or the administration of justice, the pursuit of individual claims through arbitration wastes resources, duplicates fact-finding, and creates the potential for inconsistent results, undermining public policy.

214. The confidential arbitration of employment standards claims also undermines the ESA’s remedial objectives. The ability to pursue individual ESA claims with the Ministry of Labour does not solve the problem. Drivers cannot aggregate their claims in that forum, and they would be unable to pursue the same remedies.

215. Moreover, limiting the Class Members to arbitration or the Ministry of Labour complaints process is inconsistent with the ESA. In 1996, to conserve resources, the legislature amended the ESA to allow unionized employees to pursue their claims in arbitration and non-unionized employees to choose between a court process or the complaints process. Enforcing the Class Action Waiver would effectively take away that choice.

216. “[T]here is no material difference between a provision that discourages dispute resolution and one that precludes dispute resolution altogether”. A contract that functionally prohibits access to the courts is just as offensive to public policy as those that explicitly do so.

217. While the Class Action Waiver provides a dispute resolution process in theory, the practical result is a barrier to justice. Without a class proceeding, the individual Drivers are unlikely to pursue their claims. The relatively low monetary value of their claims, their low incomes, and the complexity of the legal issues would be significant challenges to overcome. Further, workers are reluctant to bring claims against the parties they depend on to earn a living.

218. For the reasons outlined above, the Class Action Waiver is invalid.

[25] At the certification stage, I declined to strike down the Class Action Waiver and Arbitration Clause for the reasons that I set out in paragraphs 123 – 143 of my certification decision, which stated:

123. In the immediate case, although the Plaintiffs were not entirely clear about the precise relief that they seek, it appears that in addition to certification of their proposed class action, they ask the court to strike down the Arbitration and Class Action Waiver Clause.

124. The Plaintiffs rely on several cases about the court’s authority under s. 12 of the Class Proceedings Act, 1992 or other procedural mechanisms to act to preserve the integrity of the opt-out process or the prosecution of the class action by making orders regulating the communications made by a defendant to putative Class Members or to Class Members. Although those cases are of assistance in the sense that they show that the court has the jurisdiction to control the communications by defendants to putative Class Members or to Class Members, those cases are different than the case at bar and raise different factual and legal questions and these cases focus on Defendants’ communications to Class Members and not substantive orders.

125. In the immediate case, a review of the factual background and of the procedural background, reveals three certainties associated with the Arbitration and Class Action Waiver Clause. First, that Uber does not wish to have its relationship with Drivers and Delivery People to be an employer and employee relationship. Second, that Uber wishes any disputes with Drivers and Delivery People to be arbitrated not litigated. Third, Uber wishes to avoid class proceedings under the Class Proceedings Act, 1992. All those aspirations existed before Mr. Heller commenced his proposed class action against Uber.

126. None of these aspirational certainties are per se illegal. For the immediate case, while Uber cannot contract out of the Employment Standards Act, 2000 - if the Act applies - Uber can contract so that the Act does not apply, and there is nothing per se illegal about contracting parties agreeing to a referral to arbitration. For the immediate case, there is no legislation; for instance, like sections 7 and 8 of Ontario’s Consumer Protection Act, 2002, set out below, that would foreclose resort to arbitration and that would protect the rights of a class member to participate in a class action notwithstanding contractual provisions that would bar participation.

127. In Seidel v. TELUS Communications Inc.,[^10] Ms. Seidel signed a standard form TELUS cellular phone services contract. The contract included an arbitration agreement and a waiver of any right to commence or participate in a class action. Nevertheless, Ms. Seidel commenced a proposed class action in British Columbia, and she asserted common law causes of action and also statutory causes of action under British Columbia’s consumer protection statutes. […] Relying on the arbitration clause, TELUS applied for a stay of all proceedings. Varying the judgment of the British Columbia Court of Appeal, a majority of the Supreme Court, stayed all the causes of action except one of the statutory causes of action that was available to consumers. The Seidel v. TELUS Communications Inc. demonstrates that courts will enforce agreements designed to resolve disputes by individual arbitration without a class action.

128. Although the Plaintiffs have reasonably strong arguments that the Arbitration and Class Action Waiver Clause (like the original arbitration agreement contained in the Service Agreements) is unenforceable on the grounds that: (a) it offends the principles of contract formation; (b) it is unconscionable; or (c) it is contrary to public policy, these arguments raise serious genuine issues that require a trial.

129. These arguments cannot be summarily determined on a certification motion, and, moreover, at first blush these arguments would appear to be individual issue determinations that require individual determinations. (If the parties think otherwise, they may apply for an additional common issue.) And, in any event, these arguments do not negate the circumstance that an agreement to arbitrate is not per se illegal.

130. As the procedural history reveals, when this class action commenced, Uber attempted to have it stayed for arbitration. However, that gambit failed when the Court of Appeal and the Supreme Court of Canada found the arbitration provision in the Service Agreements to be unenforceable on the grounds of the contractual doctrine of unconscionability.

131. As the factual background above reveals, on August 26, 2020, Uber amended the Service Agreements to provide for arbitration and for the Riders and the Delivery People to waive any right to participate in a class action. However, the amendment provided the Riders and the Delivery People for a right to opt out of the arbitration provision. Uber’s new gambit is not to move for a stay for arbitration for the Riders and Delivery People who have not exercised their right to opt-out of arbitration; rather, the new gambit is to have the class definition exclude those Riders and Delivery People who did not exercise their right to opt-out of arbitration, which would be a right to opt-in (i.e. a right not to opt-out) to the current class proceedings, which was already underway in August 2020.

132. I can safely assume that if I were to amend the class definition, it would gut the class action. However, I shall not do so.

133. Uber is confident that it has addressed all of the contracting elements that led the Court of Appeal and the Supreme Court to hold that the former arbitration agreement was unconscionable. Uber is confident that the August 2020 amendment to the Service Agreements is valid and enforceable. At this juncture, it is not for me to say whether Uber may be overconfident, but I can say that the Plaintiffs raise strong arguments that the notifications to the class were insufficient for them to appreciate the significance of the Arbitration and Class Action Waiver Clause.

134. In any event, the Plaintiffs disagree that the Arbitration and Class Action Waiver Clause is enforceable, and the Plaintiffs submit that what Uber is attempting to do is to interfere with the integrity of the class proceeding and to interfere with the rights of the putative Class Members, including the right to make a decision about opting out of a class proceeding after it has been certified. The Plaintiffs ask the court to strike down the Arbitration and Class Action Waiver Clause for the putative Class Members.

135. However, in my opinion, striking down the Arbitration and the Class Action Waiver Clause for the putative Class Members is none of possible, appropriate, or necessary at this juncture of the proposed class proceeding since I shall not be amending the class definition to exclude the putative Class Members that may be bound by the Arbitration and the Class Action Waiver Clause.

136. Striking down the Arbitration and Class Action Waiver Clause is not possible because the Class Proceedings Act, 1992 is a procedural statute, and it would take a substantive determination not available on a certification motion to strike down a contract term. In the cases where the Court has exercised its jurisdiction under the Class Proceedings Act, 1992 to oversee the proper prosecution and defence of the class proceeding, the focus has been on controlling communications not on making substantive orders.

137. Striking down the Arbitration and Class Action Waiver Clause for the putative Class Members is not appropriate for two reasons. First, the persons for whom the substantive order would be made are just putative Class Members and so no binding order can be made to benefit a class that has not yet been certified. Second, it has not been determined that the enforceability, unconscionability, or legality of the Arbitration and Class Action Waiver Clause is a common or an individual issue.

138. In any event, striking down the Arbitration and Class Action Waiver Clause is unnecessary at this juncture of the proposed class proceeding. Rather, what is necessary is adequate notice of the legal significance, if any, of the Arbitration and Class Action Waiver Clause. The putative Class Members must be provided with sufficient information about the significance of opting out and of not opting out.

139. With respect to necessity, as already foreshadowed above, I shall be certifying this action as a class action. The Class Proceedings Act, 1992 requires that the putative Class Members be given notice of this certification of the action. The Class Members will be informed of their right to opt-out and of the significance of not opting out.

140. In the immediate case, what the putative Class Members need to be told, among other information, is 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 with rights 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. The determination of the merits of that defence would be determined at the individual issues trials, unless the enforceability of the Arbitration and Class Action Waiver Clause is made an additional common issue.

141. In the immediate case, once the putative Class Members are fully informed about the Arbitration and Class Action Waiver Clause, they can make a reasoned decision about whether: (a) to opt-out to pursue arbitration; (b) to opt-out to pursue a claim directly under the Employment Standards Act, 2000, which is not precluded by the Arbitration and Class Action Waiver Clause; (c) to not opt-out and wait and see whether there is a successful common issues determination in which case depending on whether they did not opt-out of the Arbitration and Class Action Waiver Clause, they may have to establish that they are not bound by the provision.

142. Further, with respect to necessity of making an order about the Arbitration and Class Action Waiver Clause at this juncture of the class action, it may be noted that should Uber succeed at the common issues trial, then the question of the enforcement of the clause is moot.

143. In the result, I do not propose to do anything at this juncture about the Arbitration and Class Action Waiver Clause.

[26] When the action was certified, I certified the following questions as satisfying the common issues criterion:

1. Are the Class Members “employees” of the Defendants (or of any Defendant) pursuant to the Employment Standards Act, 2000 (“ESA”)?

2. Are the Defendants (or some of the Defendants) a common employer of the Class Members for the purposes of the ESA?

3. If the answer to (1) is “yes”, are the Class Members in “pensionable employment” of the Defendants (or of any Defendant) pursuant to the Canada Pension Plan (“CPP”)?

4. If the answer to (1) is “yes”, are the Class Members in “insurable employment” of the Defendants (or of any Defendant) pursuant to the Employment Insurance Act (“EI”)?

5. If the answer to (1) is “yes”, are the Class Members outside the scope of the “taxi cab driver” exemption to Parts VIII and X of the ESA because they are not “taxi cab drivers”?

6. If the answer to (1) is “yes”, do the minimum requirements of the ESA with regard to minimum wage, vacation pay, and notice of termination or pay in lieu thereof form express or implied terms of the Defendants’ (or of any Defendant’s) contracts with the Class Members?

7. If the answer to (5) is “yes”, do the minimum requirements of the ESA with regard to overtime pay, public holiday pay, and premium pay form express or implied terms of the Defendants’ (or of any Defendant’s) contracts with the Class Members?

8. If the answer to question (1) is “yes”, do the Defendants (or does any Defendant) owe contractual duties and/or a duty of good faith to:

(a) ensure that the Class Members are properly classified as employees;

(b) ensure that Class Members’ hours of work are monitored and accurately recorded;

(c) ensure that the Class Members are paid the minimum wage;

(d) ensure that the Class Members are paid vacation pay;

(e) ensure that the Class Members whose services the Defendants terminated without just cause received notice of termination or pay in lieu thereof (“Termination Pay”); and

(f) ensure that the Class Members are reimbursed for out-of-pocket expenses paid for gas, insurance, maintenance, parking fines, and/or cell phone data in connection with the use of personal vehicles and/or mobile phones used to perform work for the Defendants (“Out-of-Pocket Expenses”)?

9. If the answer to question (5) is “yes”, do the Defendants (or does any Defendant) owe contractual duties and/or a duty of good faith to:

(a) ensure that the Class Members are paid overtime pay for hours worked in excess of 44 hours per week; and

(b) ensure that the Class Members are paid public holiday pay and premium pay?

10. Did the Defendants (or any Defendant) breach any of their contractual duties and/or duty of good faith? If so, how?

11. If the answer to (1) is “yes”, did the Defendants (or any Defendant) fail to pay the Class Members minimum wage, vacation pay, and Termination Pay as required by the ESA?

12. If the answer to (5) is “yes”, did the Defendants (or any Defendant) fail to pay the Class Members overtime pay, holiday pay, and premium pay as required by the ESA?

13. If the answers to (3) and/or (4) are “yes”, did the Defendants (or any Defendant) fail to make the prescribed employer CPP and/or EI contributions on behalf of the Class Members?

[27] In March 2022, there was an omnibus motion and cross-motion in writing in which I was asked: (a) to settle the form and content of the Certification Order; (b) to settle the form and content of the Notice of Certification to the Class Members; and (c) to add additional common issue questions. I determined these three requests in three Reasons for Decision that I released on March 31, 2022.

[28] In one decision, I determined the form and content of the Certification Order.[^11]

[29] In a second decision,[^12] I resolved the dispute about: (a) the extent of publication of the notice; (b) the nature of the posting of the notice through the Uber App; and (c) whether certain commentary that Uber wished included but to which the Plaintiffs objected should be in the notice. I settled the content of the notice, and I directed that the approval of the Notice and the Notice Plan is without prejudice to a motion in writing to be brought within 30 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 unenforceable.

[30] In the third decision,[^13] I resolved the matter of whether there should be additional common issues. As a part of the omnibus motion, Uber moved to have the following question certified as a common issue:

Is the relationship between the Class Members and Uber one of employer and employee or a commercial relationship in which Uber develops, improves, licenses, and markets technology that the Class Members license and use to provide services to third parties?

And the Plaintiffs moved to have the following question certified as a common issue:

Is the Class Action Waiver void because it: (a) is contrary to the Employment Standards Act, 2000; (b) contravenes the Class Proceedings Act, 1992; (c) is contrary to public policy; and/or (d) lacks consideration?

[31] On March 31, 2022, I granted Uber’s request to add a common issue, but I dismissed the Plaintiffs’ request to add the additional common issue, and I provided the following reasons. In paragraphs 28 – 38 of my decision, I stated:

28. In my opinion, this question is not certifiable. It is not certifiable because it is not underpinned by any cause of action. The first criterion for certification is that the pleadings disclose a cause of action. The Plaintiffs’ Amended Fresh as Amended Statement of Claim does not disclose a cause of action with respect to the Class Action waiver.

29. The Plaintiffs’ Amended Fresh as Amended Statement of Claim, pleaded causes of action in: (a) negligence; and (b) unjust enrichment – which were not certified - and (c) that Uber breached its employment contracts with the putative Class Members and contravened Ontario’s Employment Standards Act, 2000, which causes of action were certified. The Plaintiffs’ Amended Fresh as Amended Statement of Claim makes no claim for relief with respect to the Class Action Waiver and there are no material facts pleaded to support allegations that the Class Action Waiver is void because it: (a) is contrary to the Employment Standards Act, 2000; (b) contravenes the Class Proceedings Act, 1992; (c) is contrary to public policy; and/or (d) lacks consideration.

30. On a certification motion, the court determines whether there is a cause of action, shared by an identifiable class, from which common issues arise that can be resolved in a fair, efficient and manageable way that will advance the proceeding and achieve the three objectives of class actions. In the immediate case, there is no cause of action with respect to the Class Action Waiver that has even been pleaded. Accordingly, the proposed common issue fails the cause of action criterion for certification.

31. There may be other reasons why the Plaintiffs’ proposed common issue is not certifiable. In this regard, I am unable to do a conventional cause of action analysis in the absence of a cause of action with its material facts having been pleaded.

32. I, thus, cannot say much about the parties’ respective arguments as to whether the Plaintiffs could have satisfied the cause of action criterion if they had pleaded the material facts for a cause of action.

33. All I can say at this juncture is that Uber has strong arguments based on the material facts pleaded in the Plaintiffs’ factum for this motion that the cause of action criterion has not been satisfied. Causes of action with respect to contract formation and with respect to setting aside contracts on the grounds of illegality do exist, but in the immediate case, they have not been pleaded, and it is far from clear how these causes of action could be applied to red pencil and extract the Class Action Waiver from a contract that the Plaintiffs otherwise wish to enforce as an employment contract.

34. Similarly at this juncture, all I can say without deciding the point is that Uber has quite strong arguments that it is plain and obvious that the Class Action Waiver is not void because: (a) it is not contrary to the Employment Standards Act, 2000; (b) it does not contravene the Class Proceedings Act, 1002 and in any event the Class Proceedings Act, 1992 is a procedural statute and not the basis for substantive relief; (c) the Class Action Waiver is not contrary to public policy; and (d) the Class Action Waiver does not want for consideration.

35. Much the same thing may be said about the common issues, preferable procedure, and representative plaintiff criteria, where Uber has strong arguments that these criteria are not satisfied for the proposed question.

36. I therefore shall not certify the question proposed by the Plaintiffs about the Class Action Waiver. This means that the enforceability of the Class Action Waiver will not be determined at the common issues trial. However, as I noted in my certification motion decision, Class Members who did not opt out of the Class Action Waiver are still Class Members and may be able to negate the operation of the Class Action Waiver at individual issues trials if the class action gets that far.

37. I, therefore, recommend that Class Members be informed 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, they should also be informed that 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.

38. I leave it to Class Counsel to take up this recommendation as they may be advised by seeking amendments to the Long and Short Notices of the Certification of this action.

[32] The Plaintiffs sought leave to appeal my decision refusing to certify the proposed arbitration clause common issue, and Uber – not the Plaintiffs – adopted my recommendation and brought a motion in writing to amend the Short and Long Notices to inform Class Members about the Arbitration and Waiver Clause dispute.

[33] Thus, on April 14, 2022, the Plaintiffs brought a motion for leave to appeal my decision refusing to add their additional common issue, and on April 27, 2022, Uber advised the Plaintiffs that it intended to bring a motion to amend the Notice of Certification to state that the validity of the Amended Class Action Waiver and Arbitration Clause would be determined at individual issues trials.

[34] On May 2, 2022, there was a case conference, and Uber requested an extension of time to bring the motion to amend the Notices. I granted that request, and I issued a File Direction extending the time for the motion until 30 days following either: (i) a decision of the Divisional Court denying the Plaintiffs’ motion for leave to appeal my decision, or (ii) if leave to appeal is granted, a decision on that appeal.

[35] On July 8, 2022, the Divisional Court denied leave to appeal.[^14]

[36] On August 3, 2022, Uber provided a draft of their motion materials to amend the notice and requested the Plaintiffs’ position. Not receiving a response from the Plaintiffs, on August 8, 2022, Uber delivered its motion materials to amend the notice to the Class Members.

[37] On August 18, 2022, the deadline for the Plaintiffs’ responding material, I received the following letter from Class Counsel:

We write in connection with the Defendants’ Motion to Amend the Class Action Notices in the above-noted matter, returnable in writing on August 22, 2022.

The Plaintiffs have written the Defendants to request a Case Conference between the parties and Your Honour to discuss potential motions by the Plaintiffs to amend the Amended Fresh as Amended Statement of Claim and to certify an additional common issue arising from that amendment. If the Plaintiffs are successful in these proposed motions, the Defendants’ Motion to amend the Class Action Notices will be moot.

Accordingly, the Plaintiffs are proposing that their two motions be heard together with the Defendants’ Motion to Amend the Class Action Notices. As a result of this request, the Plaintiffs do not intend to file materials in response to the Defendants’ motion materials at this time. The Plaintiffs will write Your Honour once we have conferred with the Defendants and determined whether the proposed motions of the Plaintiffs will be opposed or proceed on consent. Either way it is anticipated that the proposed Case Conference should be quite brief.

[38] On August 22, 2022, I received a letter from Uber’s Counsel in which the Defendants opposed proceeding as proposed by Class Counsel.

[39] A case management conference was arranged, and on September 12, 2022, the day before the conference, I received the following letter from Class Counsel:

[…] As you will recall, the Plaintiffs seek to schedule two motions: (i) a motion to amend the Amended Fresh as Amended Statement of Claim; and (ii) a motion to certify an additional common issue arising from that amendment. For Your Honour’s reference, the Plaintiffs have enclosed a draft of their statement of claim with the proposed amendments.

The proposed amendments are with respect to the Defendant’s August 26, 2020 amendments to the Class Members’ service agreements, which inserted a class action waiver and arbitration clause (the “Arbitration and Class Action Waiver Clause”). The Plaintiffs have carefully considered Your Honour’s Reasons for Decision dated March 31, 2022, on the motions to certify additional common issues. Taking Your Honour’s reasons into account, the Plaintiffs propose to amend their statement of claim by pleading causes of action that the Arbitration and Class Action Waiver Clause is void, pleading the material facts necessary to support the allegation that the Arbitration and Class Action Waiver Clause is void, and claiming relief with respect to the Arbitration and Class Action Waiver Clause. Following these amendments, the Plaintiffs seek to certify the following question as a common issue:

Are the August 26, 2020 Amendments to the Class Members’ service agreements, which inserted a class action waiver and arbitration clause, void as a matter of law because the amendments: (a) are contrary to the Employment Standards Act, 2000; (b) contravene the Class Proceedings Act, 1992; (c) are contrary to public policy; (d) lack consideration; and/or (e) do not apply retroactively?

The Defendants have brought a motion to amend the class action notices. Specifically, the Defendants seek to amend the class action notices to inform the 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.

If this Honourable Court grants the Plaintiffs their motion to amend the statement of claim and certify an additional common issue with respect to the Arbitration and Class Action Waiver Clause, then the Defendants’ motion to amend the notices of certification would become moot.

Accordingly, the Plaintiffs propose that all three motions be heard together. […]

[40] On September 13, 2022, at the case management conference, Uber agreed that if the Plaintiffs’ motions were successful, then Uber’s motion was moot and the Plaintiffs agreed that if their motions were unsuccessful, then Uber’s motion was unopposed. In these circumstances, I set a timetable for the Plaintiffs’ motion to amend the Statement of Claim and to have another common issue certified.[^15]

[41] On October 14, 2022, the Plaintiffs brought their Motion to Amend the Amended Fresh as Amended Statement of Claim and to certify an additional common issue.

[42] The Plaintiffs’ motion was supported by: (a) the Plaintiff’s Certification Motion Records (Volumes 1-3), dated December 18, 2020, (b) the Plaintiff’s Supplementary Certification Motion Records (Volumes 1-6), dated June 9, 2021; (c) the Certification Decision, dated August 12, 2021; (d) the Additional Common Issue Decision, dated March 31, 2022; (e) the Leave to Appeal Decision, dated July 8, 2022; (f) the Case Conference Decision, dated September 13, 2022; and (g) affidavit of Melissa O’Connor dated October 14, 2022. Ms. O’Connor is a law clerk with the law firm of Wright Henry LLP, lawyers for the Plaintiffs.

[43] Uber responded to the Plaintiffs’ motion with the affidavit dated November 11, 2022 of Rachael Jastrzembski. Ms. Jastrzembski is an eDiscovery Strategist with the law firm of Torys LLP, lawyers for Uber.

C. The Amended Amended Fresh as Amended Statement of Claim

[44] To conclude the background to the motion, I set out below the amendments sought by the Plaintiffs to comprise what would be an Amended Amended Fresh as Amended Statement of Claim.

1. The Plaintiffs claim against the Defendants

(m) a declaration that the amendments issued by the Defendants to the Class Members on August 26, 2020 are void and unenforceable on the grounds that they do not apply retroactively, contravene the Class Proceedings Act, 1992, are invalid for lack of consideration, violate the ESA, and/or are contrary to public policy;

AMENDED DISPUTE RESOLUTION MECHANISM

88. On or about August 26, 2020, the Defendants issued amendments to the Class Members’ respective Service Agreements with Uber B.V., Portier, and Rasier (the “August 26, 2020 Amendments”).

89. The Defendants issued the August 26, 2020 Amendments without notice to Plaintiff’s counsel after the Supreme Court of Canada ruled that the Arbitration Clause was unenforceable and affirmed the denial of a stay in favour of arbitration in this action.

90. The Defendants delivered these amendments directly to the Class Members through the App. Every Class Member who opened the App on or after August 26, 2020 was confronted with the same terms of the August 26, 2020 Amendments. The Class Members were not able to log into the App and provide transportation or delivery services unless they accepted the August 26, 2020 Amendments by clicking “Yes, I agree”.

91. The August 26, 2020 Amendments seek to amend the Class Members’ Service Agreements with each of Uber B.V., Portier, and Rasier and replace the Arbitration Clause.

92. The August 26, 2020 Amendments, in relevant part, further purport to:

(a) require Class Members to resolve all disputes arising out of their Service Agreements or relationship with Uber on an individual basis through arbitration, pursuant to the Arbitration Rules of the ADR Institute of Canada, Inc.;

(b) preclude Class Members from participating in any class action or collective proceeding and likewise from seeking or being eligible to recover monetary or other relief in connection any class action or collective proceeding (the “Class Action Waiver”);

(c) require that any dispute as to the validity, enforceability, conscionability, or breach of the Class Action Wavier, including whether it is void or voidable, be resolved by a court;

(d) allow Class Members to “opt out” of the August 26, 2020 Amendments within 30 days of “accepting” the terms therein by sending an email from the email address associated with the Class Member’s Uber account to one of three email addresses: canadaoptoutbv@uber.com, canadaoptout-eats@uber.com, or canadaoptout@uber.com, depending on which Service Agreement Uber is amending;

(e) require Class Members who send an “opt-out” email to state their intent to “opt out”, as well as their name and phone number associated with their Uber account, and the city in which they reside;

(f) require separate “opt out” emails to each entity with which the Class Member has a Service Agreement, such that “opting out” of the August 26, 2020 Amendments with respect to one entity is not effective with respect to a Class Member’s Service Agreements with other entities; and

(g) preclude Class Members from “opting out” of the August 26, 2020 Amendments on behalf of anyone other than themselves.

93. The August 26, 2020 Amendments are void, unenforceable, and inapplicable to this action and unenforceable in any event because, inter alia:

(a) they do not apply retroactively;

(b) they are invalid under the CPA. The August 26, 2020 Amendments were introduced while this action was proceeding. The August 26, 2020 Amendments were insufficient for the Class Members to appreciate the significance of their impact. The August 26, 2020 Amendments therefore operate as an improper and accordingly void opt-out process with respect to this class proceeding;

(c) they are invalid for lack of consideration. The August 26, 2020 Amendments introduced new contractual terms into the employment agreements between the Defendants and the Class Members. However, the Defendants did not offer the Class Members any new consideration to agree to these amendments as is required when introducing new contractual terms in an employment agreement. Accordingly, the August 26, 2020 Amendments are void for lack of consideration;

(d) they violate the ESA because, among other things, they deny Class Members the option of vindicating their rights under the ESA in a civil proceeding which is an impermissible contracting out of the ESA;

(e) they are contrary to public policy because, among other things, they seek to deny Class Members the ability to vindicate their rights in Ontario courts and/or through collective action. The August 26, 2020 Amendments are also contrary to public policy and void for, among other things, undermining the three policy objectives of the CPA namely (a) judicial economy (or administration of justice) (b) access to justice and (c) behaviour modification;

(f) they are an abuse of process; and/or

(g) they are unconscionable. The August 26, 2020 Amendments were part of a standard form contract issued by the Defendants to all Class Members through the App. The Class Members were not able to negotiate any of the terms of the August 26, 2020 Amendments. The only options the Class Members had was to accept the amendments (and potentially opt out later) or reject the amendments and forfeit their ability to continue working. Class Members were required to read through the entire August 26, 2020 Amendments, accept the amendments, and then complete the confusing “opt-out” process within 30 days. The August 26, 2020 Amendments did not explain to the Class Members the significant and deleterious effects which render it practically impossible to the Class Members to pursue their claims against the Defendants by denying them the ability to pursue these claims collectively. No reasonable person who understood the implication of the August 26, 2020 Amendments would have agreed to be denied this crucial tool for vindicating their rights. The Defendants’ undue advantage is clear. If applied to this action, the August 26, 2020 Amendments would compromise the Class Members’ rights years into this proceeding and make it cost prohibitive for the Class Members to seek to vindicate their rights.

94. If a Class Member picks up passengers using the Uber App and also delivers food through the UberEATS App, then he or she may have a Service Agreement with each of Portier, Rasier, and Uber B.V.

95. Uber exerted undue pressure on Class Members, who are dependent on the Defendants to earn income and in a vulnerable position with respect to Uber, by requiring them accept the August 26, 2020 Amendments in order to access the App.

96. Uber unduly discouraged Class Members from “opting out” of the August 26, 2020 Amendments by, inter alia:

(a) placing the relevant instructions at the end of the amendments, which were many pages in length and viewed on the Class Members’ phones;

(b) providing for an unreasonably short 30-day time limit;

(c) not making the mechanism to “opt out” clear, including that the Defendants required that Class Members send specific emails to as many as three different email addresses in order to exercise these provisions; and

(d) making the required steps to “opt out” substantially more onerous than accepting the August 26, 2020 Amendments, which involved simply clicking “Yes, I agree” in the App.

97. The August 26, 2020 Amendments omitted material and necessary information, including not advising Class Members of the pendency of this action or how their failure to “opt out” of the August 26, 2020 Amendments would impact their ability to participate in this action.

D. Is the Plaintiffs’ Motion an Abuse of Process?

[45] The idea of res judicata (“a matter adjudicated”) is the legal rule and the public policy that a final judgment on the merits by a court of competent jurisdiction is binding and determinative of the rights of the parties or their privies in all later suits with respect to fundamental issues decided in the former suit (issue estoppel), and with respect to causes of actions and defences that were decided (cause of action estoppel) or could and ought to have been decided in the former suit (the rule from Henderson v. Henderson).[^16] The public policy rationales for the principle of res judicata are that the preclusive effect of the rule advances consistency, judicial economy, conclusiveness, finality, and the avoidance of repeat or duplicative litigation in the administration of civil justice, most especially in situations where a party or privy to a party has had his or her day in court.[^17]

[46] Courts have also applied the flexible doctrine of abuse of process to preclude re-litigation. The court has an inherent and broad jurisdiction to prevent the misuse of its process that would be manifestly unfair to a party to the litigation or would in some other way bring the administration of justice into disrepute.[^18] In Toronto (City) v. C.U.P.E., Local 79,[^19] the Supreme Court of Canada applied the abuse of process law in circumstances where the requirements of cause of action estoppel and issue estoppel were not satisfied.

[47] Abuse of process is a discretionary doctrine. In Danyluk v. Ainsworth Technologies Inc.[^20] which is a leading case on issue estoppel, the Supreme court said that where there is re-litigation, the court should stand back and, taking into account the entirety of the circumstances, the court should consider whether application of an estoppel, i.e., a preclusive order would work an injustice.[^21]

[48] Uber submits that the Plaintiffs’ motion should be dismissed because it is an abuse of process as re-litigation. I do not agree with Uber that the problem in the immediate case is a matter of litigation in installments, which should be avoided, if possible. However, I do agree with Uber that the Plaintiffs are attempting to litigate for the third time whether there is a common issue about the legality of the Arbitration and Class Action Waiver Clause.

[49] In the immediate case, there is no doubt that there has been re-litigation of the issue of the enforcement of Uber’s arbitration clause, first at the stay motion, second at the certification motion, third at the motion to add additional common issues, and now for a fourth time, on this motion. I agree with Uber that the current motion, which is re-litigation, should be dismissed as an abuse of process.[^22]

[50] I appreciate that the Plaintiffs are purporting to be advancing new illegality arguments against the Class Action Waiver and Arbitration Clause - other than the unconscionability argument, but their public policy arguments about the Employments Standards Act, 2000 and the Class Proceedings Act, 1992 and about access to justice generally are virtually the same as the arguments previously made on the prior motions or are arguments they could and should have made on the prior motions. The prior motions were not dress rehearsals, and putting a new dress on an old argument does not make it a new argument.

[51] I appreciate that it may have seemed that I was inviting the Plaintiffs to bring their current motion when I ruled that they had not pleaded any cause of action to underpin their attack on the Class Action Waiver and Arbitration Clause. But I had no such intention, and my comments just indicated that had the Plaintiffs pleaded material facts to support a cause of action to set aside the clause, then both sides would have had reasonable arguments about whether they had a legally viable cause of action and whether there was a related issue that satisfied the criteria for certification. Rather than being an invitation for re-litigation, my comments may equally be read as intending to dissuade more re-litigation about the arbitration clause and its place in the proposed class action. (Ironically, as it happens, I shall, in any event, address these arguments, yet again, later in this decision; it’s déjà vu all over again.)

[52] Abuse of process is a discretionary doctrine. Taking a step back and considering the totality of the circumstances of the immediate case, I see no injustice in dismissing the Plaintiffs’ motion as an abuse of process.

[53] As I have already noted several times, the arbitration clause is peripheral to what this class action is really all about; namely, whether the relationship between the Class Members and Uber is one governed by the Employment Standards Act, 2000. The class definition sought and obtained by the Representative Plaintiffs does not exclude the Class Members who unlike Ms. Garcia did not opt out of the Class Action Waiver and Arbitration Clause. Thus, it is only a subclass of Class Members for whom the issue of the validity of clause is meaningful. The size of this subgroup is not known. It remains to be determined whether the Employment Standards Act, 2000 applies to any portion of the Class including the subclass. If it is later determined that the Act does not apply, then the Class Members who did not opt out from the Class Action Waiver and Arbitration Clause (the subclass) may no longer need or want to challenge the clause. In short, this class action is and should be about the Employment Standards Act, 2000 and not be derailed any longer by the battle over the arbitration provisions in what may or may not be an employment contract.

E. Do the Plaintiffs’ Plead an Amended Claim that is Statute-Barred?

[54] Contrary to the above conclusion, on the assumption that it would be in the interests of justice for me to exercise my discretion and not foreclose the Plaintiffs’ motion, there are other reasons to dismiss the Plaintiffs’ motion. Before addressing those reasons, which are associated with the certification criteria, I shall address Uber’s argument that the Plaintiffs’ motion should be dismissed on the grounds that the newly pleaded cause of action is statute-barred. On this matter, I do not agree with Uber’s ultimate contention.

[55] I do agree with some of Uber’s arguments. Uber argues, and I agree, that the Plaintiffs’ pleaded attack on the Class Action Waiver and Arbitration Clause is a feigned claim for a declaration.

[56] Uber argues, and I agree, that the Plaintiffs mean to do something consequential by amending their pleading; i.e., something substantive should happen beyond a declaration.

[57] Uber argues, and I agree, that the Plaintiffs’ Amended Amended Fresh as Amended Statement of Claim contains a cause of action to vitiate the Class Action Waiver and Arbitration Clause on grounds other than unconscionability and that amendment is consequential.

[58] In the context of this class action, Uber argues, and I agree, that this is a new cause of action. Uber argues, and I agree, that the law is settled that a plaintiff will not be permitted to plead a new cause of action that is statute-barred. That is a prejudice that cannot be addressed by an award of costs.

[59] Uber argues – and here is where I disagree – that the Plaintiffs’ new cause of action is untimely.

[60] The relevant provisions of the Limitations Act, 2002 are sections 1, 4, 5, and 16 which are set out below:

Definitions

1. In this Act,

“claim” means a claim to remedy an injury, loss or damage that occurred as a result of an act or omission; ….

BASIC LIMITATION PERIOD

Basic limitation period

4. Unless this Act provides otherwise, a proceeding shall not be commenced in respect of a claim after the second anniversary of the day on which the claim was discovered.

Discovery

5. (1) A claim is discovered on the earlier of,

(a) the day on which the person with the claim first knew,

(i) that the injury, loss or damage had occurred,

(ii) that the injury, loss or damage was caused by or contributed to by an act or omission,

(iii) that the act or omission was that of the person against whom the claim is made, and

(iv) that, having regard to the nature of the injury, loss or damage, a proceeding would be an appropriate means to seek to remedy it; and

(b) the day on which a reasonable person with the abilities and in the circumstances of the person with the claim first ought to have known of the matters referred to in clause (a).

Presumption

(2) A person with a claim shall be presumed to have known of the matters referred to in clause (1) (a) on the day the act or omission on which the claim is based took place, unless the contrary is proved.

No Limitation Period

16 (1) There is no limitation period in respect of,

(a) a proceeding for a declaration if no consequential relief is sought;

Conflict with s. 15

(4) This section and section 17 prevail over anything in section 15.

[61] Subject to the adjustment made by s. 5(1)(a)(iv), which adds the factor that a proceeding is an “appropriate” means to seek a remedy, under the Limitations Act, 2002, a claim is “discovered” on the earlier of the date the plaintiff knew (a subjective criterion) or ought to have known, i.e., had the means of knowing (a modified objective criterion) about the claim.[^23] The basic limitation period for discovering a claim is two years in Ontario.

[62] Under the discoverability principle, the limitation period commences to run when the plaintiff subjectively discovers the underlying material facts or, alternatively, when the plaintiff ought to have discovered those facts by the exercise of reasonable diligence.[^24] In other words, when a reasonable person with the abilities and in the circumstances of the plaintiff should have acquired facts to become knowledgeable about his or her claim, the limitation period runs, or, put conversely, the limitation period does not stop running, if the plaintiff ought to have taken steps but took no steps to investigate whether he or she has a claim.[^25]

[63] The date upon which the plaintiff can be said to be in receipt of sufficient information to cause the limitation period to commence will depend on the circumstances of each particular case; it is a fact-based analysis.[^26] What a reasonable person in the same or similar circumstances of the plaintiff knew or ought to have known is a question of fact.[^27]

[64] The modified objective test applies only if a plaintiff does not have actual subjective knowledge of the claim.[^28] If the plaintiff has subjective knowledge of his or her claim, the limitation period is running subject to s. 5(1)(a)(iv) of the Limitations Act, 2002, which adds the element that a proceeding is an “appropriate” means to seek a remedy.

[65] Pursuant to s. 5(2) of the Limitations Act, 2002, unless the contrary is proven, it is presumed that a plaintiff will know of the matters of his or her claim on the day that the act or omission took place. When a limitation period defence is raised, - the onus is on the plaintiff - to provide evidence to show that its claim is not statute-barred and that he or she behaved as a reasonable person in the same or similar circumstances using reasonable diligence in discovering the facts relating to the limitation issue.[^29]

[66] Discovery means knowledge of the facts that may give rise to the claim, and the knowledge required to start the limitation period is more than suspicion and less than perfect knowledge.[^30] If the plaintiff does know "enough facts", which means knowing the material facts, the claim is discovered, and the limitation period begins to run.[^31]

[67] Turning to the application of this law to the immediate case and to the parties’ arguments, in the immediate case, the Plaintiffs submit that there is no applicable limitation period with respect to the claim advanced in the Amended Amended Fresh as Amended Statement of Claim. The Plaintiffs rely on s. 16 (1)(a) of the Limitations Act, 2002 which stipulates that there is no limitation period in respect of a proceeding for a declaration if no consequential relief is sought. The Plaintiffs submit that they are seeking only a declaration without consequential relief and therefore their claim is without limitation period.

[68] With respect, the Plaintiffs’ argument is sophism because the Plaintiffs are in truth seeking the consequential relief of having the Class Action Waiver and Arbitration Clause vitiated and ruled unenforceable. They are in truth seeking consequential relief and their claim is vulnerable to a limitation period defence if the claim is untimely.

[69] However, as I shall now explain, the Plaintiffs do not need to rely on s. 16 (1)(a) of the Limitations Act, 2002. As I shall now explain by the proverbial skin of their litigation teeth and by one of the few good things that has happened during the COVID-19 pandemic, the Plaintiffs’ substantive claim is a timely claim.

[70] In the immediate case, totally apart from the rebuttable presumption imposed by s. 5 (2) of the Limitations Act, 2002, it is obvious that the Plaintiffs have had both the subjective and objective knowledge of the necessary facts material to bring a cause of action (whatever that cause of action may be labelled), to set aside the Class Action Waiver and Arbitration Clause for some considerable time.

[71] When Uber moved to stay the Plaintiffs’ originally proposed class action, the Plaintiffs knew all the material facts they needed to know to challenge the original Arbitration Clause in the Service Agreements and they knew that resort to court proceedings was appropriate.

[72] When Uber introduced the Class Action Waiver and Arbitration Clause, in August 2020, the Plaintiffs, once again, (déjà vu) knew all the material facts necessary to bring a cause of action (whatever that cause of action may be labelled) to challenge the new Arbitration Clause.

[73] Indeed, at the certification motion in July 2021, the Plaintiffs argued that the Class Action Waiver and Arbitration Clause was illegal. However, it was not until the motion now before the court that the Plaintiffs actually plead the necessary material facts, which they have subjectively and objectively known for some time, and it is only in September 2022 that they assert a cause of action to set aside the Class Action Waiver and Arbitration Clause.

[74] In other words, the two-year limitation period for the recently pleaded cause of action began to run on August 26, 2020. But for the COVID-19 pandemic, the Plaintiffs had until August 25, 2022 to commence an action to vitiate the Class Action Waiver and Arbitration Clause. However, the COVID-19 Limitations Suspension extended from March 16, 2020 to September 13, 2020,[^32] and this means the two-year limitation period did not expire on August 25, 2022 but expired on September 13, 2022.

[75] Typically, serving a notice of motion seeking to amend a pleading is the equivalent to issuing the original process to commence any new claim or cause of action, and the bringing of the motion crystallizes the limitations issues.[^33] In the immediate case, the Plaintiffs served their motion on October 14, 2022, which comes a month too late if the conventional rule applies. However, as the above factual narrative reveals, the Plaintiffs delivered a copy of their proposed pleading in their letter to the court on September 12, 2022. In the circumstances of a case managed class action, where the parties typically request leave to bring an interlocutory motion and in the particular circumstances of this particular class action, the Plaintiffs’ letter of September 12, 2022 crystalized the limitations issue. Thus, by the skin of their litigation teeth, the Plaintiffs’ newly advanced cause of action is not statute-barred.

F. Do the Plaintiffs Satisfy the Cause of Action Criterion for Certification of an Additional Common Issue?

[76] In light of my finding that the Plaintiffs’ newly pleaded cause of action is not statute-barred and notwithstanding my finding that the Plaintiffs’ motion is an abuse of process as re-litigation, I shall now analyze whether the pleading and the associated proposed common issue satisfies the cause of action criterion for certification.

1. Cause of Action Criterion: General Principles

[77] The first criterion for certification is that the plaintiff's pleading discloses a cause of action.

[78] The “plain and obvious” test for disclosing a cause of action from Hunt v. Carey Canada,[^34] is used to determine whether a proposed class proceeding discloses a cause of action for the purposes of s. 5(1)(a) of the Class Proceedings Act, 1992.[^35] The court must ask whether, assuming the facts pleaded are true, there is a reasonable prospect that the claim will succeed. To satisfy the first criterion for certification, a claim will be satisfactory, unless it has a radical defect, or it is plain and obvious that it could not succeed.[^36]

[79] In R. v. Imperial Tobacco Canada Ltd.,[^37] the Supreme Court of Canada noted that although the tool of a motion to strike for failure to disclose a reasonable cause of action must be used with considerable care, it is a valuable tool because it promotes judicial efficiency by removing claims that have no reasonable prospect of success and it promotes correct results by allowing judges to focus their attention on claims with a reasonable chance of success.

[80] In Atlantic Lottery Corp. Inc. v. Babstock,[^38] the Supreme Court stated that the test applicable on a motion to strike is a high standard that calls on courts to read the claim as generously as possible because cases should, if possible, be disposed of on their merits based on the concrete evidence presented before judges at trial. However, Justice Brown stated that it is beneficial, and indeed critical to the viability of civil justice and public access thereto that claims, including novel claims, which are doomed to fail be disposed of at an early stage in the proceedings.[^39]

[81] In a proposed class proceeding, in determining whether the pleading discloses a cause of action, no evidence is admissible, and the material facts pleaded are accepted as true, unless patently ridiculous or incapable of proof. The pleading is read generously, and it will be unsatisfactory only if it is plain, obvious, and beyond a reasonable doubt that the plaintiff cannot succeed.[^40]

[82] Bare allegations and conclusory legal statements based on assumption or speculation are not material facts; they are incapable of proof and, therefore, they are not assumed to be true for the purposes of a motion to determine whether a legally viable cause of action has been pleaded.[^41]

[83] Matters of law that are not fully settled should not be disposed of on a motion to strike an action for not disclosing a reasonable cause of action,[^42] and the court's power to strike a claim is exercised only in the clearest cases.[^43] The law must be allowed to evolve, and the novelty of a claim will not militate against a plaintiff.[^44] However, a novel claim must have some elements of a cause of action recognized in law and be a reasonably logical and arguable extension of established law.[^45] In the Ontario Court of Appeal's decision in Darmar Farms Inc. v. Syngenta Canada Inc.,[^46] Justice Zarnett stated:

The fact that a claim is novel is not a sufficient reason to strike it. But the fact that a claim is novel is also not a sufficient reason to allow it to proceed; a novel claim must also be arguable. There must be a reasonable prospect that the claim will succeed.

2. Discussion and Analysis

[84] As I have observed above, the genuine purpose of the Amended Amended Fresh as Amended Statement of Claim is to have the Class Action Waiver and Arbitration Clause set aside. Underlying the Plaintiffs’ cause of action to vitiate the clause, are three arguments about illegality, one argument about contract formation, and one interpretative argument.

[85] The Plaintiffs argue that the arbitration provision in the Service Agreements is illegal as contrary to: (a) the Employment Standards Act, 2000; (b) to the Class Proceedings Act, 1992; and (c) public policy associated with court proceedings for a collective of claimants.

[86] The Plaintiffs’ contract formation argument is that the Class Action Waiver and Arbitration Clause is not a binding contract because it wants for consideration.

[87] The Plaintiffs’ contract interpretation argument is that as a matter of interpretation, once the class action was commenced the clause cannot be interpreted to apply retroactively to the Service Agreements that are the subject of the class action.

[88] Uber does not challenge that the Plaintiffs have not pleaded the material facts to advance these legal arguments. Rather, Uber’s argument is that it is plain and obvious that the Plaintiffs’ cause of action is doomed to failure because the material facts do not constitute a reasonable cause of action. Uber advances strong counterarguments that the Plaintiffs’ arguments are meritless.

[89] For present purposes, I shall not detail either party’s arguments because on the assumption that the material facts in the Amended Amended Fresh as Amended Statement of Claim are true, it is not plain and obvious that the Plaintiffs’ claims are doomed to failure. The Plaintiffs may fail, but they are not doomed to fail.

[90] By way of some little elaboration of why it is both unnecessary and unhelpful in the immediate case to do a fulsome analysis of the Plaintiffs’ new but timely cause of action, and as a segue to my analysis of the other certification criteria, it just needs to be pointed out that one of the pleaded material facts that is assumed to be true is the Plaintiffs’ allegation (which remains to be proven) that the Class Members are employees. Assuming this material fact to be true makes it virtually impossible for Uber to establish that it is plain and obvious that the Plaintiffs’ attack on the Class Action Waiver and Arbitration Clause is doomed to failure.

[91] For instance, if it were the case that the Class Members are employees, then it is not plain and obvious that there has not been a contracting out of the Employment Standards Act, 2000 by virtue of the Class Action Waiver and Arbitration Clause or by other provisions of the Service Agreement.

[92] Therefore, since the Plaintiffs’ claims are adequately pleaded and the legal merit of the claims remains to be determined, the Plaintiffs satisfy the cause of action criterion.

G. Do the Plaintiffs Satisfy the Certification Criteria for the proposed Additional Common Issue?

[93] On the assumption that the Plaintiffs’ motion is not barred as an abuse of process on account of re-litigation and having regard to my conclusions that the Plaintiffs have adequately pleaded a timely cause of action that satisfies the cause of action criterion for certification, the next issue to determine is whether the Plaintiffs’ proposed common issue satisfies the common issues criterion, the preferable procedure criterion, and the representative plaintiff criterion for certification.

[94] For reasons that will soon become apparent, these three criteria can be considered together.

[95] In my opinion, the proposed common issue does not satisfy any of these criteria because the proposed question assumes or presupposes a commonality that can only be determined after the certified common issues are determined.

[96] In other words, the proposed common issue begs or presupposes the commonality of an employment relationship that may turn out not to be common.

[97] Visualize, the common issues trial will determine the nature of the relationship between Uber and the Class Members. The proposed common issue simply presumes that the relationship is commonly an employment relationship for all of the Class Members.

[98] However, if it were determined at the common issues trial that there was no employment relationship for any of the Class Members, then the alleged illegality of contracting out of the Employment Standards Act, 2000 would disappear as would other alleged illegalities.

[99] Further, if it were determined at the common issues trial that some - but not all – Class Members might on an individual basis be employees, then the individual Class Members status would have to be determined at an individual issues trials in accordance with the answer to the common issue. The alleged illegality of contracting out of the Employment Standards Act, 2000 would also be determined at individual issues trials.

[100] Only if it were determined at the common issues trial that there was an employment relationship for some or all Class Members would it be necessary to determine whether for the subclass of Class Members who did not exercise their right to opt-out of the Class Action Waiver and Arbitration Clause (for whom, it may parenthetically be noted, at present, do not have a subclass Representative Plaintiff), might there be a need for a Subclass Member to litigate whether the Class Action Waiver and Arbitration Clause is illegal.

[101] And that case for illegality is necessarily and preferably made at the individual issues trials to quantify entitlements to employee benefits.

[102] I repeat what I said above that the issue of whether the Class Action Waiver and Arbitration Clause, which affects only a subclass of Class Members, is enforceable is a peripheral issue to what is the critical issue to be determined in this certified class action.

[103] Finally on the issue of the certification criteria, technically speaking, Mr. Heller or Ms. Garcia do not qualify as Representative Plaintiffs for the subclass of Class Members who did not opt-out of the Class Action Waiver and Arbitration Clause; however, even if they did qualify, since the proposed question does not satisfy the common issues and the preferable procedure criterion, it follows that the Representative Plaintiff criterion is also not satisfied.

[104] In short, the proposed common issue is not certifiable, and this conclusion provides an alternative to the abuse of process argument as a reason to dismiss the Plaintiffs’ motion.

H. Conclusion

[105] For the above reasons the Plaintiffs’ motion is dismissed.

[106] If the parties cannot agree about the matter of costs, they may make submissions in writing beginning with Uber’s submissions within twenty days of the release of these Reasons for Decision followed by the Plaintiffs’ submissions within a further twenty days.

Perell, J.

Released: March 27, 2023.

[^1]: Shaw v. BCE Inc., 2004 12080 (ON SC), [2003] O.J. No 5481 (S.C.J.). [^2]: S.O. 1992, c. 6. [^3]: S.O. 2000, c. 41. [^4]: Heller v Uber Technologies Inc, 2021 ONSC 5518. [^5]: Heller v Uber Technologies Inc, 2022 ONSC 1997, leave to appeal to the Divisional Court ref’d. [^6]: S.O. 2002, c. 24, Sch B. [^7]: Heller v. Uber Technologies Inc., 2018 ONSC 718. [^8]: Heller v Uber Technologies Inc, 2019 ONCA 1. [^9]: 2020 SCC 16, aff’g 2019 ONCA 1, which rev’d 2018 ONSC 718. [^10]: 2011 SCC 15. [^11]: Heller v. Uber Technologies Inc., 2022 ONSC 1996. [^12]: Heller v. Uber Technologies Inc., 2022 ONSC 1998. [^13]: Heller v. Uber Technologies Inc., 2022 ONSC 1997. [^14]: Heller v. Uber Technologies Inc., 2022 ONSC 3949 (Div. Ct.). [^15]: Heller v. Uber Technologies Inc., 2022 ONSC 5202. [^16]: (1843), 67 E.R. 313, 3 Hare 100 (V.C. Ct.). Leading cases on cause of action estoppel and on the rule from Henderson v. Henderson are: Schwartz v. Ontario, 2013 ONSC 7244; Hoque v. Montreal Trust Co. of Canada, 1997 NSCA 153, [1997] N.S.J. No. 430, (C.A.), leave to appeal refused, [1997] S.C.C.A. No. 656; Grandview (Town) v. Doering, 1975 16 (SCC), [1976] 2 S.C.R. 621; Maynard v. Maynard, 1950 3 (SCC), [1951] 1 D.L.R. 241; Hoystead v. Commissioner of Taxation, [1926] A.C. No. 155 (P.C.); Fenerty v. Halifax (City),[1920] N.S.J. No. 13 (C.A.). [^17]: Danyluk v. Ainsworth Technologies Inc., 2001 SCC 44, [2001] 2 S.C.R. 460. [^18]: Toronto (City) v. C.U.P.E., Local 79, 2003 SCC 63, [2003] 3 S.C.R. 77; Canam Enterprises Inc. v. Coles (2000), 2000 8514 (ON CA), 51 O.R. (3d) 481 at paras. 55–56 per Justice Goudge dissenting (C.A.), approved 2002 SCC 63, [2002] 3 S.C.R. 307; House of Spring Gardens Ltd. v. Waite, [1991] 1 Q.B. 241 (C.A.); P.M. Perell, “A Survey of Abuse of Process” [2007] Annual Review of Civil Litigation 243. [^19]: 2003 SCC 63, [2003] 3 S.C.R. 77. [^20]: 2001 SCC 44, [2001] 2 S.C.R. 460. [^21]: See also: Apotex Inc. v. Schering Corp., 2018 ONCA 890; Amtim Capital Inc. v. Appliance Recycling Centres of America, 2014 ONCA 62; Penner v. Niagara (Regional Police Services Board), 2013 SCC 19. [^22]: Fanshawe College v. LG Philips LCD Co., Ltd., 2016 ONSC 3958; Bear v. Merck Frosst Canada & Co., 2011 SKCA 152; Risorto v. State Farm Mutual Automobile Insurance Co., [2009] O.J. No. 820 (Div. Ct.); MacKinnon v. National Money Mart Company, 2006 BCCA 148; Samos Investments Inc v. Pattison, 2004 BCSC 484; Shaw v. BCE Inc., 2004 12080 (ON SC), [2003] O.J. No 5481 (S.C.J.). [^23]: Ferrara v. Lorenzetti, Wolfe Barristers and Solicitors, 2012 ONCA 851 at paras. 33 and 70. [^24]: Central Trust Co. v. Rafuse, 1986 29 (SCC), [1986] 2 S.C.R. 147 at p. 224. [^25]: Murphy v. S.P. Hart Home Inspections, 2018 ONSC 1648; Wong v. Salivan Landscape Ltd., 2016 ONSC 4183 (Master); Galota v. Festival Hall Developments Ltd., 2016 ONCA 585, aff’g 2015 ONSC 6177; Fennell v. Deol, 2016 ONCA 249; Longo v. MacLaren Art Centre Inc., 2014 ONCA 526. [^26]: Madden v. Holy Cross Catholic Secondary School, 2015 ONSC 1773 at para. 17; Lipson v. Cassels Brock & Blackwell LLP, 2013 ONCA 165; Ferrara v. Lorenzetti, Wolfe Barristers and Solicitors, 2012 ONCA 851 at para. 71; Lawless v. Anderson, 2011 ONCA 102 at para. 22; Zapfe v. Barnes (2003), 2003 52159 (ON CA), 66 O.R. (3d) 397 (C.A.); Kenderry-Esprit (Receiver of) v. Burgess, MacDonald, Martin and Younger (2001), 2001 28042 (ON SC), 53 O.R. (3d) 208, at para. 19 (S.C.J.); Smyth v. Waterfall (2000), 2000 16880 (ON CA), 50 O.R. (3d) 481 at para. 8 (C.A.). [^27]: Arcari v. Dawson, 2016 ONCA 715; Lima v. Moya, 2015 ONSC 324 at para. 76, aff’d 2015 ONSC 3605 (Div. Ct.). [^28]: Canning Construction Limited v. Dhillon, 2021 ONSC 665 at para. 37. [^29]: Fontanilla Estate v. Thermo Cool Mechanical, 2016 ONSC 7023; Unegbu v. WFG Securities of Canada Inc., 2015 ONSC 6408, aff’d 2016 ONCA 501 (C.A.); Durham (Regional Municipality) v. Oshawa (City), 2012 ONSC 5803 at paras. 35–41; Bolton Oak Inc. v. McColl-Frontenac Inc., 2011 ONSC 6567 at paras. 12–14; Pepper v. Zellers Inc. (c.o.b. Zellers Pharmacy) (2006), 2006 42355 (ON CA), 83 O.R. (3d) 648 at paras. 20–22 (C.A.); Bhaduria v. Persaud (1998), 1998 14846 (ON SC), 40 O.R. (3d) 140 (Gen. Div.). [^30]: Vu v. Canada (Attorney General); 2021 ONCA 574 at para. 47; Grant Thornton LLP v. New Brunswick 2021 SCC 31; Zeppa v. Woodbridge Heating & Air-Conditioning Ltd., 2019 ONCA 47 at para. 41, leave to appeal ref’d, [2019] S.C.C.A. No. 91. [^31]: Vu v. Canada (Attorney General); 2021 ONCA 574 at para. 49; Lawless v. Anderson, 2011 ONCA 102 at para. 23. [^32]: Ont. Reg. 73/20 (Limitations Periods); Ont. Reg. 457/20 (Limitation Periods). [^33]: Computer Enhancement Corp. v. J.C. Options, 2013 ONSC 4548; Sweda Farms Ltd. v. Ontario Producers, 2011 ONSC 6146; Philippine v. Portugal, 2010 ONSC 956 (Div. Ct.). [^34]: 1990 90 (SCC), [1990] 2 S.C.R. 959. [^35]: Wright v. Horizons ETFS Management (Canada) Inc., 2020 ONCA 337 at para. 57; Amyotrophic Lateral Sclerosis Society of Essex County v. Windsor (City), 2015 ONCA 572; Hollick v. Metropolitan Toronto (Municipality), 2001 SCC 68. [^36]: 176560 Ontario Ltd. v. Great Atlantic & Pacific Co. of Canada Ltd. (2002), 2002 6199 (ON SC), 62 O.R. (3d) 535 at para. 19 (S.C.J.), leave to appeal granted, 2003 36393 (ON SCDC), 64 O.R. (3d) 42 (S.C.J.), aff'd (2004), 2004 16620 (ON SCDC), 70 O.R. (3d) 182 (Div. Ct.); Anderson v. Wilson (1999), 1999 3753 (ON CA), 44 O.R. (3d) 673 at p. 679 (C.A.), leave to appeal to S.C.C. ref'd, [1999] S.C.C.A. No. 476. [^37]: 2011 SCC 42 at paras. 17-25. [^38]: 2020 SCC 19 at para. 87–88. [^39]: Atlantic Lottery Corp. Inc. v. Babstock, 2020 SCC 19 at para. 19. [^40]: Cloud v. Canada (Attorney General) (2004), 2004 45444 (ON CA), 73 O.R. (3d) 401 at para. 41 (C.A.), leave to appeal to the S.C.C. refused, [2005] S.C.C.A. No. 50, rev'g, (2003), 2003 72353 (ON SCDC), 65 O.R. (3d) 492 (Div. Ct.); Hollick v. Toronto (City), 2001 SCC 68 at para. 25; Abdool v. Anaheim Management Ltd. (1995), 1995 5597 (ON SCDC), 21 O.R. (3d) 453 at p. 469 (Div. Ct.). [^41]: Deluca v. Canada (AG), 2016 ONSC 3865; Losier v. Mackay, Mackay & Peters Ltd., 2009 43651 (ON SC), [2009] O.J. No. 3463 at paras. 39-40 (S.C.J.), aff’d 2010 ONCA 613, leave to appeal ref’d [2010] SCCA 438; Grenon v. Canada Revenue Agency, 2016 ABQB 260 at para. 32; Merchant Law Group v. Canada Revenue Agency, 2010 FCA 184 at para. 34. [^42]: Dawson v. Rexcraft Storage & Warehouse Inc. (1998), 1998 4831 (ON CA), 164 D.L.R. (4th) 257 (Ont. C.A.). [^43]: Temelini v. Ontario Provincial Police (Commissioner) (1990), 1990 7000 (ON CA), 73 O.R. (2d) 664 (C.A.). [^44]: Johnson v. Adamson (1981), 1981 1667 (ON CA), 34 O.R. (2d) 236 (C.A.), leave to appeal to the S.C.C. refused (1982), 35 O.R. (2d) 64n. [^45]: Silver v. Imax Corp., 2009 72334 (ON SC), [2009] O.J. No. 5585 (S.C.J.) at para. 20; Silver v. DDJ Canadian High Yield Fund, 2006 21058 (ON SC), [2006] O.J. No. 2503 (S.C.J.). [^46]: Darmar Farms Inc. v. Syngenta Canada Inc., 2019 ONCA 789 at para. 51.