Proposed Skip the Dishes lawsuit awaits ruling on Uber

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This article was published 1/11/2019 (930 days ago), so information in it may no longer be current.

A proposed class-action lawsuit from a Winnipeg Skip the Dishes food-delivery driver is on hold while Canada’s highest court decides how to deal with Uber drivers’ attempts to fight for employee benefits.

Last year, Charleen Pokornik, a former local food courier, filed a lawsuit in Manitoba’s Court of Queen’s Bench. It claims Skip the Dishes skirted labour laws by classifying its drivers as independent contractors so it wouldn’t have to follow employment standards or provide benefits.

The lawsuit came after Skip the Dishes notified delivery drivers it was updating its legal terms, forbidding couriers from taking the company to court. The policy came into effect the day after Pokornik’s lawsuit was filed, adding a new dimension to the dispute for the court to untangle.

Lawyers for both sides are waiting to see how a different court battle plays out.

Next week, the Supreme Court of Canada is set to hear the case of an Ontario Uber Eats driver, David Heller, who tried starting a class-action suit against Uber for not providing employee benefits to drivers. Like Skip the Dishes, Uber considers its drivers to be independent contractors, not employees.

Heller’s court challenge was blocked by Uber’s legal terms, which barred workers from taking legal action against the company in favour of out-of-court arbitration. Ontario’s Court of Appeal decided Uber’s arbitration clause was illegal, and the case made its way to the Supreme Court of Canada. The court agreed in May to hear Heller’s case and set the hearing for Nov. 6.

When the Supreme Court judges issue their decision, likely next year, they’ll trigger a ripple effect that’s expected to influence how courts across the country deal with claims from people engaged in so-called precarious work, without full-time salaries, benefits or employment contracts.

"What the Supreme Court rules in that case isn’t going to be determinative of the entire Skip the Dishes claim, but it will clearly be relevant to that claim, so it was just felt that it made sense to wait," said Paul Edwards, a lawyer who represents Pokornik’s proposed class-action suit in Winnipeg.

"The whole gig economy and new employment relationships and how these are working — this is such a hot topic across the western world," he added. "Canada is no exception, and so I think it is beneficial that our Supreme Court is going to really, hopefully, address some of the concerns that arise. So I think we’re all happy about that."

In a statement, Skip the Dishes declined to comment on the court case.

The gig economy hasn’t ballooned in Manitoba, or elsewhere in Canada, cautions David Camfield, associate professor of labour studies and sociology at University of Manitoba.

But insecurity in the labour market is growing, including for so-called independent contractors.

"There’s often this impression that’s given that somehow employees are declining as a percentage of the workforce, and the percentage of people who are engaged in independent contract work is skyrocketing, but the numbers actually don’t show that."

He cited Statistics Canada data that show roughly 15 per cent of Canadians were self-employed in 2016, compared with 12 per cent in 1976.

Still, Camfield says he believes some workers are being improperly classed as independent contractors for employers’ benefit.

"I expect that this is going to be a live issue. It’s not going to go away, because there’s a lot of profit at stake in certain kinds of firms being able to classify certain kinds of people as independent contractors rather than as employees."

The evolution of Canada’s protections for non-standard workers, including independent contractors hired by the federal government, is one of the issues an expert panel was tasked with studying on the government’s behalf earlier this year.

Its recommendations haven’t been released.

Don Genova, president of the Canadian Media Guild’s freelance branch, was part of the panel.

"It was good to see that the federal government actually recognized that there is a growing amount of precarious work out there and that people who are engaged in (it)... need some sort of protection, and hopefully some standardization," he told the Free Press in a phone interview from Toronto.

"There are so many different companies that are contracting things out of house, as opposed to in-house, so I would challenge you to pick any industry that isn’t doing this more now."

katie.may@freepress.mb.ca

Twitter: @thatkatiemay