Law Times

January 7, 2019

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Page 2 January 7, 2019 • Law Times who was not involved in the case, says that the decision may create tension as employment lawyers aim to frame arbitration clauses for workers that might allege that they are employees, rather than independent con- tractors, which is how Uber classifies drivers in some areas. "The interesting part for employment lawyers is, if we want arbitration clauses in the agreement, how do we draft the arbitration clause in such a way that it doesn't offend the ESA? I think we are going to see fights over that," says Bawden. Arbitration can be an expedi- tious way to solve employment disputes but it is also important that courts give unconsciona- bility some "teeth," says Alyssa Tomkins, a partner at Caza Saikaley LLP in Ottawa who was not involved in the case. "The fact that the court is ap- plying the doctrine of uncon- scionability in a situation like this is a very good development in the jurisprudence," says Tom- kins. "But [at] the same time, it needs to be recognized that the decision really did turn on some specific facts. So, I don't think it means that arbitration clauses largely are unconscionable." LT participate in the arbitration." Heller earns $400 to $600 per week working full time, the de- cision said. "We do not know how the laws of the Netherlands deal with the issues that the appel- lant has raised. We do not know if the laws of the Netherlands would provide greater, lesser, or equal benefits to the appellant, if it is determined that he is an employee," wrote Nordheimer in the decision. "[A]s an Ontario resident he is statutorily entitled to the min- imum benefits and protections of Ontario's laws. He should not be left in a situation where those benefits and protections are set by the laws of another country." Wright highlights two issues at play in the judges' decision that Uber's clause was unenforceable. The first issue, Wright says, was whether the arbitration clause in the user agreement between the driver and Uber "contracted out" of the Employment Standards Act, 2000. The second argument, which Wright says required the appellant to meet a high thresh- old but which was successful on appeal, was whether the clause was unconscionable under the common law. Lior Samfiru, a partner at Samfiru Tumarkin LLP and an- other lawyer on Heller's team, says the arguments boiled down to whether the contractual provisions take away workers' rights to seek recourse through the Ontario courts and govern- ment, and whether there was an imbalance of bargaining power between Uber and the workers. "I can give you all the rights in the world, but if you don't have the mechanism to pursue those rights, they are completely meaningless," says Samfiru, who splits his practice between Ot- tawa, Toronto and Vancouver. Samfiru says he thinks the de- cision will "have significant im- pact in this province and beyond." "I think it sends a clear mes- sage to companies, especially those companies that come from other jurisdictions, that if they are going to operate in here — in Ontario — they have to abide by Ontario laws. They have to play by the same rules as everyone else [and] cannot deprive those in this province of their established legal rights." The respondent companies affiliated with Uber will pay Heller $20,000 in costs, the de- cision said. An Uber spokesman says the company is reviewing the deci- sion. "We are proud to offer a f lexible earning opportunity to tens of thousands of drivers throughout Ontario," he said in an e-mail on the company's behalf. Torys LLP lawyers Lisa Talbot and Sarah Whitmore, who represented defendants Uber Technologies Inc., Uber Canada, Inc., Uber BV and Rasier Operations BV, declined to comment. Sean Bawden, a partner at Kelly Santini LLP in Ottawa honest but mistaken belief in consent. e trial judge ruled that the past sexual history was admis- sible for "context" and gave in- structions to the jury on the lim- ited use of this evidence. e Alberta Court of Appeal, in a 2-1 decision, quashed the acquittal and ordered a new trial on the grounds that the only pur- pose of admitting the evidence was to suggest the complainant was more likely to have consent- ed, which is prohibited by section 276 of the Criminal Code. Justice Ronald Berger, in dis- sent, suggested that misleading the jury about the past sexual history in this case was unfair to the defendant. Mike Kruse, a criminal de- fence lawyer who frequently acts for clients charged with sexual assault, says guidance from the Supreme Court on relationship evidence would assist all parties. "It could clear up a lot of litigation on these issues," says Kruse, who heads Kruse Law in Toronto and other southern Ontario locations. Megan Savard, a partner at Addario Law Group LLP and Colleen McKeown, a lawyer at Daniel Brown Law LLP are act- ing for the CLA in Goldfinch. "e section 276 regime cre- ates a screening mechanism to enhance trial fairness, not a sub- stantive rule that excludes oth- erwise relevant evidence," they write, in the intervener applica- tion to the Supreme Court. e conclusion of the ma- jority of the Alberta Court of Appeal panel that relationship evidence is ordinarily inadmis- sible when introduced as narra- tive, should be rejected the CLA argues. "Categorizing relationship evidence as narrative or context obscures its true relevance to the issues of consent, credibility and honest but mistaken belief," they write. "Like other circumstantial evidence, relationship evidence may help the jury assess the par- ties' conflicting accounts." e Ministry of the Attorney General, in its intervener appli- cation, warns against admitting evidence that may easily lead to prohibited reasoning by a jury. "Bare assertions by the ac- cused that sexual activity must be admitted to counter specu- lation by the jury about the na- ture of the relationship do not meet the test under s. 276," write Crown attorneys Karen Papado- poulos and Jill Witkin. "In the absence of a specific and permissible purpose at trial, any sexual amplification of the relationship between a com- plainant and the accused serves no articulable purpose other than to promote twin myth rea- soning," they add. e province is also asking the Supreme Court to provide direction on relationship evi- dence that occurs aer an al- leged assault. It points to the Ontario Court of Appeal's decision in 2017 in R. v. L.S. which the Crown ar- gues has "improperly" expanded the potential admissibility of this type of evidence. As long as juries receive a "proper limiting instruction" from a judge, they can be trusted to deal with evidence of a prior sexual relationship in a proper fashion, Kruse suggests. "If we don't receive that evi- dence, the version of the accused appears to come out of the blue. It might create a false impression with the jury," says Kruse. e Supreme Court is ex- pected to hear the appeal in R.V. late this spring or early in the fall, aer granting leave to the Crown on December 20. LT NEWS Guidance would assist all parties Continued from page 1 Continued from page 1 Proposed class action can now try for certification Register now and save! There is still time to register for Canada's largest CPD event and save! Register now, and make the most out of your busy schedule by selecting from over 30 programs. Join your peers from across Ontario - online or in person. 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