Law Times

Law Times • January 14, 2019 Page 7 www.lawtimesnews.com Putting Heller v. Uber in social context BY FATHIMA CADER 2 019 has already proven itself a rollercoaster year for Ontario workers and their advocates. On Jan. 1, we mourned the freezing of minimum wage at $14 per hour, the repeal of equal-pay-for-equal- work stabilizations, the scrapping of paid sick leave days, and other regressions, im- plemented by Premier Doug Ford in his Making Ontario Open for Business Act. On Jan. 2, we cheered Heller v. Uber Technologies Inc., 2019 ONCA 1, a sig- nificant win in the ongoing fight for sta- ble work in the gig economy. By way of the now well-known backsto- ry, Ontario UberEATS driver David Heller commenced a proposed class action in 2017 challenging Uber's classification of its Ontario drivers as independent contrac- tors. Such classifications are a global hall- mark of the "sharing" economy. Two years ago, Australia's Fair Work Commission held in Kaseris v. Rasier Pacific V.O.F [2017] FWC 6610 that Uber drivers are independent contractors. But last month, the U.K. Court of Appeal held in Uber B.V. & Ors v. Aslam & Ors [2018] EWCA Civ 2748 that Uber drivers are "work- ers," a term in U.K. law that sits between employees and independent contractors. The cases, diverse in their facts and their jurisdiction, are unified by a com- mon goal — Uber drivers want statutory minimums, including minimum wage, termination protections and unemploy- ment insurance. In Ontario, classification as employees would mean Uber drivers could also pursue unionization. As the Ontario Court of Appeal stated in Heller, "The issue of whether persons, in the position of the appellant, are properly consid- ered independent contractors or employees is an important issue for all persons in Ontario." Social platforms will be following these developments closely. Regarding Uber specifi- cally, the Ontario Court of Appeal noted that driving for Uber requires (among other steps) logging into the Uber app and clicking "Yes, I agree" with re- spect to approximately 14 to 15 pages of Uber services agreement text, all present- ed on a smartphone screen. As Justice Ian Nordheimer put it in Heller, "If they [drivers] wish to avail themselves of Uber's services, they have only one choice and that is to click "I agree" with the terms of the contractual relationship that are presented to them." The terms in question stipulate that disputes must be submitted for arbitra- tion in the Netherlands, whereupon the driver will shoulder significant costs in relation to said arbitration. For the Ontario Court of Appeal, this was an access-to-justice issue. It calcu- lated that a driver's "up-front administra- tive/filing-related costs" would total U.S. $14,500, but "[a]s an UberEATS driver, the appellant earns about $20,800 to $31,200 per year, before taxes and expenses." Despite — or because of — this dispar- ity, Uber relied on its arbitration clause to seek a stay of Heller's proposed class action. The company was initially successful. Justice Paul Perell of the Ontario Superior Court of Justice ruled in Heller v. Uber Technologies Inc., 2018 ONSC 718 that challenges to an arbitrator's jurisdic- tion should be resolved by an arbitrator in the Nether- lands. Despite finding that "there undoubtedly was an inequality of bargaining pow- er," Perell also held that the arbitration clauses were not unconscionable. The Ontario Court of Appeal unani- mously found the opposite, holding that Uber's arbitration clauses were invalid because they were unconscionable and separately also because they represented an unlawful contracting out of Ontario's Employment Standards Act, 2000, S.O. 2000, c. 41. Given the existence of Ontar- io's very own Ministry of Labour, the On- tario Court of Appeal rejected the idea of sending Ontarians to another continent for justice. "We do not know how the laws of the Netherlands deal with the issues that the appellant has raised," said the ruling in Heller. "[T]he Arbitration Clause requires each claimant to individually arbitrate his/her claim and to do so in Uber's home jurisdiction, which is otherwise complete- ly unconnected to where the drivers live, and to where they perform their duties. Still further, it requires the rights of the drivers to be determined in accordance with the laws of the Netherlands, not the laws of Ontario, and the drivers are given no information as to what the laws of the Netherlands are," it continued later. On the unconscionability issue, the Court of Appeal did not mince words. "Uber chose this Arbitration Clause in order to favour itself and thus take advan- tage of its drivers, who are clearly vulner- able to the market strength of Uber. It is a reasonable inference that Uber did so knowingly and intentionally," the ruling held. Vulnerable, indeed. Labour exists for these apps because people are forced to look for insecure side-gig "earning oppor- tunities" (to use Uber's phrase) to supple- ment a provincial minimum wage that remains an unliveable wage. As the previous Ministry of Labour noted in its 2017 "Changing Workplaces Review," this is the era of precarious work, one increasingly characterized by part- time, temporary, and/or non-unionized jobs. Contrary to popular belief, this is not a "millennial" whine. Research has shown that low-waged older workers are also at the frontlines of these vulnerabilities, as well workers multiply marginalized by virtue of race, disability, immigration sta- tus, and/or family obligations. It remains to be seen what the rest of the year will bring for Ontario work- ers. A win in Heller's long fight as to the still-pending question of driver employee status would help bring stability to count- less Ontarians — right here in Ontario. LT uFathima Cader practises public interest, employment, human rights, and labour law in Toronto. She can be reached at cader@caderlaw.ca. Foreign guardianship orders need action BY YASMIN M. VINOGRAD T he Ontario legislature is failing in its re- sponsibility to designate prescribed juris- dictions from which courts may recog- nize guardianship orders made outside of Canada. Although s. 86 of the Substitute Decisions Act, 1992 provides a mechanism by which orders made by a court outside of Ontario appointing a guardian of property or of the person may be recognized or "re- sealed" in Ontario, the province has yet to prescribe any other country as a "prescribed jurisdiction" for the purpose of s. 86(2). The result is that only guardianship orders made in other provinces and territories within Canada can be resealed in Ontario using the mecha- nism set out in s. 86 of the SDA. Orders made outside of Canada cannot benefit from the same mechanism. Resealing is a process whereby a jurisdiction recog- nizes or 'reseals' an order made in a different jurisdic- tion. The resealed order is then enforceable in the rec- ognizing jurisdiction. In the context of guardianship orders, this process occurs when an incapable person residing outside of Ontario has assets in Ontario, and serves to allow a guardian appointed outside of Ontario to have access to the assets of the incapable person in Ontario. It does so by applying the provisions of the SDA to the now recognized guardianship. The SDA specifically provides that, "Any person may apply to the court for an order resealing a foreign order that was made in a province or territory of Canada or in a prescribed jurisdiction". It was clearly intended that certain jurisdictions should be designated as prescribed jurisdictions. But, it does not list the "prescribed juris- diction" whose orders may be resealed using the SDA's mechanism. This was left to the Ontario legislature to do by way of regulations. The Ontario legislature has yet to take action to create the list of countries whose orders can be recognized in Ontario using this sec- tion. This leaves Ontario judges with little to no guid- ance on how to effectively apply s. 86 of the SDA when presented with orders made outside of Canada. When faced with this exact issue in Cariello v. Fa- ther Michele Perrella, 2013 ONSC 7605, the court refused to apply section 86 to reseal a guardianship order made in Italy due to a lack of guidance from the province. In the ruling, Justice Ruth Mesbur stated, "It seems to me that unless and until Ontario creates a list of 'pre- scribed jurisdictions' there is simply no legislative basis on which I can apply s. 86." "This is not a case where the statute inadvertently fails to deal with an issue. Here, the province has simply failed to take the regulatory steps necessary to create a list of prescribed jurisdictions to which s. 86 would ap- ply," said the ruling. "I have no idea of the province's intentions in that regard. I fail to see how I can simply assume Ontario would designate Italy as a prescribed jurisdiction when it finally creates a list of prescribed jurisdictions under the SDA. I have no basis to conclude that Ontario has any intention of having s. 86 apply to any jurisdiction other than another Canadian province or territory. Section 86 cannot apply." In light of the Cariello decision, it appears that s. 86 and the mechanism it provides cannot be used to re- seal an order made by a jurisdiction outside of Canada. Without action from the provincial legislature, s. 86 will continue to be an ineffective mechanism of the SDA with respect to orders made outside of Canada. What, then, is a guardian appointed outside of Can- ada to do if the incapable has assets in Canada that need to be accessed? Can the court reseal a foreign guardian- ship order in the absence of a list of prescribed jurisdic- tions? Until the legislature creates a list of prescribed jurisdictions, there are two ways in which this could be addressed. The first is to bring an application to have the guardianship order recognized as a non-monetary order, pursuant to the Supreme Court of Canada's decisions of Morguard Investments Ltd. v. De Sa- voye, [1990] 3 SCR 1077 (SCC), Beals v. Saldanha, [2003] 3 SCR 416, 2003 SCC 72, and Pro Swing Inc. v. Elta Golf Inc., [2006] 2 SCR 612, 2006 SCC 52. As of now, there is no decision that applied the SCC's test of real and substantial connection in the context of a guardianship order. It remains to be seen whether an Ontario court would be open to recognizing a guard- ianship order on that basis and what the Office of the Public Guardian and Trustee's position will be on such an application. The second option is to commence a new guardian- ship application in Ontario. The evidence of incapac- ity in the foreign jurisdiction may be useful in such an application, but it would, most likely, need to be up- dated to ref lect the current status of the incapable and to demonstrate his or her incapacity. The "new" guardianship application will need to conform to Ontario's requirements under the SDA, including the filing of a management plan, service on required persons, and naming of specific respondents in the notice of application. While these are potential options for guardians who need to access assets in Canada under the exist- ing legislation, the simplest and most efficient scenario is for the Ontario legislature to take action and recog- nize the problem Mesbur pointed out in the Cariello decision. Specifying a complete list of countries that would be recognized as prescribed jurisdictions for the purpose of s. 86 is a step that is long overdue in Ontario when it comes to the resealing of foreign guardianship orders. LT uYasmin M. Vinograd is a partner at Merovitz Potechin LLP in Ottawa, practising as a litigator with a focus on estate and commercial litigation. u SPEAKER'S CORNER COMMENT Law Rebooted Fathima Cader

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