Ontario court rules that Uber can't use arbitration to keep its drivers from suing it

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Originally published at: https://boingboing.net/2019/01/04/gig-economy-fiction.html

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Good for Ontario.

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Go Ontario! Hopefully Uber loses its appeal.

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Uber has no appeal. #dontuber

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I doubt they have much hope.

I’ve been trying to find statistics without any luck, so I can’t back this up with numbers, but my sense is that the odds of getting the Supreme Court to overrule the Ontario Court of Appeals are bad to begin with. Since this deals with employment law, which is provincial jurisdiction, I think the chances are next to none. The Court of Appeals would have had to have made some major mistake of law.

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For anyone who really wants to go down the rabbit hole on this, here’s the Ontario Court of Appeal’s decision.

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Now that I’ve read it, the summary here and the article kind of bury the lede. The OCA did find that the arbitration clause unlawfully outsourced an employment standard. But that decision was reached on the assumption that Uber drivers were “employees” of Uber. The court hasn’t actually ruled on that, so if that was all there was to it, there would be a chance that the court later decides that drivers aren’t employees which would mean the arbitration clause is valid and Uber could force drivers to arbitration.

So the OCA backs this up by saying that even if the Uber drivers aren’t employees, the arbitration clause is unfair and “unconscionable” and the court won’t enforce it. To me, this is the more interesting part of the decision (and probably more vulnerable to appeal).

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Well, the reasoning feels nearly circular*, but I think the point is that the case should proceed before the court regardless. It’s the court’s place to determine whether an arbitration clause is valid. Part of the action is to determine whether the drivers are employees. If the action is successful the arbitration clause is invalid, but if it is not successful then it isn’t invalid (under this particular reasoning). Therefore one of the things the action will determine is whether or not the arbitration clause is invalid. That can’t be sorted out by an arbitrator, it has to be sorted out by the courts.

I don’t think the SC is going to reverse that reasoning.

But as for unconscionability, I think the fact that the biggest sticking points are:

  • that a driver would have to pay more than ten thousand dollars to simply initiate an arbitration, even if it’s only over a few hundred dollars.
  • that the arbitration takes place under foreign law

Neither of those things will sit any better with the supreme court than they did with the court of appeals.

* ETA: It’s not the court that has circular reasoning, it’s that Uber has intentionally tried to put their drivers in a catch-22.

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