The news media has widely reported the Ontario Court of
Appeal's January 3, 2019 decision allowing a class-action
by Uber drivers to proceed. The decision does not answer the
question of whether Uber (and UberEATS) drivers should be
considered employees or independent contractors (a conclusion that
could have wide-ranging implications for employers that rely on
independent contractor agreements). However, one aspect of the
decision may have an immediate impact on employers in Ontario
– the Court of Appeal's finding that Uber's
arbitration clause amounted to an unlawful "contracting
out" of Ontario's Employment Standards Act, 2000
(the "ESA").
Under section 5(1) of the ESA, any clause in an
employment agreement that contracts out of or waives an
"employment standard" is unenforceable. The ESA
defines "Employment standards" as being "a
requirement or prohibition [...] that applies to an employer for
the benefit of an employee".
