In Ontario, if your boss refuses to pay the minimum wage or violates your other employment rights, you can go to court or contact the Ministry of Labour. But can your boss make you sign an agreement to give up that right?
On November 6, 2019, the Supreme Court of Canada will hear the case of Uber drivers who were forced to accept a “mandatory arbitration agreement” when they signed up to be drivers on the Uber app. According to Uber, this means that the drivers have given up the right to complain to the government if they have any disputes with the company. Instead, they must go before a private decision-maker in Amsterdam – in a process that is both secret and expensive.
The Income Security Advocacy Centre (ISAC) and Parkdale Community Legal Services (PCLS) have teamed up to intervene in the case to argue that the workers’ right to seek justice in our public institutions cannot be signed away or privatized. Otherwise, employers may be able to sidestep Ontario’s laws that guarantee workplace rights.
The consequences of mandatory arbitration agreements would be serious, especially for low-wage precarious workers. These workers are already more likely to experience illegal working conditions and are also more likely to find it difficult to navigate the legal system. If they are shut out from our public institutions and forced into the unfamiliar world of private arbitration, where the laws of Ontario may not be applied, they will be left even more vulnerable.
For more information on this case, read our blog post about the decision of the Court of Appeal for Ontario, which is being appealed to the Supreme Court.
On Wednesday, November 6, 2019, ISAC’s lawyer Nabila Qureshi will argue at the Supreme Court that employers should not be permitted to impose mandatory arbitration agreements on their workers.
A video of the live-stream is here.
To read our legal argument, click here.
The Supreme Court’s Decision:
In a ground-breaking decision, the Supreme Court of Canada made it easier for workers to challenge unfair contractual terms imposed by companies that hire them, whether or not they are in a formal employment relationship. The court sided with Uber drivers and reached a decision that addresses the concerns about access to justice highlighted by ISAC and PCLS in their submission before the court.
The decision in Uber Technologies Inc. v. Heller is a win for drivers who were forced to accept a standard “mandatory arbitration agreement” when they signed up on the Uber app. According to Uber, this meant that the drivers could no longer go to court or the Ministry of Labour with workplace disputes. Instead, they would have to go before a private decision-maker in Amsterdam, in a process that is both secret and expensive. In a 8-1 decision, the Supreme Court decided that the agreement could not stand, and the drivers could go ahead with a class action to determine whether they are employees.
“This decision strengthens protections for workers who may be taken advantage of by the companies that hire them,” said John No, staff lawyer at PCLS. “To show that an agreement was unconscionable and therefore invalid, a worker will no longer be required to prove that their employer knowingly took advantage of the worker’s vulnerable status. This is an important victory for workers.”
In an earlier decision in this case, the Court of Appeal for Ontario had found that mandatory arbitration agreements imposed by employers are always illegal because they violate Ontario’s Employment Standards Act. The Supreme Court did not disagree with that ruling, but left that issue to be determined on another day.