366 THE ADVOCATE
VOL. 79 PART 3 MAY 2021
ments (including overtime) set out in the BC ESA constituted implied contractual
terms that could be enforced by a civil court action for breach of
contract.33
The B.C. Court of Appeal unanimously rejected the chambers judge’s
“implied term” analysis. The appeal court observed that civil actions to
enforce purely statutory rights are generally not permitted,34 and that the
BC ESA is “a complete code for the granting and enforcement of statutorilyconferred
benefits”.35 The court held that s. 118 only authorizes civil proceedings
regarding claims not predicated on the provisions of the BC ESA,
and that insofar as Ms. Macaraeg’s overtime claim was concerned, “the ESA
provides a complete and effective administrative structure for granting and
enforcing rights to employees and there is no intention that such rights
could be enforced in a civil action”.36 The SCC dismissed Ms. Macaraeg’s
application for leave to appeal.37
Although Macaraeg has been followed in Nova Scotia38 and Manitoba,39 it
has been rejected in those jurisdictions (such as Ontario and under the federal
Canada Labour Code) where the employment standards statute contemplates
civil court actions to enforce statutory benefits.40 Further, the rationale
underlying Macaraeg (statutory benefits cannot be enforced by a civil court
action) has been questioned in decisions emanating from other Canadian
jurisdictions.41 Nevertheless, Macaraeg reflects the current state of the law in
British Columbia. That being the case, if Uber drivers (and other drivers
working through similar online platforms) assert that they are employees
entitled to the statutory benefits set out in the BC ESA, those claims will
likely have to be filed as s. 74 complaints under the statute.42 Alternatively,
a group of drivers could seek union representation under the B.C. Labour
Relations Code43 (the “BC LRC”), in which case they could argue that even if
they are not “employees” under the BC ESA, they are “dependent contractors”
44 (these workers are deemed to be “employees” under the BC LRC).
The BC ESA: Employee or Independent Contractor?
If an Uber driver were to file a complaint with the B.C. Employment Standards
Branch, the threshold question would be whether the driver is, as is
stated in the driver’s contract, an independent contractor, or an “employee”.
Although the Uber driver’s contract defines the relationship between the
parties as an independent contracting relationship (as does the Lyft agreement45),
that statement does not determine the legal status of the drivers.
To date, no Canadian court or employment tribunal has ruled that Uber
drivers are employees, though that issue will undoubtedly prove contentious
and may require a decision from the SCC (perhaps five to ten years
from now) before it is finally resolved.