370 THE ADVOCATE
VOL. 79 PART 3 MAY 2021
The current regulatory model set out in the Passenger Transportation Act81
does not require ride-hailing companies to ensure that their drivers are covered
by the BC ESA. Undoubtedly, as has been witnessed in many other
jurisdictions, employment standards complaints and union organizing
drives will likely serve as the catalyst for an ultimate decision regarding the
drivers’ legal status. As Uber itself observed in its 2019 annual report: “any
such reclassification from independent contractor to employee would
require us to fundamentally change our business model, and consequently
have an adverse effect on our business and financial condition”.82 If drivers
for ride-hailing companies were to be legally characterized as employees,
that might also unleash intense lobbying pressure by these companies as
was recently observed in California.83 This, in turn, might spark a wider
conversation about how employment law should evolve in response to the
growing “gig economy”.
1. 2020 SCC 16 Uber SCC.
2. See Uber Technologies, Inc, 2019 Annual Report,
3. Although a large number of companies have entered
the ride-hailing market, Uber, and its chief competitor
Lyft, Inc, are the dominant players in North America
and Europe. Uber currently has sixty-eight per
cent of the US market, with Lyft holding thirty-two per
cent (see Liyin Yeo, “Uber vs Lyft: Who’s Tops in the
Battle of U.S. Rideshare Companies” (18 February
2021), online: <secondmeasure.com/datapoints/
rideshare-industry-overview/>). Lyft also hemorrhages
money. Despite consistent revenue growth
since its inception in 2012, it has never been profitable.
In 2019, Lyft generated $3.6 billion in revenues
but suffered a $2.7 billion operating loss (see
Lyft, Inc., Annual Report 2019, online: <investor.lyft.
4. Uber Eats is a Canadian trademark owned by Uber
Technologies, Inc (filed in June 2015 and registered
in January 2019).
5. See Uber, “Terms and Conditions”, online: <www.
6. Supra note 2 at 13. Lyft’s 2019 annual report paints
a similarly bleak picture (see supra note 3 at 18, 23,
26, 51–52, 107).
7. Uber v Aslam and others, 2018 EWCA Civ 2748,
aff’d 2021 UKSC 5.
8. Complaint for Injunctive Relief, Restitution, and
Penalties in California v Uber and Lyft (Superior
Court of the State of California, County of San Francisco),
9. See Complaint for Declaratory Judgment, Massachusetts
v Uber and Lyft (Massachusetts Superior Court),
10. Chris Opfer, “Uber Hit with $650 Million Employment
Tax Bill in New Jersey”, Bloomberg Law (14
November 2019), online: <news.bloomberglaw.
11. United Food and Commercial Workers International
Union (UFCW Canada) v Uber Canada Inc, 2020
CanLII 3649, application for reconsideration dismissed
2020 CanLII 93834.
12. The proposed class includes all Uber drivers in
Ontario who worked for any of the various Uber
services (e.g., “Uber Eats”, “UberX”, “UberSelect”,
“Uber Black”) since 2012.
13. Employment Standards Act, 2000, SO 2000, c 41
14. Assuming Mr Heller to be single with no dependents,
and with total vehicle operating expenses of about
$5,000 ($0.50 per kilometer for 10,000 kilometers),
his net of tax annual income (calculated at 2018 tax
rates) ranged from about $13,000 to $21,000.
15. Under ss 97 and 98 of the Ont ESA, an employee
seeking unpaid wages may file a complaint or commence
a civil action, but cannot do both. Recent
Ontario class actions seeking ESA benefits include
Rallis v Approval Team Inc, 2020 ONSC 4197
(online auto loans company salespersons); Walmsley
v 2016169 Ontario Inc, 2020 ONSC 1416 (private
educational academy teachers); and Berg v Canadian
Hockey League, 2019 ONSC 210 (major junior
16. Heller v Uber Technologies Inc, 2018 ONSC 718
17. Ibid at para 25.
/2020-05-05 - Filed Complaint.pdf