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18. Heller v Uber Technologies Inc, 2019 ONCA 1 Uber
19. Section 5(1) of the Ont ESA states that “no employer
or agent of an employer and no employee or agent
of an employee shall contract out of or waive an
employment standard and any such contracting out
or waiver is void”. This provision is similar to s 4 of
British Columbia’s Employment Standards Act, RSBC
1996, c 113 BC ESA.
20. Uber ONSC, supra note 16 at para 70.
21. Ibid at para 65.
22. Uber ONCA, supra note 18 at para 41.
23. Ibid at para 70.
24. Justice Brown expressly rejected the majority’s
“unconscionability” analysis, stating that the majority
was “vastly expanding the scope of the doctrine’s
application and removing any meaningful constraint”
(Uber SCC, supra note 1 at para 103).
25. Ibid at para 4.
26. Ibid at paras 19, 28. Although the majority concluded,
based on the pleadings, that this was an
employment dispute, they did not make an affirmative
finding that the parties were in an employment
27. Ibid at para 66, but there is no separate requirement
to prove duress or undue influence (para 70).
28. Ibid at para 74. Further, the weaker party is not
required to prove that the stronger party knowingly
or deliberately pressed their advantage (para 85).
29. Ibid at paras 94–95.
30. Ibid at para 97.
31. In British Columbia, ride-hailing is known as a
“transportation network service”, and the industry is
principally regulated by the Passenger Transportation
Board (see online: <www.ptboard.bc.ca/TNS.
htm>). As of the end of February 2021, 23 separate
firms have been approved to operate a ride-hailing
service in British Columbia (the vast majority
approved to operate in greater Vancouver; a few
firms have been approved to operate in Greater Victoria,
the Okanagan and Prince George).
32. 2008 BCCA 182 Macaraeg. See also Bru v AGM
Enterprises Inc, 2008 BCSC 1680; Pedersen v Harbottle
, 2015 BCPC 436; Pommer v Match Converge
Inc, 2016 BCPC 25; and Belanger v Tsetsaut Ventures
Ltd, 2019 BCSC 560. This principle applies with
equal force with respect to the enforcement provisions
of the statute. Accordingly, the courts have no
jurisdiction to enforce unpaid wage claims against
corporate directors under s 96 of the BC ESA, which
states that corporate directors and officers can be
held liable for up to two months’ unpaid wages for
each employee of the corporation (see Canadian-
Automatic Data Processing Services Ltd v Bentley,
2004 BCCA 408; and Bowman v Silverdale Recycling
Ltd, 2010 BCSC 287). Claims for unpaid
wages grounded in a contract, as distinct from arising
solely from the BC ESA, can be pursued by way
of a civil court action (see Colak v UV Systems Technology
Inc, 2007 BCCA 220; Macaraeg, supra;
Ntibarimungu v Vancouver Career College, 2009
BCPC 254; Dominguez v Northland Properties Corporation
, 2012 BCSC 328 Dominguez; and Basyal
v Mac’s Convenience Stores Inc, 2018 BCCA 235
33. Macaraeg v E Care Contact Centers Ltd, 2006 BCSC
34. Macaraeg, supra note 32 at para 73 (“The law is
clear: the general rule is there is no cause of action
at common law to enforce statutorily-conferred
rights. The exception arises when, on a construction
of the legislation as a whole, the court concludes the
legislators intended that statutorily-conferred rights
can be enforced by civil action”).
35. Ibid at para 93.
36. Ibid at para 103.
37. Cori Macaraeg v E Care Contact Centers Ltd, 2008
CanLII 53790 (SCC).
38. Fredericks v 2753014 Canada Inc, 2008 NSSC
39. Rivard v The Assiniboine Credit Union Limited, 2014
40. See e.g. McCracken v Canadian National Railway
Company, 2010 ONSC 4520; Fulawka v Bank of
Nova Scotia, 2012 ONCA 443; and Wyllie v
Larche, 2015 ONSC 4747.
41. See e.g. Kolodziejski v Auto Electric Service Ltd,
1999 CanLII 12264 (Sask CA); Beaulne v Kaverit
Steel & Crane ULC, 2002 ABQB 787; Hutlet v
4093887 Canada Ltd, 2012 MBQB 342, aff’d 2014
MBQB 223, aff’d 2015 MBCA 82 (but cf Rivard v
The Assiniboine Credit Union Limited, 2014 MBQB
30); Walter v Western Hockey League, 2017 ABQB
382 Walter, aff’d 2018 ABCA 188; and Balzer v
Federated Co-operatives Limited, 2018 SKCA 93.
42. In Dominguez, supra note 32, the court certified a
class action brought on behalf of temporary foreign
workers recruited to work at the defendant’s restaurants
even though several of the asserted claims
could have been pursued as complaints under the BC
ESA (indeed, there had been prior BC ESA complaints
that resulted in determinations being issued).
Nevertheless, the court certified the action, noting
among other things that the BC ESA complaint
period had expired, the lack of a formal “class proceeding”
mechanism under the statute, the workers’
vulnerability and the inherent relative advantages of
a class action versus individual BC ESA complaints.
The class action was later settled (Dominguez v
Northland Properties Corporation, 2012 BCSC
2239). In Basyal, supra note 32, the court certified a
claim by temporary foreign workers based on an
assertion that the employer promised, but failed to
provide, certain work (and/or a minimum number of
hours of paid work). This claim could have been pursued
as a s 8 complaint under the BC ESA, but it also
constituted a common law claim for breach of contract
and it was certified as such. A claim to recover
“recruitment fees” from the employer (possibly a s 10
contravention) was dismissed outright as against the