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New Uber contract could have chilling effect on class action, says lawyer


TORONTO — Uber Technologies Inc. is trying to keep its Canadian drivers from joining or starting class-action lawsuits against the company — a move that threatens to upend a $400-million fight from drivers wanting to be recognized as employees, says a lawyer.

Employment lawyer Lior Samfiru, who is pursuing the case, said drivers using the platform were asked to sign new contracts days ago that ask them to agree not to pursue class or collective action.

Uber, instead, wants drivers to agree to settle their issues with the company through arbitration or on an individual basis, Samfiru said.

"The drivers get locked out of the Uber app, unless they click accept this new agreement," he said.

"For a driver that is trying to earn a living wage, especially during these difficult times, what are the chances that someone is actually going to read this in detail, understand what it means, understand the options, and make an informed decision?"

Uber said in a statement to The Canadian Press that “with the updated arbitration clause, dispute resolution is now more accessible to drivers, bringing Uber Canada in line with other jurisdictions."

Samfiru, however, worries the contract could have a chilling effect on the class-action he started in 2017 with Ontario Uber Eats driver David Heller.

Heller was hoping to force the San Francisco-based tech giant to recognize drivers as employees and provide them with a minimum wage, vacation pay and other protections under the Employment Standards Act.

Uber fought the case and managed to have it stayed because the company required all disputes it is involved in go through mediation in the Netherlands, where it is incorporated. However, Uber said it recently amended its dispute resolution protocols to allow arbitration to occur in the province or territory where a driver resides and ensure drivers will pay no more to start arbitration than the filing fee to file a lawsuit in court.

Samfiru said mediation costs US$14,500, but Heller was only making between $400 and $600 a week for up to 50 hours of work. That amounted to $20,800 to $31,200 a year before taxes and expenses.

The case made its way to the Supreme Court of Canada, which sided with the drivers and paved the way for them to fight to be recognized as employees.

Samfiru's lawsuit seeks $200 million in compensation and $200 million in punitive damages on behalf of the tens of thousands of Ontario residents who have driven for the ride-sharing service since 2012.

If drivers sign Uber's contract, they'll have to stay out of his class action unless they read some of the contract's fine print and email the company at an address he said was provided to opt out of the clause. 

"I think (Uber) is counting on the fact that most are not going to do that, they're not going to understand that, they're not even going to read it," Samfiru said. 

"They will then have potentially thousands of drivers across the province and beyond who will then be prevented from participating in a class action."

This report by The Canadian Press was first published Aug. 31, 2020.

Tara Deschamps, The Canadian Press

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