Entering a Legal Void: Independent Contractors and Class Actions Post-heller

• Author: Nora Parker
• Pages: 25-50

25

Entering a Legal Void: Independent Contractors and

Class Actions Post-Heller

Nora Parker

ABSTRACT:This paper examines recent developments in the area of mis-

classif‌ication class actions, specif‌ically looking to the viability of arbitra-

tion clauses as explored in Heller v Uber Technologies Inc, 2018 ONSC 718,

2019 ONCA 1. While the lower court upheld Uber’s arbitration clause and

stayed the proposed class action in favour of arbitration in the Nether-

lands, the stay was lifted on appeal. The Heller case provides an oppor-

tunity to consider both the broader implications of the use of arbitration

clauses in employment contracts and the challenge this development

poses to the very function of class actions as a means of increasing access

to justice. If employers use arbitration clauses more frequently, and if the

judiciary remains bound by decisions which have recently favoured arbi-

tration clauses, thousands of workers will be left with no remedy for mis-

classif‌ication. Far from being deemed preferable (as has been previously

argued), class actions will become an impossible means for independent

contractors to seek remedies. Since independent contractors also fall

outside the protections of the Employment Standards Act, 2000 (ESA), they

will be left in a legal void. This paper examines how the rise of arbitra-

tion clauses and boilerplate in employment contracts interacts with the

ef‌fectiveness of class actions to increase access to justice, prompt behav-

ioural modif‌ication, and improve judicial eciency. It concludes by of‌fer-

ing several solutions, most strongly urging the legislature to examine and

clarify section 5(1) of the ESA, which states that an employee cannot con-

tract out of the employment standards guaranteed under the ESA.