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CONTRACT OF EMPLOYMENT - Express terms - Arbitration and mediation

Wednesday, March 07, 2018 @ 8:29 AM  


Lexis Advance® Quicklaw®
Motion by the defendants, Uber Technologies et al (Uber), to stay the plaintiff Heller’s action in favour of arbitration in the Netherlands. Uber developed computer software applications (apps) for GPS-enabled smartphones. The apps transformed the transportation business, most particularly the taxi and limousine business and the restaurant delivery business. The plaintiff Heller was a resident of Ontario. He entered into several contracts with Uber and, using the Uber apps, he delivered food from restaurants to consumers. He brought a proposed class action on behalf of Uber drivers and alleged that he and his fellow putative class members were employees of Uber and entitled to the benefits of Ontario’s Employment Standards Act. Heller was seeking, among other things, a declaration that Uber had violated the Employment Standards Act. If the action was certified as a class action, he was seeking $400 million in damages for the class. The agreements between Heller and Uber included an agreement to arbitrate disputes. Heller took the position that since his proposed class action was about an alleged employment relationship, it could not be stayed because that issue was outside the jurisdiction of the arbitrator to decide. Uber took the position that, in accordance with the Competence-Competence Principle, it was for the arbitrator to decide whether he or she had jurisdiction, save for limited circumstances, none of which applied to the case at bar.

HELD: Motion allowed. The International Commercial Arbitration Act was the applicable statute. The issue of whether employment claims were arbitrable was an issue subject to the Competence-Competence Principle. It was a complex issue of mixed fact and law to be determined in the first instance by the arbitrator. It was not a simple matter of statutory interpretation to be resolved by the court. Furthermore, none of the exceptions to a stay and referral to arbitration applied. While there was an inequality of bargaining power, Uber did not take advantage of Heller and did not extract an improvident agreement by inserting an arbitration provision.

Heller v. Uber Technologies Inc., [2018] O.J. No. 502, Ontario Superior Court of Justice, P.M. Perell J., January 30, 2018. Digest No. TLD-Mar52018005