Entering A Legal Void: Independent Contractors and Class Actions Post-Heller

Abstract: This paper examines recent developments in the area of misclassification class actions, specifically looking to the viability of arbitration 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 Netherlands, the stay was lifted on appeal. The Heller case provides an opportunity 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 arbitration clauses, thousands of workers will be left with no remedy for misclassification. 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 arbitration clauses and boilerplate in employment contracts interacts with the effectiveness of class actions to increase access to justice, prompt behavioural modification, and improve judicial efficiency. It concludes by offering several solutions, most strongly urging the legislature to examine and clarify section 5(1) of the ESA, which states that an employee cannot contract out of the employment standards guaranteed under the ESA.