Canada: Need An Uber? Yes - To The Netherlands

Last Updated: March 22 2018
Article by Scott Gfeller

Uber is certainly no stranger to Canadian court rooms. In its latest tussle, a $400 million dollar proposed class action in Ontario by Uber "drivers" alleging they are employees of Uber and entitled to the benefits of the Employment Standards Act, 2000, Uber succeeded on its pre-certification motion to stay the proposed class action in favour of arbitration in the Netherlands.‎ The proposed class action (with a class of approximately 20,000 drivers) was motivated by driver pay cuts in late 2016 which are alleged to be upwards of 30-40%. 

This decision is one in an increasingly long line of cases that underscores the limited jurisdiction of the courts to disregard agreements to arbitrate absent a statutory exception. Despite involving a potential employment relationship between the parties, this case is no different and highlights the modern view that arbitration clauses are presumptively valid and enforceable.


Although "Uber" has not yet been added to the official scrabble dictionary, it has become common parlance amongst virtually all generations of urban dwellers. I will therefore refrain from attempting to explain the various iterations of the ride sharing service. Suffice it to say, Uber offers a variety of services including food delivery (UberEats).

In 2016, the class plaintiff, David Heller, entered into various "service agreements" with Raisier Operations B.V. and Uber ‎Portier B.V., both Netherlands companies with offices in Amsterdam. Heller was a driver for UberEats. The service agreements, which are essentially license agreements for the use (by the driver) of the "Driver App" owned by Uber, contained an arbitration clause that requires resolution of certain disputes "arising out of or broadly in connection with or relating to" the service agreements to be submitted first to mediation followed by arbitration (if necessary) in Amsterdam.

There was no issue as to whether Heller (or any of the proposed class) entered into the arbitration agreement. Rather, Heller, for the class, argued that (i) the arbitrator did not have jurisdiction over the dispute because it involved an alleged employment relationship, and (ii) that the agreement to arbitrate was illegal on the basis that it was unconscionable and violated section 3(1) of the Employment Standards Act, 2000 which precludes contracting out of the legislated standards contained in the statute.

The motion

Uber's motion to stay the proposed class action was heard by the Honourable Mr. Justice Perell who released his reasons on January 30, 2018. On the first issue, Justice Perell relied on the fundamental principle espoused by the Supreme Court of Canada in Seidel v. TELUS Communications Inc., 2011 SCC 15, that courts must enforce arbitration agreements unless (i) prohibited by legislation, or (ii) it is clear that the dispute falls outside the arbitration agreement. There is no such prohibition in the ‎Employment Standards Act, 2000. In any event, whether employment claims were indeed arbitrable was a threshold issue which, based on the "competence-competence principal", was for the arbitrator to determine whether it should be excluded from their jurisdiction. Any such challenge should be first resolved by the arbitrator, not the courts, unless the challenge is a pure question of law. In this case, Justice Perell found that it was a complex question of mixed fact and law.

In regard to Heller's second argument, while Justice Perell found that there was "undoubtedly" an inequality of bargaining power between Uber and the drivers, U‎ber‎ did not exploit its position to obtain an improvident bargain nor did the agreement to arbitrate violate section 3(1) of the Employment Standards Act, 2000. As well, Justice Perell did not find the arbitration agreement to be unconscionable.

There was a related issue as to whether the Arbitration Act, 1991 or the International Commercial Arbitration Act, 2017 applied to this dispute. Ultimately, Justice Perell determined that the relationship between the parties may be commercial in nature and was akin to a commercial contract for the use of intellectual property (the Driver App). Accordingly, the International Commercial Arbitration Act, 2017 applied. However, Justice Perell noted that regardless of which Act applied, it had no bearing on the outcome of the motion as the language of either Act supported the decision reached.

Off to the Netherlands...

Heller is not left without a remedy and can challenge the arbitrator's jurisdiction as a preliminary issue in the arbitration. However, given the economic reality of an arbitration in Amsterdam it seems somewhat unlikely that this dispute will ever cross the Atlantic. ‎Nevertheless, this decision is important and is one in a long line of cases where courts are increasingly willing to uphold arbitration clauses, even in an alleged employment contract, unless precluded by statute. Quite frankly, this makes sense in the modern age of alternative dispute resolution and is unlikely to have a chilling effect on the enforcement of statutory employment rights‎ as Heller's position on the pre-certification motion suggested. As Justice Perell noted, it is not for the courts to enact legislation, they merely interpret it. The provincial legislature has restricted the use of arbitration in other contexts (consumer contracts for instance) and presumably if a similar prohibition was meant to apply to all employment contracts, the statute would so provide. Until then, we can expect to see continued reliance on arbitration clauses to limit exposure to class proceedings and individual claims alike.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Similar Articles
Relevancy Powered by MondaqAI
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions