Canada’s highest court has refused to hear an appeal by Skip the Dishes in a potential class-action lawsuit that could ultimately lead to sweeping changes in how workers in the gig economy are treated.
The Supreme Court of Canada on Thursday denied the Winnipeg-based company leave to appeal Manitoba court decisions shooting down Skip’s efforts to enforce a clause in its agreement with drivers that employment disputes must be handled through arbitration, not the court system.
Because of that clause, the courts had no jurisdiction to hear the case, the company unsuccessfully argued.
Following its usual practice, the Supreme Court offered no reasons for declining to hear Skip’s appeal.
The Manitoba Court of King’s Bench lawsuit, filed by former Skip the Dishes courier Charleen Pokornik in 2018, argues the company misled its drivers by classifying them as independent contractors rather than employees, allowing it to avoid labour laws covering minimum wages, paid sick leave and other benefits.
“These are very real things [that] we say, as employees, they are not getting,” said Paul Edwards, a lawyer representing Pokornik’s class-action application.
The case will now return to Manitoba’s superior court, where lawyers for Pokornik will fight for class-action certification involving multiple Canadian jurisdictions, Edwards said in an interview with CBC News on Friday. If that is approved, then a trial on the merits of the case can take place.
Edwards acknowledged the length of time that’s elapsed since the case was initially filed but said the fight is worth it.
“These are keenly contested matters,” said Edwards, describing the power imbalance between individual gig-economy workers and companies as underscoring the need for class-action civil suits.
“The class-action method is the only way these matters get before a court and get dealt with,” he said.
B.C. standards
The legal development in Manitoba comes as British Columbia implements new gig-worker regulations on Tuesday.
The legislation implements a minimum wage for “engaged time” and measures for pay transparency for more than 45,000 ride-hailing and delivery workers. The pay standard does not apply when workers are waiting between jobs.
Platform companies will be prohibited from withholding or making deductions from tips. They will also be required to register workers for WorkSafeBC workers’ compensation coverage.
But even with the new regulations, experts have said gig workers don’t have access to all the benefits of the B.C. Employment Standards Act, such as vacation pay, benefits, pensions or employment insurance.
However, B.C.’s new rules define gig workers as employees, giving them some of the same rights as other workers in B.C., experts say — an issue at the very heart of the Pokornik lawsuit in Manitoba.
“I think everybody generally recognizes it’s not a level playing field and these [workers] deserve better,” Edwards said.
The CBC has requested comment from Skip the Dishes. The company is a subsidiary of the Dutch multinational Just Eat Takeaway.
A date for continuing the Manitoba lawsuit has not been set.