Foodora Couriers Have a Legal Right to Unionize According to the Ontario Labour Relations Board

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The Ontario Labour Relations Board (the “Board”) released its decision regarding an application for certification filed by Canadian Union of Postal Workers (“CUPW”) seeking to be the exclusive bargaining agent for a group of couriers working in Toronto and Mississauga for Foodora Inc. (“Foodora”).

In Canadian Union of Postal Workers v. Foodora Inc.,[1] Foodora challenged CUPW’s application for certification by arguing that the couriers were independent contractors and therefore, cannot be permitted to unionize in Ontario. Disagreeing with the employer, Vice-Chair Wilson ruled that the Foodora couriers were “a mere cog in the wheel that is powered by Foodora.”[2] The Board recognized the Foodora couriers as being dependent contractors – a category of worker that falls between an employee and an independent contractor. By categorizing the Foodora couriers as dependent contractors, the Board determined that they have a legal right to unionize.

Moreover, the Board rejected Foodora’s argument that its couriers were independent contractors because they were capable of dual apping (i.e. working for Foodora and simultaneously logging in with another food-based app, to make deliveries). The Board reasoned that this is less like an entrepreneurial activity and more akin to working multiple part-time or casual jobs where the employee decides the most desirable place to work at a particular time. It analogized dual-apping to the fact that “[i]f a bartender wants to work at night because there are more tips, it would not influence the classification of the bartender as an employee.”[3]

In reviewing the evidence before it, the Board determined that the Foodora couriers have little opportunity to act as true entrepreneurs such that they should be categorized as independent contractors. The couriers are selected by Foodora and required to deliver food on the terms and conditions determined by Foodora in accordance with standards set by Foodora. As a result, the Board reasoned that the couriers work for Foodora, and not for themselves.[4]

This decision is significant for employers in that it is the first decision with respect to workers in what has been described by the parties and the media as “the gig economy”.[5] Had the Board determined that the Foodora couriers were independent contractors, they would not have a legal right to unionize.

If you have any questions regarding “the gig economy” and the impact of this decision on your workplace, please do not hesitate to contact one of the members of our Labour & Employment group.

[1] (2020) OLRB Case No: 1346-19-R (“Foodora”).

[2]Foodora, supra note 1, at para. 107.

[3]Foodora, supra note 1, at para. 111.

[4]Foodora, supra note 1, at para. 171.

[5]Foodora, supra note 1, at para. 172.

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