David Doorey

Written by David Doorey, York University

We have followed on this blog the fascinating and now sad saga involving attempts by #Foodora employees (i.e. delivery drivers) to join the Canadian Union of Public Employers in Toronto.

By way of recap, CUPW filed an application for certification to represent Foodora drivers in late summer 2019. A vote over whether the drivers want collective bargaining was taken but the ballots were all sealed pending the outcome of a series of legal arguments about which, if any, of the drivers were entitled to vote. Foodora responded to the application by arguing that the drivers were not its “employees” and therefore that the Ontario Labour Relations Act, which protects employees’ rights to unionize, did not apply. In a decision released on February 25, 2020, the OLRB ruled that the drivers are “employees” and therefore entitled to unionize. The remaining legal issues were then set down for litigation.

However, on April 27, 2020, almost 2 months to the day after the release of the OLRB’s decision, Foodora Canada suddenly announced that it was puling up stakes from Canada altogether effective May 11 (yesterday). A couple of days later, on April 29, Foodora filed for bankruptcy in Canada. As I noted in my earlier post, Foodora’s behaviour in Canada bears striking similarities to its conduct in Australia last year, where it also suddenly bolted once its business model of characterizing its drivers as “independent contractors” came under threat by legal proceedings. There too, Foodora filed for the Australian equivalent of bankruptcy protection.

I noted in my post that it seemed likely that CUPW would file an unfair labour practice alleging that the decision to leave Canada was influenced by the real threat that its drivers could unionize. That complaint was filed by CUPW on April 29. As part of our Real Life Pleadings series that we post for educational purposes, we are posting the union’s pleadings in this complaint. Thanks to CUPW and its lawyer Ryan White of Cavalluzzo for permission to post:

Here are the union’s Schedule A (summary of requested orders) and Schedule B (summary of material facts) in the case.

 

In a nutshell, the union argues that Foodora’s business was doing well during COVID19, that Toronto and Canada were targeted areas of growth for Foodora and that the workforce was in fact growing in Toronto, that Foodora as a global corporation was doing very well, and that despite all of this, the decision to suddenly pull out of Canada came just 2 months after the OLRB decision finding that Foodora drivers are “employees” of Foodora in a pattern similar to that which occurred in Australia.

As I have noted many times before on this blog and elsewhere, in my now lengthy experience observing cases like this, I can say that labour boards in Canada don’t like coincidences. The burden of proof rests with Foodora to persuade the OLRB that its sudden decision to pull out of Canada has absolutely nothing to do with the fact that the Board had just recently ruled that its drivers can unionize. In my opinion, that is a difficult burden to meet in this case. We will watch this case carefully. There is a decent chance that Foodora will want to settle the case by throwing some money at the union and the employees rather than risk a highly publicized decision that it is a law-breaker.

Check out the list of remedial requests in CUPW’s Schedule A. It includes compensation to drivers and the union, as well as “reinstatement” of the drivers. What do you think about the requested remedies?

For some background on how the OLRB deals with the situation of a decision of a business to close down entirely to avoid unionization, consider the classic case of Academy of Management from the 1970s, which involves the closure of a call centre shortly after a strike began. The OLRB considered arguments that the employer should be ordered to “re-open” the business as well as compensation to the union and employees who lost their jobs:

David Doorey, “CUPW Alleges that #Foodora Acted Unlawfully by Pulling Out of Canada. Here’s the Complaint” Canadian Law of Work Forum (May 12 2020): http://lawofwork.ca/?p=12484