Canadian Law of Work Forum (CLWF)
  • Home
  • About
    • Professor David Doorey
  • Guest Contributors
  • Useful Links
    • Archive
  • Submissions
  • Student Blog Initiative
  • Home
  • About
    • Professor David Doorey
  • Guest Contributors
  • Useful Links
    • Archive
  • Submissions
  • Student Blog Initiative
Canadian Law of Work Forum (CLWF)
AustraliaGig WorkReal Life PleadingsUnions and Collective Bargaining

CUPW Alleges that #Foodora Acted Unlawfully by Pulling Out of Canada. Here’s the Complaint.

by David Doorey May 12, 2020
written by David Doorey May 12, 2020

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.

  • How the OLRB Ruled Foodora Workers are “Employees” and Not Independent Contracts, by Ryan White and Amelia Philpott
  • Thoughts on the Foodora Fiasco: Have Labour Laws Been Violated?, by David Doorey
  • Foodora Canada Saga Highlights the Failure of Canada’s Workplace Protection Regimes, by Josh Mandryk

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:

  • Communications Workers of Canada v. Academy of Medicine, 1977 CanLII 446 (ON LRB)
  • Communications Workers of Canada v. Academy of Medicine, 1978 CanLII 1235 (ON LRB)

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

0 comment
1
FacebookTwitterLinkedinEmail
David Doorey

Professor Doorey is an Associate Professor of Work Law and Industrial Relations at York University. He is the Director of the School of HRM at York and Director of Osgoode Hall Law School’s executive LLM Program in Labour and Employment Law and on the Advisory Board of the Osgoode Certificate program in Labour Law. He is a Senior Research Associate at Harvard Law School’s Labor and Worklife Program and a member of the International Advisory Committee on Harvard University’s Clean Slate Project, which is re-imaging labor law for the 21st century

Leave a Comment Cancel Reply

Save my name, email, and website in this browser for the next time I comment.

previous post
Saskatchewan: The long arms of the law still denying Unifor Local 594 members the ability to obtain a collective agreement
next post
Supreme Court of Canada on Employment Status, Franchising, and the Quebec Decree Model

You may also like

Real Pleadings: Has Uber Created a New Service...

February 15, 2021

Prof. Doorey’s Updated Beginners’ Guide to the Charter...

February 1, 2021

Calling the Shots: Is Mandatory COVID-19 Vaccination a...

January 29, 2021

What is a Minority Union?

January 4, 2021

Canadian Bar Association Podcast: “After the Pandemic: Protecting...

December 17, 2020

David Doorey on Jacobin: “Collective Bargaining Needs a...

December 16, 2020

Arbitrator: Employees Must Get Swabbed for COVID

December 16, 2020

“Autonomous Worker” Regulation

December 1, 2020

Reflecting on the Use of Neutrality Agreements in...

November 27, 2020

Video: Prof. David Doorey and Lawyer Ryan White...

November 26, 2020

Subscribe via Email

Enter your email address to subscribe and receive notifications of new posts by email.

Join 219 other subscribers

Follow Us On Social Media

Twitter

Latest Tweets

CLWFFollow

CLWF
Retweet on TwitterCLWF Retweeted
RSandillRicha Sandill@RSandill·
24 Feb

@SCLSclinic and I were so fortunate to represent this client last year. I am thrilled that this decision brings more clarity for family status accommodations rights amidst a pandemic that has tested parents, caregivers, and families like never before. https://twitter.com/CanLawWorkForum/status/1364605259071561730

CLWF@CanLawWorkForum

New from @RSandill (counsel for applicant), discussing important new "family status" discrimination decision from OHRT:

"Kovintharajah v. Paragon Linen & Laundry: When Failure to Accommodate Child Care Needs is “Family Status” Discrimination"

https://lawofwork.ca/13360-2/

Reply on Twitter 1364627677785821185Retweet on Twitter 13646276777858211851Like on Twitter 13646276777858211853Twitter 1364627677785821185
Retweet on TwitterCLWF Retweeted
TheLawofWorkDavid J. Doorey@TheLawofWork·
24 Feb

Here's my latest in @jacobinmag.

If Ontario's labor laws applied in Alabama, the Amazon vote would have been held months ago so workers could get back to their jobs. Instead, the NLRA permits Amazon to conduct a months' long onslaught of anti-union propaganda. https://twitter.com/jacobinmag/status/1364613560425275392

Jacobin@jacobinmag

Amazon workers in Alabama are voting on whether to unionize, but the company is bombarding them with anti-union propaganda. In Canada, by contrast, votes are held quickly, making it harder for companies to stack the deck — a model that can work in the US. http://jacobinmag.com/2021/02/amazon-alabama-canada-labor-law-union-vote

Reply on Twitter 1364623976174092316Retweet on Twitter 13646239761740923168Like on Twitter 136462397617409231613Twitter 1364623976174092316
CanLawWorkForumCLWF@CanLawWorkForum·
24 Feb

New from @RSandill (counsel for applicant), discussing important new "family status" discrimination decision from OHRT:

"Kovintharajah v. Paragon Linen & Laundry: When Failure to Accommodate Child Care Needs is “Family Status” Discrimination"

https://lawofwork.ca/13360-2/

Reply on Twitter 1364605259071561730Retweet on Twitter 13646052590715617304Like on Twitter 13646052590715617304Twitter 1364605259071561730
Load More...

Categories

  • Alberta
  • Artificial Intelligence
  • Australia
  • British Columbia
  • Charter of Rights and Freedoms
  • Childcare
  • Class Action
  • Collective Bargaining
  • Common Law of Employment
  • Comparative Work Law
  • competition law
  • construction
  • COVID-19
  • Diversity
  • Employee Classification
  • Employment Insurance
  • Employment Regulation
  • Europe
  • Financial Industry
  • Fissured Work
  • Freedom of Association
  • frustration of contract
  • Gig Work
  • Health and Safety
  • Health Care
  • Human Rights
  • Immigration
  • Interest Arbitration
  • International Law
  • Labour Arbitration
  • Labour Economics
  • Law of Work Archive
  • Legal Profession
  • Manitoba
  • Migrant Workers
  • Minimum Wage
  • Nova Scotia
  • OLRB
  • Ontario
  • Pension Bankruptcy
  • Privacy
  • Public Sector
  • Quebec
  • Real Life Pleadings
  • Saskatchewan
  • Scholarship
  • Strikes and Lockouts
  • Student Post
  • Supreme Court of Canada
  • technology
  • Transnational Law
  • Uncategorized
  • Unions and Collective Bargaining
  • United States
  • Videos
  • Women and Work
  • Wrongful Dismissal
  • Home
  • About
  • Guest Contributors
Menu
  • Home
  • About
  • Guest Contributors
  • Legal Scholarship
  • Useful Links
  • Archive
Menu
  • Legal Scholarship
  • Useful Links
  • Archive

2020. Canadian Law of Work Forum. All Rights Reserved.