The Law of Work
  • Home
  • About
  • Professor David Doorey
  • Osgoode Hall LLM
  • Books
  • Guest Contributors
  • Useful Links
    • Archive
  • Home
  • About
  • Professor David Doorey
  • Osgoode Hall LLM
  • Books
  • Guest Contributors
  • Useful Links
    • Archive
The Law of Work
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
2
FacebookTwitterLinkedinEmail
David Doorey

Professor Doorey is an Associate Professor of Work Law and Industrial Relations at York University. He is Academic Director of Osgoode Hall Law School’s executive LLM Program in Labour and Employment Law and a Senior Research Associate at Harvard Law School’s Labor and Worklife Program. Professor Doorey is a graduate of Osgoode Hall Law School (LL.B., Ph.D), London School of Economics (LLM Labour Law), and the University of Toronto (B.A., M.I.R.).

Leave a Comment Cancel Reply

You must be logged in to post a 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

Models of Broader-Based Sectoral Collective Bargaining

February 3, 2023

Is Memorial University Illegally Preventing Workers from Joining...

February 2, 2023

What Might a Right to Strike for Non-Union...

December 16, 2022

Lessons for the Railway Showdown from a Victory...

November 30, 2022

Court Strikes Down Ontario’s Punitive Public Sector Wage...

November 29, 2022

New Video: Standing Up to the Notwithstanding Clause

November 25, 2022

On the Right to Strike in Canada and...

November 1, 2022

UPDATE: Ontario Invokes Notwithstanding Clause, Crushes Labour Rights...

October 31, 2022

R.O. MacDowell: Who Defines Appropriate Bargaining Units After...

October 10, 2022

(Video) Professor Doorey on ‘Micro Labour Law’ Below...

October 6, 2022

Follow Us On Social Media

Twitter

Latest Tweets

David J. Doorey🇨🇦 @TheLawofWork@mas.to Follow

Law Prof. Talking #labor & #employment #law to the masses. @YorkUniversity @OsgoodeNews @LSELaw @CLJEHarvard @Jacobin @OnLaborBlog https://t.co/5V9r8VPHsh

TheLawofWork
thelawofwork David J. Doorey🇨🇦 @TheLawofWork@mas.to @thelawofwork ·
10h

I can’t believe that Almost Famous came out 23 years ago.

Time is flying by.

Reply on Twitter 1622776388179705859 Retweet on Twitter 1622776388179705859 3 Like on Twitter 1622776388179705859 14 Twitter 1622776388179705859
thelawofwork David J. Doorey🇨🇦 @TheLawofWork@mas.to @thelawofwork ·
11h

I had an LLM student who had a part-time job phantom writing labor arbitration decisions based on arbitrator’s notes and instructions.

Like law clerks do for judges (except parties don’t know about the phantom arb writer).

Is using a machine different? Interesting debate.

Valerio De Stefano @valeriodeste

The crucial part starts on p. 5, where the Court reports the answers to the legal questions they posed to ChatGPT. Then, at the end of p. 6, the Court adopts the arguments given in these answers as grounds for its decision.

Reply on Twitter 1622759377944952834 Retweet on Twitter 1622759377944952834 5 Like on Twitter 1622759377944952834 8 Twitter 1622759377944952834
thelawofwork David J. Doorey🇨🇦 @TheLawofWork@mas.to @thelawofwork ·
12h

Quebec passed anti-scab legislation in 1977, BC in 1993, & Ontario 1993-95.

Hysterical claims that these laws cause job losses & loss of investment aren't supported by evidence. Businesses just don't like them.

Short 🧵

1/

Seamus O'Regan Jr @SeamusORegan

We’re banning replacement workers, as we said on Oct. 19th.

We’re working with unions and employers to get the balance right.

As agreed, government will introduce legislation by the end of this year.

Reply on Twitter 1622745098088861702 Retweet on Twitter 1622745098088861702 16 Like on Twitter 1622745098088861702 39 Twitter 1622745098088861702
Load More

Categories

  • Alberta
  • Artificial Intelligence
  • Australia
  • British Columbia
  • Charter of Rights and Freedoms
  • Childcare
  • Class Action
  • Climate and Just Transition
  • 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
  • Newfoundland
  • Nova Scotia
  • OLRB
  • Ontario
  • Pension Bankruptcy
  • Privacy
  • Public Sector
  • Quebec
  • Real Life Pleadings
  • Saskatchewan
  • Scholarship
  • Sports Labour
  • 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.