Case In Point
Ontario Court Requires “Robust” Notice to Allow Class Members to Choose Whether to Opt-Out of Employment Class Action
Date: April 8, 2022
Justice Perell, writing for the Ontario Superior Court of Justice in the ongoing Heller v. Uber class action, required a robust Notice Plan and Notice of Certification to be provided that clearly sets out sufficient information to allow class members to make an informed decision about whether or not to exercise their right to opt-out of the class.
The class action was commenced by persons who entered into Service Agreements with Uber to use the company’s apps to provide rider transportation and food delivery services. The plaintiffs’ central claim is that class members were misclassified as independent contractors and are in fact employees, such that they entitled to the protection of the Employment Standards Act, 2020. After a detour to the Supreme Court, Justice Perell certified the class action against defendants (collectively, “Uber”) in August 2021.
When a class action is certified in Ontario, the representative plaintiff generally provides notice to class members based on directions provided by the certification motion judge. Typically, notice to class members will be provided through direct contact (i.e. letters or email) or by advertisements (i.e. in magazines or newspapers).
Here, Justice Perell faced a dispute between the parties about the content of the Notice of Certification to be disseminated to the class members and about the notice plan.
In this recent motion decision, Justice Perell found that class members “may wish to exercise their right to opt-out, particularly because they may not wish to sue the defendant at all and they may not wish to be bound by a judgment or settlement reached by the Plaintiffs. Some Class Members may wish their individual status to continue.” For subjective or financial reasons, some independent contractors may not wish to be bound by a court order which finds them to be employees of Uber.
As a result, Justice Perell agreed with Uber that the content of the Notice Plan and Notice should be “robust” and contain sufficient information to permit putative class members to make an informed decision about whether or not they should opt-out of the class proceeding. He also agreed with Uber that the Notice should be widely distributed in a manner sensitive to language and diversity.
Justice Perell concluded that class members would be better served by the additional language proposed by Uber for the Notices as it was necessary for them to make an informed decision about whether they should opt out. “Class members need to understand,” Justice Perell wrote, “that this is not an everything to gain but nothing to risk type of class action.”
This decision is significant for employers facing potential or proposed misclassification of employment class actions. The requirement for a robust notice plan in this case reflects the reality that some independent contractors specifically choose that status and may therefore wish to opt-out of misclassification class actions which might otherwise interfere with their freedom to contract.
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