By Herbert H. B. Law, Firm: Mathews Dinsdale

The Ontario Labour Relations Board has concluded that couriers for the food delivery service Foodora are employees and not contractors and as a result, are permitted to unionise.

In a ground-breaking decision released on 25 February 2020, the Ontario Labour Relations Board (the ‘Board’) determined that Foodora couriers are employees and, as such, are eligible to apply to unionise Foodora.

Foodora is a technology-based food delivery company. Like many of its competitors, Foodora provides users with the ability to order food from restaurants with a phone app and to have the food delivered by couriers. When the Canadian Union of Postal Workers applied to unionise the couriers, Foodora asserted that these couriers were independent contractors, not employees. By law, independent contractors are not considered employees and cannot apply to unionise.

In reaching its decision, the Board conducted a detailed analysis of the work characteristics of the couriers, noting that the couriers were selected by Foodora, and were required to deliver food on the terms and conditions determined by Foodora and in accordance with Foodora standards. As such, the couriers ‘in a real sense’ were working for Foodora and not themselves.

Following this analysis, the Board ultimately concluded that the work characteristics of the couriers more closely resembled the relationship of an employee than an independent contractor, and therefore fell within the definition of ‘dependent contractors’ under the Labour Relations Act, 1995 (the ‘Act’). Under the Act, dependent contractors are deemed to be employees and permitted to unionise.

This is a significant decision as it is the first decision by a Canadian tribunal to determine whether individuals working in the so-called ‘gig economy’ should be considered employees instead of independent contractors. It is likely that this decision would have significant implications to other similar companies and individuals engaged in the ‘gig economy’.

Also, as the modern workplace continues to evolve and non-standard work arrangements grow increasingly common, this decision may help define the understanding of the definition of an ‘employer’ and an ‘employee’.