In the Ontario Labour Relation Board’s (“OLRB”) first decision concerning workers in the “gig ‎economy”, the OLRB held that Foodora Inc. (“Foodora”) couriers are “dependent contractors” under ‎the Labour Relations Act, 1995 (“LRA”). As dependent contractors, Foodora’s couriers are entitled to ‎organize and be represented by a trade union. ‎

In making its assessment, the OLRB analyzed the facts against OLRB jurisprudence examining the ‎relationships of couriers in various sectors and concluded that “the services performed by Foodora ‎couriers are nothing new”. ‎

The essential question is: do these individuals’ relationships with Foodora more closely resemble ‎employment relationships or those of independent contractors? ‎

In determining that the couriers’ relationships more closely resembled employment relationships, the ‎OLRB held, among other things:‎

  1. ‎Foodora couriers are not permitted to subcontract the delivery services to substitute workers. ‎As such, a Foodora courier is much like an employee who is limited to his/her own skill and ‎labour.
  2. The most important tool used by the courier is the “App” and the “App” is the lynchpin in the ‎food delivery process. Because the App is exclusively developed, owned and controlled by ‎Foodora, a courier more resembles an employee who is permitted to use the company’s ‎software than an independent contractor.‎
  3. Hard work does not equate to “entrepreneurial activity”. A courier’s opportunity to make ‎more money by working harder, faster and more efficiently cannot be conflated with ‎entrepreneurial activity. ‎
  4. The fact that the couriers work for competing service providers while working for Foodora is ‎not determinative of the couriers’ economic dependence on Foodora. What is important is not ‎the actual economic circumstances of the individual courier, but whether the structure of the ‎relationship between the courier and Foodora is such as to draw the conclusion that the terms ‎and conditions of the relationship render the courier economically dependent upon ‎Foodora. A courier working for multiple service providers is not unlike an employee working ‎multiple part-time jobs. The determination of economic dependence or independence must ‎only be made in the context of the courier’s relationship with Foodora. In assessing economic ‎dependence, the OLRB did not confine itself to a numerical measurement because the ‎statutory definition of “dependent contractor” does not call for a numerical measurement.‎
  5. Foodora has the right and ability to steer the couriers’ behaviour and control how the couriers ‎perform the work through a network of incentives and prohibitions. The exercise of control ‎over the couriers lends more favourably to a conclusion that the couriers are dependent ‎contractors.‎
  6. With no ability to negotiate or alter their fees, the Foodora couriers are more like employees ‎who receive a standard wage rate (or piece rate) than independent contractors, who have the ‎ability to vary their fees to suit their needs and/or the environment.‎

This represents a new challenge for the “gig economy” in Ontario as the OLRB has now opened the ‎door for workers in this sector to unionize. It remains to be seen, however, whether unions will be ‎able to offer a sufficient incentive for workers to want to walk through that door. ‎

We encourage employers who regularly engage “independent contractors” to contact counsel to ‎review their agreements, practices and policies with respect to engaging independent contractors to ‎ensure that such individuals are properly classified as independent contractors. ‎

In the meantime, stay tuned for updates as the legal landscape concerning workers in the “gig ‎economy” continues to evolve. ‎