Proposed class-action against Skip the Dishes moving forward after Supreme Court's Uber ruling

A proposed class-action lawsuit against Winnipeg-based food delivery service Skip the Dishes can now move forward through Manitoba courts, after the Supreme Court of Canada reached a decision last month in a similar case involving an Ontario Uber Eats driver.

The lawsuit, filed by former Skip the Dishes courier Charleen Pokornik in Manitoba's Court of Queen's Bench in summer of 2018, argues the company misled its drivers by classifying them as independent contractors rather than employees, allowing it to avoid labour laws covering minimum wages, paid sick leave and other benefits. 

Pokornik and her lawyers were seeking class-action certification, but the court process was put on hold last year after the Supreme Court agreed to hear a case brought forward by Uber Eats driver David Heller.

Like Pokornik, Heller argues Uber has violated the rights of its drivers by misclassifying them as independent contractors. He is also seeking class-action certification. 

The Supreme Court decision, released on June 26, doesn't deal with whether or not Uber drivers are employees or independent contractors.

Instead, it determined that drivers can seek legal recourse through Ontario's court system, rather than going through an arbitration process mandated by Uber and based in the Netherlands.  

In July 2018, days before Pokornik filed her statement of claim, Skip the Dishes gave notice to its drivers that it was changing their contract, requiring them to go through arbitration instead of the courts to resolve disputes. The changes were stated to go into effect the day after Pokornik filed her claim.

The new contract also stipulated that any action must be brought individually, and not as part of a class. 

Now that the Supreme Court has ruled in the Uber case, the Skip the Dishes case is set to move to a case management hearing in mid-September, says a lawyer representing Pokornik's class-action application.

"The impact of the Supreme Court decision will be a matter of debate between the parties on the Skip the Dishes action, because the facts, of course, are not identical," Paul Edwards said.

"But what … we're grateful for, is the Supreme Court has engaged in this issue, and the issues arising from the gig economy, which affects so many people in this country."

A spokesperson for Skip the Dishes declined to comment, as the case is before the court.

If the court decides that Skip drivers are in fact employees and not private contractors, the company could be required to pay drivers retroactively for lost wages, overtime, vacation pay and more.