Skip the Dishes changed courier agreement to thwart class-action suit, driver says
Changes were made days before lawsuit filed seeking class certification
Days before a Winnipeg Skip the Dishes courier filed court documents to bring a class-action lawsuit against the online restaurant delivery service, the company changed the terms of its contract with drivers to get them to agree not to join any class action against it.
The lawsuit filed in Manitoba Court of Queen's Bench by Charleen Pokornik — which alleges the company does not fairly compensate its drivers and misled them by telling them they are private contractors instead of employees — was filed on July 25.
CBC News spoke to a Skip courier in Alberta, who said that on July 19, he received a notice that the terms of their courier agreement had changed, and they must agree to the new terms by July 26.
The driver provided CBC News with a copy of the text and screen captions of the new agreement as it appears on a webpage for Skip the Dishes drivers.
Among the changes was a new section, stating "[any] claim you may have must be brought individually...and not as a representative plaintiff or class member, and you will not join such claims...against the Company or any related entity."
Skip the Dishes is trying to shore up, obviously, the wording of its contracts after the fact.- Paul Edwards, lawyer for Charleen Pokornik
The Skip courier, who asked not to be named out of concern for his job, said he noticed the new section, but agreed to the terms because it is his only job. He works 50-60 hours per week, and this month he expects to make between $2,200 and $2,300, before tax and transportation costs.
"I don't have a lawyer, I don't have the money for a lawyer to review things like this before I agree to them," he said. "I live paycheque to paycheque, so I had no choice but to agree to them and continue working."
'Legal validity' of changes in question, lawyer says
Paul Edwards, a lawyer for plaintiff Pokornik, said other Skip the Dishes drivers brought the updated terms to their attention before filing their statement of claim. Although they were already planning on filing their lawsuit, the changes to the employment terms influenced the timing of when they filed.
If a judge agrees to grant the case class certification, all Skip the Dishes couriers would be included unless they explicitly opt out, Edwards said. He said it's unclear what impact the new terms will have.
"The effectiveness, the legal validity of mid-term, unilaterally imposed contractual changes, is an issue that there's lots of legal decisions on and may well come up in the course of this claim," he said.
CBC News contacted Skip the Dishes for comment on this story, but a company spokesperson declined.
"As your questions are pertinent to a matter before the courts, we look forward to responding through the appropriate channels and at the right time," the spokesperson said in an email.
Skip the Dishes has previously stated that it denies the allegations in the statement of claim and told CBC News in an email its drivers are private contractors, not employees.
On Friday, Aug. 10, a notification was sent out to all users of the Skip the Dishes Platform, including couriers, restaurants and customers, stating that the company had updated its terms of service. The updated terms of service also contains a section agreeing to resolve any disputes individually and not as part of a class.
Ontario case could come up
An Ontario court decision in January this year may become relevant if the case makes it before a judge.
In that case, Heller v. Uber, a judge rejected a claim by Uber driver David Heller, who argued that Uber misclassifies its drivers as independent contractors instead of employees, and sought class certification in a lawsuit against the online ride-hailing platform.
In his decision, Ontario Superior Court Justice Paul Perell said the difference between an employee and an independent contractor "is a fact-based determination that depends upon on a variety of factors and not just the written or oral agreement between the parties."
Perell rejected the claim, however, because the agreement between drivers and Uber contained a clause agreeing to resolve any disputes through individual arbitration in the Netherlands.
Stephen Gillman represented Heller in the case. He says he plans to take the case to the Ontario Court of Appeal on Nov. 28.
"This doesn't come up all the time, but it's certainly coming up now. It's a product of our digiconomy. The Manitoba labour code, the Employment Standards Act, hasn't really caught up with new ways that people are working in our economy," Gillman said.
"There's certainly a whiff of bad faith here, but what I suspect Skip the Dishes is trying to stop a class action through an arbitration clause which is precisely the issue that's going before the Ontario Court of Appeal on Nov. 28."
Edwards expects Skip the Dishes will try to use the Ontario case to support its argument, but he said the facts in both cases "are completely different."
"Skip the Dishes is trying to shore up, obviously, the wording of its contracts after the fact," he said.
The courier in Alberta said he thinks the lawsuit against Skip the Dishes has merit.
"Companies need to abide by the law and there's a reason there's a minimum wage in place," he said.