Judge rules against Skip the Dishes’ ‘unconscionable’ attempt to block class-action suit

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This article was published 27/09/2022 (821 days ago), so information in it may no longer be current.

A proposed class-action lawsuit on behalf of Skip the Dishes delivery drivers is slowly moving forward after a Manitoba judge ruled it was “unconscionable” for the company to try to take away couriers’ right to sue.

The online food delivery service is facing accusations it is trying to skirt labour laws by failing to provide employee benefits to couriers it considers “independent contractors” rather than employees.

Four years ago, Winnipeg food-delivery driver Charleen Pokornik filed legal action against Skip the Dishes, asking the court to certify a class-action lawsuit that seeks compensation for delivery drivers across Canada. But the class-action hasn’t proceeded while the court decided whether Pokornik even had the right to sue the Winnipeg-founded company.

The company argued she didn’t, because it had updated the terms of its courier agreement with a requirement intended to block delivery drivers from taking Skip the Dishes to court. Instead of going to court, under the new terms, all courier disputes were required to go to binding arbitration.

The new arbitration requirement came into effect a day after Pokornik’s statement of claim was filed in Manitoba court, and the company only gave notice it would change the terms shortly after Pokornik first approached a lawyer about getting employee benefits.

In a decision issued earlier this month, Manitoba Court of King’s Bench Justice Gerald Chartier ruled against Skip the Dishes and paved the way for the next step in what will be a lengthy legal battle focused on the consequences of Canada’s “gig economy.”

“I find that the defendant would obtain an unfair advantage if the arbitration provisions were found to be valid. The arbitration clause inserted into the new courier agreement was, in part, for the specific purpose of preventing any putative class action proceedings,” Chartier wrote in the Sept. 12 decision.

The judge ruled Skip the Dishes’ arbitration clause is invalid because it is “unconscionable” under the law, and because it didn’t consider the needs of couriers, who had no power to negotiate the terms. They had to accept them or stop working. If the judge had sided with the company on this issue, the entire legal challenge would have been thrown out.

Skip the Dishes will likely file an appeal of the court decision.

Lawyer Paul Edwards is representing Pokornik, who he said is pleased with the court decision but faces a long road ahead.

“This is by no means any kind of a final result, but it is certainly an important one,” Edwards said.

Pokornik has had “outstanding” commitment to this case, even though she’s not getting paid for her efforts, Edwards said. She had been a courier since 2016. The court decision noted the single mother was working two jobs to make ends meet and couldn’t afford a lawyer to challenge Skip the Dishes, so the lawyers agreed to be paid contingent on the outcome of the lawsuit.

The case was stalled for nearly two years while the parties awaited a Supreme Court ruling in a similar case against Uber by former Ontario UberEats driver David Heller. The top court struck down Uber’s arbitration clause as invalid, and allowed Heller’s case to proceed. Last summer, it was officially certified as a class-action in Ontario’s superior court, and the legal battle is ongoing.

It’s unclear how many Skip the Dishes couriers would join the Manitoba class-action if it gets approved by the court. Based on the Uber case, the potential number of claimants is “huge,” Edwards said.

“We’re all realizing how large this gig economy is,” he said.

But he noted the company is expected to fight the legal challenge every step of the way.

“There’s a substantial road to go here, and unfortunately, it moves pretty slowly. But we’re doing everything we can, and Charleen is, to bring this to a resolution.”

The Free Press reached out to the company’s lawyers and its headquarters for comment.

“Skip the Dishes has serious concerns with the motion judge’s decision. We are considering all options at this time, including an appeal to the motion judge’s findings to the Manitoba Court of Appeal for review and correction,” a company spokesperson said in an email statement.

Earlier this month, just days before the court ruling was issued, Skip the Dishes laid off 350 of its Winnipeg employees — not including delivery couriers — in order to “to best set the business and its partners up for sustainable growth,” according to its European parent company Just Eat Takeaway.com.

katie.may@winnipegfreepress.com