← All Posts

Case Law in Review: BC Labour Board Allows Uber and Lyft to Label Drivers as Independent Contractors

In the 2020 decision of Lyft Canada Inc. v United Food and Commercial Workers International Union, Local 1518, 2020 BCLRB 35 (“Lyft Canada Inc.”), the Labour Relations Board of British Columbia dismissed an application brought by a trade Union acting on behalf of certain Uber and Lyft drivers (the “Application”).

The Union’s Application had two components. First, it alleged that Uber and Lyft (collectively, the “Respondents”) committed unfair labour practices and violated Sections 6(1) and 6(3)(c) of the Labour Relations Code, RSBC 1996 (“Code”) through their Terms of Service, which purportedly discouraged drivers from signing union cards. Second, the Union applied to have the Board declare, pursuant to Section 139(a) of the Code, that drivers are employees under the Code. The Board’s reasons in respect of each part of the Application will be addressed in turn.

Unfair Labour Practice

In respect of the Union’s Application under section 6(1), the Board rejected the Union’s submission that the Respondents had structured their businesses in a disingenuous manner in order to frustrate any rights drivers may have under the Code. The Board also concluded that even if drivers were led to believe that they were independent contractors as a result of the Respondents’ Terms of Service and, for that reason, would not join a union, this did not amount to an interference under the Code.

On the issue of section 6(3), that is, whether the Terms of Service restrain drivers from exercising their rights under the Code, the Board relied on its earlier jurisprudence in Semiahmoo Management Ltd., BCLRB No. B12/98 to conclude that it is not a breach of the Code to include a term in a standard form contract stating drivers are independent contractors. Curiously, in this part, the Board relied on the old adage that the substance of a legal relationship trumps its form in concluding that “labels” in a contract do not prevent a driver from asserting their rights under the Code.

This of course begs the question: in practice contractual labels may influence driver’s perceptions of their ability to enforce their legal rights even when in principle they should not.

In any event, the Union in Lyft Canada Inc. failed to adduce any evidence of such actual harm.

Declaration that Drivers are Employees

As concerns the Union’s request for a declaration that drivers are dependent contractors and thus employees under the Code, the Board said that it had little to no jurisdiction to make such an order because the dispute between the parties did not require the Board to make such a declaration.

Would this Decision have been decided differently in light of SCC judgment in Heller?

It’s certainly interesting to ask whether Lyft Canada Inc. would have been decided differently in view of the Supreme Court’s judgment in Uber Technologies Inc. v. Heller, 2020 SCC 16 (“Heller”), a decision released three months after Lyft Canada Inc., and as more particularly described in a previous post [https://kornfeldllp.com/2021/03/precarious-work-in-the-modern-gig-economy/].

The two cases are different in important respects: the Board in Lyft Canada Inc. was explicitly concerned with what the Respondents’ believed to be true about the Terms of Service at issue. Meanwhile, in Heller, the Court elected not to consider Uber’s reasons for including the impugned provision and paid little heed to whether such reasons were genuine.

Perhaps more importantly, however, both decisions agreed that ultimately it is the substance of any relationship that shapes the legal rights and responsibilities that attach to those relations.

Soon enough, the Courts will determine exactly what that substance is for Uber, Lyft, and its drivers in the modern gig economy.


Share This Post