CANADA Trends and Developments Contributed by: David Gadsden, John Pirie, Brendan O’Grady and Anton Rizor, Baker McKenzie
Baker McKenzie 181 Bay Street Suite 2100
Toronto Ontario M5J 2T3 Canada
Tel: +1 416 865 6983 Fax: +1 416 863 6275 Email: David.Gadsden@bakermckenzie.com Web: www.bakermckenzie.com
Key Developments in Employment, Product Liability and Cryptocurrency Class Actions Class actions are frequently brought in Canada across a variety of legal areas. This chapter of the guide will focus on significant recent developments in employ- ment, product liability and cryptocurrency class pro- ceedings. Employment class actions Employment class actions are regularly pursued in Canada, seeking payments of amounts due under employment standards legislation, unpaid vacation, termination pay or entitlements arising from misclas- sifying employees as independent contractors. Employment class actions may also involve complex issues such as the enforceability of arbitration claus- es in employment contracts and common employer claims against multiple defendants. Davis v Amazon Canada Fulfillment Services, ULC , 2025 ONCA 421 , a recent Ontario Court of Appeal decision, dealt with both of these issues. In Davis , the Ontario Court of Appeal confirmed a stay of claims pending arbitra- tion for some proposed class members and denied certification for others, concluding that the defendant was not a common employer of the proposed class members. The appellant plaintiff sought to certify a class action on behalf of approximately 73,000 delivery drivers across Canada, alleging that several of the defendant employer entities were liable for:
• breach of employment contracts; • violations of employment standards legislation;
• breach of good faith; • unjust enrichment; and • negligence.
The proposed class was divided into two groups: Delivery Partners (DPs), who were directly employed by Amazon, and Driver Associates (DAs), who were employed by third-party logistics companies known as Delivery Service Partners (DSPs). The appellant was a former DA, not a DP. The lower court stayed the claims of all DPs and DAs who had signed arbitration agreements and dismissed the certification motion for the remaining DAs who had not. The motion judge found that the arbitration agree- ments were enforceable and did not meet the thresh- old for unconscionability or public policy concerns as set out in Uber Technologies Inc v Heller , 2020 SCC 16. The court distinguished Uber v Heller on the basis that the arbitration clauses in this case did not impose unreasonable barriers related to time, cost or procedure on the drivers pursuing claims under their contracts, and that drivers retained access to statu- tory remedies under employment legislation. On appeal, the Court of Appeal declined to revisit the stay imposed under Section 7 of the Arbitration Act, citing Section 7 (6), which bars appeals from such decisions. The Court of Appeal held that the “proper application of the doctrine of unconscionability to
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