2020 Year in Review: The Ontario Labour Relations Board

  • February 06, 2021
  • Andrew Shaw and Shyama Talukdar, Baker & McKenzie LLP

2020 was a tumultuous year in labour relations given the pandemic, and the decisions coming out of the Ontario Labour Relations Board (the "Board") reflect this. The Board has had to adapt to the pandemic, both in terms of procedural changes and substantive issues raised by parties. Below, we explore some of the key decisions and trends that defined advocacy at the Board in the past year.

Notable Board Jurisprudence

The Board Delivers Dependent Contractor Status to Foodora Workers

In a significant decision, Canadian Union of Postal Workers v. Foodora Inc., 2020 CanLII 16750, the Board held that couriers delivering food on behalf of Foodora Inc., an app based food delivery company, were dependent contractors under the Labour Relations Act, 1995 (the Act) and thus have the right to unionize under the Act. This is one of the first decisions commenting on the status of workers in the gig economy.

In answering the essential question regarding whether the relationship between the couriers and Foodora more closely resemble the relationship of an employee or that of an independent contractor, the Board organized its decision along the lines of the key factors identified in the Algonquin Tavern case.

The Board noted that Foodora couriers were not allowed to use substitutes (i.e. they could not hire someone to fulfill their work orders). The Board also found that the most important tool used by the couriers was the Foodora App, which was owned and controlled by Foodora. The couriers also had no economic mobility since they could only earn more money by performing more deliveries. Moreover, they could not separately market themselves as couriers. The couriers were also almost entirely integrated into Foodora's business and the whole business model was dependent upon couriers making timely deliveries. Lastly, Foodora had nearly complete control over various aspects of the employment relationship, including schedules and could discipline couriers for performance issues.

Thus, the Board found that Foodora couriers more closely resemble employees than independent contractors and are, therefore, properly characterized as dependent contractors for the purposes of the Act.