What If UBER is Right?

(Or, Is UBER a Federal Undertaking?)

You might have seen the news that the UFCW was certified this week by the B.C. Labour Relations Board to represent Uber drivers in the City of Victoria. Contrary to reports in some media stories, this is not the first union certification of “gig workers” in Canada. For example, CUPW was certified to represent workers performing similar “gig” work using the Foodora App in 2020 (Recall that Foodora responded by packing up and leaving Canada entirely). But this is the first successful unionization drive involving Uber drivers in Canada, so congratulations are in order for UFCW and the Victoria Uber drivers.

There’s a variety of interesting issues that I could discuss relating to this news. For example, it’s interesting that Uber agreed that the drivers are “dependent contractors” and therefore covered by the B.C. Labour Relations Code, while in Ontario it still maintains that drivers are NOT dependent contractors in a (still pending) application for certification filed by CUPW to represent Uber drivers in Hamilton.

I mean, the law in B.C. is far more favourable to the UFCW than the Ontario law confronting CUPW. For example, B.C. law permitted the UFCW to win certification based on membership evidence alone (without need for also winning a vote) and now combines potential access to first contract arbitration with a total ban on the use of replacement workers. A strike by Uber drivers in Victoria shuts down Uber. In Ontario, on the other hand, assuming that it can persuade the OLRB that Uber drivers are “dependent contractors” (which it likely will), CUPW still needs to a win a certification vote, and there is no anti-scab legislation in Ontario, so organizing an effective Uber strike, with drivers coming and going from the bargaining unit daily, will be a daunting task. All of this raises the question of why Uber decided to cave in B.C. where the law favours the UFCW in its pursuit of a decent first collective agreement and not drag out hearings there, while it continues to resist unionization efforts in Ontario by raising all sorts of preliminary issues.

On an entirely unrelated point, the unfair labour practice complaint that CUPW filed against Uber for allegedly entering into a sweetheart representation deal with UFCW has been argued before the OLRB and we await a decision.

A Jurisdictional Story

However, I want to focus instead on another issue that I find interesting, even if no one else seems to be talking about it.

When I read about the UFCW win in Victoria, I was reminded of a case I worked on years ago when I was a practising labour lawyer. It involved an application for certification filed by the Steelworkers Union to represent the folks who answered phone calls at The Shopping Channel (TSC), which was owned by Rogers Broadcasting. When the Steelworkers’ organizer came into my office with the materials for the application for certification, the first question I asked him was whether we are sure that The Shopping Channel is a provincially regulated undertaking.

The organizers had assumed that Ontario labour law would apply since the workers were in Toronto and just sitting at desks answering phones during which they would take orders for retail goods. My question was whether the fact that the calls originated from a broadcaster that depended for its business on transmitting signals across the airwaves to people watching televisions across Canada made TSC a federal undertaking. Companies engaged in radio and television signal delivery fall within federal jurisdiction. While there was an argument that the “retail” side of Rogers’ broadcasting business could be severed from the broadcasting side, I thought that there was at least a reasonable possibility that the application for certification should be filed at the federal labour board and not the OLRB.

The materials were ready, so we went ahead with the application for certification at the OLRB. However, I advised the organizers that Rogers could raise the jurisdictional issue at any time and they might just wait to see if the union wins the vote before objecting. Therefore, I recommended that the organizers start re-signing the employees using federal jurisdiction membership cards, just in case. We waited for the employer to raise the jurisdictional issue in its response to the application for certification, but it didn’t do so. The OLRB ordered a certification vote and the Steelworkers won, resulting in the union being certified. The union served a notice to begin bargaining and settled in to start that process.

Only then did the employer pounce. It filed an application for reconsideration, arguing that the OLRB did not have jurisdiction over The Shopping Channel and therefore it could not certify the union. I argued in response that the test for reconsideration was not satisfied, since the jurisdictional issue could easily have been raised at the outset so there was nothing new for the OLRB to consider. Obviously, the employer was being cute and waiting to see what happened before making the argument. The OLRB agreed and dismissed the employer’s argument. Here’s the decision if you’re interested.

But the problem remained for the union. The employer could just wait for the next time the OLRB was asked to do something (appoint a conciliator, deal with an unfair labour practice complaint, etc) and then raise the jurisdictional argument anew. Ultimately, the Steelworkers re-applied under the federal Code and won there too, so that pretty much ended all the jurisdictional shenanigans.

What does all this have to do with Uber?

Well, I have had a nagging suspicion for some time that Uber might actually be a federal undertaking. I’m working on a longer law journal length paper about this that fleshes out the legal authorities. But in a nutshell, there are two arguments why Uber is federal and not provincial.

Firstly, as Uber itself likes to argue ad nauseum when it claims that “it is just a technology company”, there is a decent argument that Uber is a “telecommunications” business within the meaning of that term used in constitutional law. This raises the question: What if Uber is right?

“Telecommunications” does not appear in the Constitution, but the regulation of “telegraphs” is assigned to federal jurisdiction and courts have treated telecommunications as analogous. Therefore, the question is what is “telecommunications”. That’s too complicated a question to dive deep into here, but in a nutshell, the case law and statutes that define telecommunications define it as including transmission of signals, images, signs, sounds, et cetera, by wire, cables, radio, optical or other electromagnetic systems or similar technologies. Is it a stretch to say that Uber’s algorithm and App fits into this type of definition?

Read this great opening from Justice Dunphy in City of Toronto v. Uber Canada from 2015, which reads like the opening of a Black Mirror episode:

This evening, a tourist from London visiting Toronto will take out her smartphone and press a button to activate an "app" that she downloaded months or even years ago. Her smartphone will display a map showing her location and a number of tiny black cars moving on the map near her. Each "car" on her map represents the location of a driver who is willing to carry her to her destination for hire. When she presses a button on screen, her phone will send a digital request to a server in Northern California, and software on that server will automatically transfer the request to the smartphone of the driver of the car nearest her that she saw on the map. If the driver presses "accept" on his own smartphone, his phone will then send his own data through the same server back to her and they will meet and he will drive her to her destination. Other than the tourist and the driver, no human will participate in making that connection. Software on her phone, on the driver's phone, at the server in Northern California and throughout the Internet will receive and pass along the data packets sent by each.

The simple act of calling for an Uber driver on your phone requires the transmission of signals sent multiple times thousands of miles across national borders connecting servers in other countries to phones in Toronto. Does that sound at all like telecommunications? At a minimum, if Uber truly believes that it is “just a technology company” that uses an APP to send signals back and forth across national borders in order to connect local drivers to rides, then perhaps it has crossed the minds of its lawyers that it could be a “telecommunications” company?

The second way that Uber might be a federal undertaking is more straightforward. If Uber is NOT a telecommunications company, then presumably it is a transportation company. But it is a transportation company that regularly and continuously transports people across borders. Every single day, people living in border towns in Canada use the Uber App to get drives back and forth across provincial (and sometimes national) borders. Want to get from Ottawa, Ontario to Gatineau, Quebec and back again? Just call an Uber. People do this EVERY SINGLE DAY. I don’t know how frequently Uber drivers take people into the United States, but I know for a fact that it happens. Folks in Windsor take Uber cars to Detroit, for example. I don’t have the statistics, but I have little doubt that if we could get them they would show that Uber drivers regularly and continuously cross provincial (and sometimes national) borders, every day.

In any event, for the purposes of this post, let’s just assume this is the case. There is long-standing case law that rules that a transportation company that “regularly and continuously” crosses borders falls within federal jurisdiction, regardless of what percentage of the company’s overall work entails cross-border travel. That is the point of the Ottawa-Carelton Transit Commission case I use in my textbook, where the Court of Appeal ruled that the transit company was federally regulated even though just 2-4 percent of its routes crossed into Quebec. No doubt there are arguments that Uber is different and that this reasoning does not apply, but there is at least a feasible argument that the fact that Uber sends drivers across borders every day makes it an inter-provincial transportation company and therefore a federal undertaking.

As I noted, I’m fleshing these arguments out in greater detail in a longer paper under construction. My point here is simply that while there are a variety of ongoing legal battles involving Uber underway at various provincial labour boards across Canada, there is in the background an untested assumption that provincial laws govern the relationship between Uber and its drivers. But what if Uber is a telecommunications company or an extra-provincial transportation company? What if Uber decides one day, like Rogers Broadcasting did in my 1990s case, that being provincially regulated is not really working out so well and it decides to argue it’s a federal undertaking?

A finding that Uber falls within federal jurisdiction would certainly shake things up! It would call into question rulings relating to Uber issued by provincial tribunals under provincial legislation. On the other hand, it is an interesting debate about whether in fact Uber drivers would ultimately be better off if there was a single national government imposing the rules, rather than what we are experiencing now, which is each province entering into little sweetheart deals with Uber that apply watered down labour laws to platform-based drivers. Lots of transportation and telecommunications related workers are governed by federal labour laws.

It is certainly not obvious to me that platform-based drivers are better off under provincial laws.

DD//