Executive Summary: Key Legal and Evidentiary Issues

• Justice Glustein dismissed refusals motions brought by both Uber and the plaintiffs in this certified class action.
   
• Central to the decision is whether "how and why" Uber designed App features is relevant to the common employment classification issue.
   
• Applying the "whose business is it" test, the court found that only the actual operation of Uber's Apps, agreements, and policies during the class period matters, not the internal reasoning behind their design.
   
• Uber's request for leave to examine ten additional Class Members under section 15(2) of the Class Proceedings Act was granted.
   
• Ten "categories" of Class Members, each with unique evidence on choices made while working through the Uber Apps, supported the scope of additional discovery.
   
• The court reduced the length of each additional examination for discovery from Uber's proposed full day to a half day.
   

Facts of the case

This decision arises from three motions in a certified class action alleging that Uber misclassified its "Earners"—Drivers and Delivery People who use the Uber Apps—as independent contractors rather than employees. The representative plaintiffs, David Heller and Felicia Garcia, seek $200 million in damages plus an additional $200 million in punitive, aggravated, and exemplary damages. The class period runs from January 1, 2012 to August 12, 2021, and includes over 360,000 Earners who used Uber Apps in Ontario. Uber controls the design of the Apps and offers various incentives to Earners, including surge pricing, "Quests," and the Uber Pro program, all governed by a standard form Service Agreement and Community Guidelines. Heller provided delivery services from February 2016 to April 2018, while Garcia has provided rideshare and delivery services since 2015 and continues to do so. Before this hearing, Justice Perell had certified the action, finding "some basis in fact" for several possible outcomes on the employment classification issue, including the possibility that a case-by-case analysis would be required.

Three motions were before Justice Glustein: Uber's motion to compel answers to two refused questions from Garcia's examination for discovery; the plaintiffs' motion to compel answers to roughly 30 refused questions from the examinations of Uber representatives Nickels and Bashambu; and Uber's motion for leave under section 15(2) of the Class Proceedings Act, 1992 to examine ten additional Class Members.

Policy and legislative provisions at issue

The decision turns on the scope of discovery under the Class Proceedings Act, 1992, particularly section 15(2), which permits a party to seek leave to examine class members beyond the representative plaintiffs, and section 15(3), which lists the factors a court must weigh in deciding whether to grant that leave. Those factors include the stage of the proceeding, the presence of certified subclasses, the necessity of discovery, the monetary value of individual claims, potential oppression or burden on the class members to be examined, and any other relevant factors. The underlying merits dispute concerns the Employment Standards Act, 2000, which the plaintiffs allege Uber breached by failing to provide statutory minimums for wages, overtime, vacation pay, and other entitlements. The court also applied the "whose business is it" test from Braiden v. La-Z Boy Canada Limited and 671122 Ontario Ltd. v. Sagaz Industries Canada Inc. in assessing whether particular categories of evidence bore on the common employment classification issue.

Reasoning and analysis

On the refusals motions, Justice Glustein held that neither Uber's questions to Garcia about provisions of the Community Guidelines she disagreed with, nor the plaintiffs' extensive questions about how and why Uber designed, tested, and marketed App features, pricing structures, and incentive programs, were relevant to the common issues trial. The court repeatedly emphasized that the common issues judge must assess the actual structure and features in place during the class period, not the internal deliberations, rejected alternatives, or behavioural science research behind them. Documents and testimony about the process of designing offer cards, Uber Pool, the matching algorithm, and surveys were found irrelevant for the same reason, and one question about "batching plans" was dismissed as speculative for lack of foundation.

Turning to Uber's leave motion under section 15(2), the court found that each of the section 15(3) factors favoured granting leave. The motion was brought at the appropriate stage, once discovery of the representative plaintiffs concluded. The individual evidence sought was relevant both to understanding how the Service Agreements and Community Guidelines function in practice and to whether a class-wide determination is even possible, given that Earners' individual choices may differ substantially. The court accepted that Uber's own records and informal conversations with Class Members could not substitute for sworn discovery evidence, since such records show what Earners did but not why, and since certification affidavits and roundtable discussions cannot be read in as trial evidence. Given the $400 million in claimed damages, Uber's potential exposure also favoured broader discovery rights. The court found no evidence that examining these ten Class Members—selected because of their documented, unique experiences with the Uber Apps—would be unduly burdensome, noting several had already spoken publicly or testified in other proceedings about their App use.

Ruling and overall outcome

Justice Glustein dismissed both refusals motions, finding that Uber's and the plaintiffs' contested questions sought information not relevant to the common issues trial. Uber, as the responding party to both refusals motions, was successful on this branch of the case. On the third motion, the court granted Uber leave under section 15(2) to examine ten additional Class Members, largely adopting Uber's proposed process: Uber may select the Class Members, the number remains at ten, and the examinations will proceed orally, with the sole modification being a reduction from Uber's proposed full day to a half day per Class Member. As this is an interlocutory discovery ruling rather than a determination of the underlying $400 million damages claim, no monetary amount was ordered, granted, or awarded to either side. Costs were reserved, with the parties permitted to file written submissions on costs by August 14, 2026, responding submissions by August 28, 2026, and reply submissions by September 4, 2026.