AN INTERVIEW WITH RYAN WHITE

Live in the moment. Don’t spend all of your time thinking about what the next step is going to be or preparing for something else.

At the end of his undergraduate science program at Guelph University, Ryan decided he did not want to be stuck in a lab for the rest of his life. He had become increasingly interested in social justice while he was involved in student politics, so law school seemed like a good option. His decision to become a labour lawyer was cemented by a student-organized boycott he attended against a farm owner which involved workers coming on campus to speak about their situation. Ryan went on to study law at Osgoode Hall and was called to the bar in 2009. He is now a partner at Cavalluzzo LLP.

Litigation Strategy in the Foodora Proceedings

Ryan represented Foodora couriers and drivers (Foodsters United) in a dispute before the Ontario Labour Relations Board (OLRB) in 2020. Siding with the workers, the OLRB held that Foodora couriers were dependent contractors that fell under the definition of “employee” in the Labour Relations Act (as opposed to independent contractors), meaning that, unlike independent contractors, they have the right to form a bargaining unit — an important step in their unionization efforts.

The main reasons not to classify Foodora’s couriers as independent contractors was the amount of control Foodora had over them and their integration into its platform. “If you were driving for Foodora or really any of the other gig economy companies, you’re kind of not doing it on your own,” Ryan says. “You’re slotting into this larger process where you have a very well-defined role…your pay is set and cannot be negotiated.” Control and integration go hand in hand. Workers are integrated into a freestanding system where Foodora sets the parameters of the system and what happens if you fail to meet the expectations of that system.

Ryan explains that, in litigation, you often downplay certain facts that hurt your client’s position or avoid bringing them up at all. However, in the Foodora case, his strategy was to put all the clients’ cards on the table to get the proceedings done as fast as possible. By calling truly representative witnesses, even ones that highlighted facts that favoured the other party, Ryan wanted to avoid Foodora needing to call in their own stream of witnesses, which would lengthen the proceedings. The strategy worked, and Foodora only called one witness. This emphasis on speed came from the fact that the average tenure of a Foodora employee was a month or less. Since proceedings of this kind typically take eight months to a year, a quick decision was needed to avoid an enormous amount of turnover.

Ryan describes the OLRB’s decision as proactive, written with an eye to future applications by other gig economy workers. The decision also came out weeks before the COVID-19 lockdowns started, and Ryan believes the pandemic has shown how reliant our society is on this type of work. Taking these two facts together, he is almost certain we will see more unionization campaigns like this by workers in the gig economy. Hopefully, this decision can act as a roadmap to speed up future applications.

Unfortunately, gig economy workers in markets across North America continue to face obstacles to fair working conditions. In the recent US election, Proposition 22 (on the ballot in California) passed with about 58% of votes in favour, which upheld the state’s classification of app-based food delivery and ride-hailing drivers as independent contractors, disentitling them to the rights the OLRB recognized in Foodora.

Ryan is not surprised by this outcome given the amount of money app-based companies poured into lobbying in favour of the proposition. Though using software-based systems to dispatch or distribute work dates back to the 1990s, “the platform economy companies have done a great job from a PR perspective to convince people that this is new and disruptive technology when all that is new and disruptive about it is their disregard for local labour laws.” There is much work to do in terms of convincing the public that the misclassification of app-based couriers needs to end.

Emerging Developments in Labour Law

In his work, Ryan sees how technology has opened new privacy issues between employers and their employees. This includes employees’ social media posts or leaked messages coming under scrutiny, and cases where employees use their work smartphones for inappropriate personal uses that employers discover upon taking the phone back. In this sense, personal life is increasingly intruding on work.

The COVID-19 pandemic has also significantly changed the conduct of labour litigation. Ryan thinks hearings and proceedings that are intended to be quick and low-cost will remain online. He also explains how the OLRB, which sits in Toronto, used to travel to faraway cities under rare circumstances, typically if both parties and their witnesses were situated there. He expects that such travelling will become virtually non-existent. Video conferencing will also remain prevalent in cases where the parties are far apart, for example where the workplace in dispute is far from where the company and the union is headquartered.

In terms of challenges within the legal profession itself, Ryan observes that many union-side labour firms may think of themselves as automatically advancing social justice because of their work. But Ryan thinks it is important for labour lawyers to interrogate what barriers still exist within their own firms. He is also troubled by the backlash against the LSO Statement of Principles and other modest proposals to advance equity. Ryan highlights the role of allies in making sure efforts to advance equity, diversity, and inclusion do not fall entirely on the shoulders of marginalized communities.

Ryan’s advice for law students

According to Ryan, litigation is similar to 100% final exams: you have a day (or several) in your calendar months down the road that all your work leads up to. A knack for organizing tasks is important, especially if you are juggling multiple files at once. Creating a roadmap for yourself early is key. Ryan urges students not to worry if they feel their litigation abilities are not there yet — most skills can be honed!

Ryan advises students to live in the moment. Don’t spend all of your time thinking about what the next step is going to be or preparing for something else.