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Internet - Amazon. Davis v. Amazon Canada Fulfillment Services
In Davis v. Amazon Canada Fulfillment Services (Ont CA, 2025) the Ontario Court of Appeal dismissed a class action certification appeal, here originally denied.
The court usefully illustrates aspects of Amazon's business model, in particular it's relationship with it's workers:BACKGROUND
[5] Amazon is an online retailer. The appellant alleges that the putative class members, who deliver goods for Amazon, are all its employees, although the way in which their work relationships are structured falls into various categories.
[6] The motion judge characterized the class action as proceeding with two branches, one involving a class of delivery partners (“DPs”), who were employed directly by Amazon, and one involving a class of driver associates (“DAs") employed by third-party delivery-service partner companies (“DSPs”). He explained the distinction between these two groups as follows, at paras. 3-4:
In the first branch of his action, Mr. Davis sues Amazon as an “employer” of approximately 16,000 putative class members. These workers have a direct contractual worker relationship with Amazon, and they deliver its parcels. These putative class members are known as Delivery Partners (DPs). Mr. Davis is not and has never been a DP. The first branch of the theory of Mr. Davis’s proposed class action is that Amazon is an online product retailer that has a part-time workforce of approximately 16,000 DPs with whom Amazon contracts. Mr. Davis’s allegation is that these drivers from across the country (actually just British Columbia, Alberta, and Ontario) are employees who have been misclassified as independent contractors, so that Amazon can avoid its statutory and common law obligations as an employer.
In the second branch of his action, Mr. Davis sues Amazon as a “common employer” of approximately 57,000 putative class members. These workers have an indirect contractual relationship with Amazon. These putative class members are known as Driver Associates (DAs), and they are workers for Delivery Service Partners (DSPs). The DSPs are logistics companies that are contracted to provide delivery services for Amazon. There were 126 DSPs. Mr. Davis is a former DA. The second branch of the theory of Mr. Davis’s proposed class action is that Amazon is an online retailer that has outsourced the delivery of its goods to 126 logistics companies, the DSPs. Mr. Davis alleges that Amazon did this outsourcing to avoid having to comply with Amazon’s statutory and common law obligations as a “common employer” of these drivers. Mr. Davis submits that as a common employer, Amazon is jointly and severally liable for the failures of the 126 logistics companies to comply with the employment law of British Columbia, Alberta, Manitoba, Ontario, Québec, and Nova Scotia, which is where the DSPs carry on their businesses.
[7] DSPs (and the DAs they hire) deliver Amazon packages through either Amazon’s DSP 1.0 program or its DSP 2.0 program. Depending on which program the DSP participates in, the DSP is required to include certain terms in its contracts with DAs. Under the DSP 2.0 program, Amazon uses a standard form contract that sets out the terms of employment to be followed by DSPs. All DAs who fall under DSP 2.0 have mutual arbitration agreements in their contracts.
[8] Under DSP 1.0, DSPs enter into Transportation Agreements (and work orders) with Amazon, which set out the terms and conditions under which the DSPs provide services to deliver Amazon packages. The terms and conditions under DSP 1.0 agreements vary. Some DAs under DSP 1.0 signed mutual arbitration agreements as part of their contracts, but an estimated 18,000 DAs did not sign mutual arbitration agreements. Any DAs who signed the April 2021 version of the mutual arbitration agreement have a waiver of s. 7(6) of the Arbitration Act.
[9] DPs are recruited by enrolling in Amazon’s Flex Program through the Amazon Flex App. Potential DPs download the App to their smartphone and apply to sign up for the Flex Program. When the DPs register, they are required to agree to the Flex Terms of Service, which include an arbitration agreement.
[10] Both DPs and DAs use Amazon’s technology, the Flex App, to deliver goods. The App allows them to sign up for or “accept” delivery blocks. After accepting a block, the driver would go to Amazon’s warehouse facilities to pick up the goods and follow a detailed route provided by Amazon to make deliveries to a predetermined list of purchasers. The Flex App records the deliveries by scans and photos, and tracks and times the performance of the delivery assignments.
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