In Davis v Amazon Canada Fulfillment Services, ULC, 2023 ONCA 634 the Court combined two appeals initiated in two different courts arising from a single decision that concerned two interrelated motions. One was an appeal of a stay of proceedings in favour of arbitration granted pursuant to s. 7 of the Arbitration Act, 1991, S.O. 1991, c. 17 (“Arbitration Act”) and the other was an appeal of a decision denying class certification. The Plaintiff appealed the decision denying class certification to the Divisional Court, as required by the then applicable version of the class proceedings legislation [Class Proceedings Act, 1992, S.O. 1992, c 6 (“CPA”)] and appealed the stay decision to the Court of Appeal. The Plaintiff then applied to the Court of Appeal to transfer the class certification appeal from the Divisional Court to the Court of Appeal and join it to the stay appeal. The Court granted the application. It concluded that to do so was in the interests of the administration of justice. The Court found that, as some of the proposed class members (although not the representative plaintiff) were alleged to be subject to arbitration agreements, “the appeal of the stay decision goes directly to who may be class members and is completely premised on certification being under consideration” (para. 14). The Court was of the view this finding weighed strongly in favour of the appeals being combined “so that they can be managed, sequenced, considered, and decided taking into account and specifying the effect a decision in one may have on the other” (para. 13).
The facts were these. The Plaintiff commenced an action against Amazon and brought a motion to certify the action as a class proceeding. The proposed class consisted of approximately 73,000 delivery drivers who worked for third parties or who were retained by Amazon as independent contractors. The action alleged these delivery drivers were employees of Amazon and therefore Amazon was liable to them for overtime, holiday pay and other entitlements under provincial employment standards legislation.
In response, Amazon brought a motion pursuant to s. 7 of the Arbitration Act to stay the claims of members of the proposed class who were parties to agreements that contained arbitration provisions. The two motions were connected because if the arbitration agreements were found to be valid as part of consideration of the stay application, those who had such agreements could not be class members by operation of s. 7 of the Arbitration Act. The applications were also connected because the Plaintiff was not, himself, a party to an arbitration agreement. As a result, the argument that the claims of potential class members with arbitration agreements should be stayed, was predicated on their claims being considered for inclusion in a class proceeding, something that would occur only if the action were certified as a class proceeding as their claims were not otherwise before the court.
The Motion Judge dismissed the motion to certify and granted the motion to stay. The Plaintiff sought to appeal both decisions. The appeal of the motion to certify the action was made to the Divisional Court, as required by the applicable version of the CPA, while the appeal of the stay decision was made to the Court of Appeal.
It should be noted that s. 7(6) of the Arbitration Act provides there is no appeal of a stay decision under s. 7 of the Arbitration Act. However, the Plaintiff took the position that s. 7(6) was inapplicable because the terms of the relevant arbitration clauses and governing law rendered the arbitration clause invalid. As a result, he sought to appeal the stay decision to the Court of Appeal on the basis that it was a final order of a Superior Court judge from which an appeal lies to the Court of Appeal under s. 6(1) of the Ontario Courts of Justice Act, R.S.O. 1990, c. C.43 (the “CJA”).
The Plaintiff brought a motion in the Court of Appeal for: (i) an order extending the time for him to deliver his notice of appeal from the stay decision, and (ii) an order under ss. 6(2) and (3) of the CJA transferring to the Court of Appeal the appeal from the certification decision before the Divisional Court and combining it with the stay appeal. Amazon consented to the first motion without prejudice to its arguments on the jurisdiction of the Court of Appeal to hear the appeal and the appeal’s merits. It opposed the second motion to transfer and combine the appeals.
The Court of Appeal granted the second motion. Citing sections 6(2) and (3) of the CJA, the Court noted that although necessary, it was not sufficient that one appeal lies to the Court of Appeal and another to the Divisional Court, and that both are in the same proceeding, to make an order for transfer. The transfer order is discretionary, and the overriding consideration is the administration of justice. Relevant factors to consider include: the risk of inconsistent results, the extent of overlap in the matters to be addressed in the two appeals; and whether the fact of the different issues in the two appeals weighs against joinder. In this case, the appeal of the stay decision directly impacted the decision as to who may be class members and was premised on the certification application. This militated in favour of a transfer order. This was not a case where the appeal in the Divisional Court raised issues unrelated to the appeal in the Court of Appeal so that joining the appeals would undermine the legislature’s choice of appellate forum.
First, the CPA now provides that appeals from certification decisions lie to the Court of Appeal: See CPA, 2020, c. 11, Sched. 4, s.27 (1), s. 30 (1).
Second, for cases concerning when s. 7(6) of the Arbitration Act operates to bar an appeal of a stay decision see Ontario – When is an appeal of a stay decision barred? – #757 and the cases referenced therein.
Third, for cases concerning the validity of arbitration clauses in contracts of adhesion see B.C. – Arbitration clause in contract of adhesion not unconscionable/against public policy – #772 and the cases referenced therein.