No Common Employer Means No Class Action—Ontario Court of Appeal

Written By Ethan Schiff and Maisah Syed

The Ontario Court of Appeal has concluded that a client's influence over a service provider's processes does not establish an employment relationship between the client and the service provider's employees. The plaintiffs in Davis v. Amazon Canada Fulfillment Services, 2025 ONCA 421, sought to certify an action for a class that included driver associates (DAs), who were employed by 126 delivery-service partner companies (DSPs) contracted with the defendant, Amazon. All causes of action advanced on behalf of the DAs depended on Amazon having a common employer relationship with the DAs. The Court of Appeal, however, found no reversible error in the certification motion judge's conclusion that Amazon was not a common employer.

The plaintiffs submitted that Amazon, who had outsourced its product delivery to the DSPs, was a common employer. To establish that Amazon is a common employer, the plaintiffs had to:

1. show a significant degree of interrelationship and/or common control between Amazon and the DSPs; and
2. demonstrate that the DAs had a reasonable expectation that Amazon was a party to their employment agreements with the DSPs at all relevant times.

The Court of Appeal deferred to the motion judge. He held that Amazon and the DSPs "did not constitute an 'integrated or seamless' group of companies operating together as one business". Although Amazon's contracts with the DSPs affected how the DSPs carried out their roles as employers (including, for example, mandating use of the Amazon Flex App by DAs), Amazon was just a client. The motion judge also held that it was plain and obvious that the written contracts and material facts did not permit an inference that the DAs and DSPs intended for Amazon to be a party to the employment agreements. Although not determinative, the motion judge noted that the DAs' employment agreements expressly disavowed Amazon as an employer. The motion judge concluded, and the Court of Appeal upheld, that the DSPs "in a non-homogenous way were exclusively responsible in the employment relationship with the drivers."

The Court of Appeal separately accepted that, even if there were some basis in fact that Amazon was a common employer, the motion judge made no reversible error in concluding that a class action was not the preferable procedure: "the proposed common employer cause of action attempts to hide… 126 discrete proposed class actions that have been joined together."

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• Mandated use of the Flex App by Amazon was found not to constitute a common issue because the DSPs did not use, manage or monitor the Amazon Flex App uniformly.
• Despite language in the motion judge's reasons suggesting that he considered evidence in his pleadings analysis (which is not permitted), the Court of Appeal concluded that the motion judge had proper regard to the pleadings.
• The Court of Appeal held that the motion judge's findings of pleaded facts were entitled to deference on appeal. Given its conclusion to decline certification, the Court of Appeal did not consider the separate order under appeal to stay some claims in favour of arbitration.

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