EDMONTON—Does your food delivery driver deserve vacation pay? What about benefits for your ride-share driver?

The issue of greater rights of workers in the so-called gig economy could soon be dragged into the spotlight, thanks to a Winnipeg Skip The Dishes delivery driver who is taking the fight to court.

A lawsuit was filed in Winnipeg court on July 25 on behalf of Charleen Pokornik, who has worked as a delivery driver for the popular food delivery service Skip The Dishes in Winnipeg since 2016.

"The main issue is whether or not the couriers are independent contractors or employees," said Evan Edwards, one of the lawyers representing Pokornik. "We take the position that the couriers are employees of Skip The Dishes and they should be entitled to the benefits of the employment standards legislation."

The question hits at the heart of the so-called gig economy, which has seen a growing number of people signing up to drive people around, deliver food and do odd jobs using app-based services. As workers devote more time to these jobs, people like Pokornik argue they deserve to be compensated in the same manner as their more traditionally-employed counterparts.

A statement of claim filed against Skip The Dishes Restaurant Services Inc. — with operations in Manitoba, Saskatchewan, British Columbia, Nova Scotia, Alberta, Ontario, Newfoundland and Labrador and Prince Edward Island — argues that because of their improper classification as independent contractors, couriers like Pokornik are being cheated out of overtime pay, holiday pay and minimum wages.

"Ms. Pokornik takes the position that she is an employee of Skip The Dishes and should be entitled to the benefits of the employment standards legislation," said Edwards. "The legislation will be very similar if not exactly similar for all provinces in Canada that have a form of an employment standards code."

Edwards said he has yet to hear a response to the statement of claim from any representative of Skip The Dishes.

In a written statement, a spokesperson with Skip The Dishes said, "this matter is before the courts and we look forward to responding through the appropriate channels," declining further comment.

While there has been a recent boom in food-delivery apps in Canada, complaints from all types of couriers about low wages and unfair working conditions aren't new.

In Vancouver, as the need for paper couriers dwindles and forces bike couriers to reinvent themselves as food-delivery drivers, four-year courier Erin Carolan said it's tough to make ends meet under current conditions.

"Food delivery is kind of unstable. There's no hourly guarantee, you have to hope you get a high volume of trips or you get good tips out of it, so it's a little bit more unpredictable," Carolan said, in an interview in June.

Pushing back, bike couriers in Toronto have been unionizing.

Eric Adams, an associate professor of law with the University of Alberta, said, "the gig economy will necessarily transform some of the legal conceptions that have previously applied to a distinction between employees and independent contractors."

While he says labour legislation is vague in its definition of employee , the difference between employee and independent contractor comes down to two main factors: the independence of the worker and the amount of control the employing entity has over the worker.

"What is the degree of independence that the worker is engaged in? How much risk of profit or loss are they taking on? Do they have the independence to subcontract or do they have the independence to work for multiple employers?" asked Adams.

In the statement of claim, Pokornik's counsel included a list of factors specific to her employment with Skip The Dishes that they argue make her an employee rather than an independent contractor, including the fact that the administration of her work — such as prices, compensation, and deciding what customers will be served and when — is controlled by the company, workers are barred from competing with the company and delivery people are not allowed to subcontract or independently employ other drivers.

Adams said employment standards are put in place recognizing the power imbalance in an employer-employee relationship — given that an employee will suffer far more from the loss of employment than a typical employer suffers from the loss of one employee — and the need for their rights to be protected.

"They are people who need the law's shield to make sure that their working conditions are safe, that they are paid enough of an adequate wage and that they have access to the statutory minimums that we would demand of having a dignified working career," said Adams.

He added that pushback from companies whose business models depend on the emerging gig-economy of casual labour should serve as a warning that those workers need someone to protect them.

"The entities themselves do not want to have employees, and they are going to continue to push the line that these are independent contractors. They don't want to accept the responsibilities or the added burdens of employment that are created by those employment relationships, so they'll continue to resist that," said Adams. "That in itself might be a sign to us that these are individuals that probably need the protection of the law."

Without setting a dollar figure, the lawsuit seeks to have Skip The Dishes compensate its employees for pay they would have been entitled to had they been classified as employees, any Canada Pension Plan or Employment Insurance contributions that should have been paid, any tax liability workers incurred while classified as contractors, court costs and any punitive damages awarded as a judge deems fit.

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Skip The Dishes Restaurant Services Inc. must file a response within 20 days.

With files from Jenny Peng, StarMetro Vancouver

Claire Theobald is an Edmonton-based reporter who covers crime and the courts. Follow her on Twitter: @clairetheobald

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