Class action lawsuit against SkipTheDishes takes step in court

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A class action lawsuit against SkipTheDishes takes a step before the courts

Charleen Pokorki alleges that she should be considered an employee and not a contractor for several reasons: she was hired and trained by the company, she is not paid by clients and cannot solicit clients, and, finally, it cannot compete with SkipTheDishes or subcontract its work.

The class action lawsuit brought by a former Manitoba delivery woman against SkipTheDishes will continue to progress through the courts. The Court of King's Bench ruled on Monday that an amendment made to the agreement between the delivery people and the company shortly before the start of the lawsuit is invalid.

The action brought by Charleen Pokorki in 2018 argues that she should be considered an employee, not a contractor.

Several days before the lawsuit begins, SkipTheDishes modified the conditions of its contract with the deliverers. This contract stated that the drivers had to agree to participate in arbitration in the event of a dispute.

SkipTheDishes' lawyers therefore asked the court to stay the proceedings because of this agreement, because it means, according to them, that the court does not have the jurisdiction to decide the question. .

In his decision, Judge Gerald Chartier dismissed the multinational. Not only was the original agreement between SkipTheDishes and Charleen Pokorki in effect at the time of the lawsuit, but even if the new agreement were in effect, it would also be invalid, he claimed.

Charleen Pokorki started making deliveries for SkipTheDishes in 2014. According to the contract she accepted at that time, the courts of Manitoba could be seized in the event of a dispute.

On July 4, 2018, she consulted a lawyer regarding this class action. On July 19, SkipTheDishes announced that a new delivery agreement will go into effect one week later, on July 26.

This new agreement indicated that any dispute had to go to arbitration on an individual basis. Among other things, it prohibited drivers from participating in a class action or any other legal action.

On July 25, the lawsuit was filed by Charleen Pokorki's attorneys.

A few days later, she accepted the conditions of this new agreement in order to be able to work, while sending an email to the company indicating her disagreement.

The new agreement between SkipTheDishes and its delivery people was not retroactive, according to judge Gerald Chartier. Moreover, by accepting Charleen Pokorki's letter of disagreement, the company demonstrated that the relationship between the plaintiff and her was governed by the old agreement.

The judge made a point of pointing out that, even if he were wrong with regard to the agreement that exists between the plaintiff and the defendant, the new agreement would be invalid, because it is lesional and without consideration.

A lesion, in matters of contract, is an injury suffered by a party to a contract.

The plaintiff was powerless to negotiate terms, writes the judge. There is a difference in sophistication between the two parts. I do not find the plaintiff to be particularly sophisticated. Like a growing number of people today, she worked two jobs to make ends meet.

Furthermore, the new agreement benefits the defendant at the expense of the plaintiff by retroactively depriving him of his right of access to the courts.

I disagree that binding arbitration constitutes consideration. The elimination of the right to sue is not an advantage for a party, just like the elimination of the right to participate in a class action, concludes Gerald Chartier.

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