January 14, 2016 By: Alison McEwen and Sean T. McGee
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You can’t fight progress, so stop trying. This was the theme of an editorial in The Globe and Mail in mid-December defending Uber’s right to do whatever it wants.

Unless you are living under a rock, you know about the disputes between Uber and taxi drivers. We want to be upfront: we are union-side counsel. To add to our bias, we actually represent some taxi drivers. So feel free to be skeptical about our objectivity.

But, do you know what else happens when you represent taxi drivers? You end up knowing a lot of things about taxi drivers. And about operations like Uber.

Don’t worry, it is totally as safe as you think!

If you think that Uber’s driver checks are enough, we encourage you to dig a little deeper. Search for the stories on any mainstream news outlet.

Taxi drivers, on the other hand, are put through rigorous criminal record checks. In Ottawa, a taxi driver must provide a yearly declaration that there are no criminal charges, and a full Police Record Check every three years. This, on top of the fact that each taxi has a sealed camera recording the interior of the taxi, which can only be accessed by the police.

Taxis are inspected regularly by the municipality – often several times a year – to make sure they are mechanically sound.

Whereas with Uber, their passenger contract says it all: “Uber does not guarantee the quality, suitability, safety or ability of third party providers. You agree that the entire risk arising out of your use of the services, and any service or good requested in connection therewith, remains solely with you, to the maximum extent permitted under applicable law.”

Insurance is probably overrated

This is the one that people are most often confused about. It is true: under the contract, Uber drivers must have insurance. But it also requires drivers to tell their insurance company they’re driving for compensation. Doing so would cause their insurance rates to skyrocket. You decide whether this happens most of the time. Insurance companies aren’t likely to make a payment on somebody’s personal policy when there is also a claim from an injured passenger who paid for the trip.

You probably haven’t read the contract between Uber drivers and Rasier (which is the company that makes the driver app), but there is an indemnification clause. It says: “You [the driver] shall be liable to the Client for all claims of damage and/or injury to any Client sustained while being transported by you.”

When wondering just how safe you are, you should know the passenger agreement also has the following:

Uber shall not be liable for…damages, including lost profits, lost data, personal injury, or property damage related to, in connection with, or otherwise resulting from any use of the services, even if Uber has been advised of the possibility of such damages. Uber shall not be liable for any damages, liability or losses arising out of: (i) your use of or reliance on the services or your inability to access or use the services; or (ii) any transaction or relationship between you and any third party provider, even if Uber has been advised of the possibility of such damages…in no event shall Uber’s total liability to you in connection with the services for all damages, losses and causes of action exceed five hundred U.S. Dollars.”

So when deciding how to pay for your injuries after an accident, remember: you benefit from the exchange rate – so that’s $500 US.

The editorial suggests these worries are “old school” thinking. But taking such a risk to save $2.50 on a fare seems foolish, to say the least.

For taxis, on the other hand, municipal regulations require minimum insurance for any taxi driver. It has to be commercial insurance. And the driver has to prove that a policy is in place. End of story.

Too good to be true?

Taxi drivers in most cities can’t charge more than a set fare.

Uber, however, says the rules don’t apply to them. So they can use something called “surge pricing”. If you take an Uber cab at a busy time, the fare can be much more expensive than the normal rate. If you call an Uber taxi and refuse to pay the jacked-up rate, you can be blacklisted.

Never mind those details – like accessible taxis

There are also greater societal reasons to be concerned about Uber, including accessibility on a number of fronts. In Ottawa, certain taxis are designated to be accessible, which supplement the accessible municipal transportation. These cabs are specially equipped, and the drivers get special training. There isn’t enough work for them to be accessible cabs full-time, so they often supplement with other fares. Uber drivers, on the other hand, are not trained or equipped to help this segment of the population. If Uber ends up driving cabs out of business, good luck finding an accessible ride.

When Canadian municipalities have brought actions against Uber and affiliates for violating by-laws, Uber has (successfully, in at least one case) argued that it is not providing a transportation service, it is only providing a communication app.

This is also the company that steadfastly adheres to the line that the drivers aren’t employees. The drivers get no benefits and no workplace safety insurance.

So, what now?

No one would argue the taxi industry is perfect. The Toronto demonstration was a very difficult situation. Taxi drivers, who have expended considerable effort and money to obey the law have been forced to watch as Uber comes in and argues the rules shouldn’t apply to them.

Of course, Uber isn’t Skynet (although a number of taxi drivers who are losing their livelihood would probably argue the opposite), but people who say we can’t stand in the way of technology miss the point. Technology has to be evaluated like any other service provided to the public.

And, by the way, the Globe and Mail editorial is wrong: it is not too late to ban Uber. Operating an unlicensed taxi is already banned. By the by-laws that already exist.

This content is not intended to provide legal advice or opinion as neither can be given without reference to specific events and situations. © 2017 Nelligan O’Brien Payne LLP.

Service: Labour Law