Can Uber Examine Class Members in Ontario Class Action?

Can a defendant examine class members in an Ontario class action?

Yes — but only with the court’s permission and within strict limits. Under section 15(2) of the Class Proceedings Act, 1992, a defendant can apply for leave to examine class members other than the representative plaintiff. The court decides whether to grant that leave by looking at several factors: how far along the case is, whether the questions relate to the common issues being certified, whether the examination is truly necessary, the burden it places on ordinary class members, and the defendant’s potential damages exposure.

In Heller v. Uber Technologies Inc., 2026 ONSC 4102 (CanLII), the Ontario Superior Court of Justice applied this framework and granted leave for ten additional class member examinations in the ongoing Uber class action. This decision offers a useful roadmap for how Ontario courts manage discovery in large class proceedings.

What factors does a court weigh before allowing class member examinations?

The court does not automatically allow a defendant to examine class members just because it asks. The judge must be satisfied that the examination is justified given where the case stands. Key considerations include whether the evidence sought is relevant to the certified common issues — not just useful to the defendant generally — and whether the burden on individual class members is proportionate.

In this case, the court found that evidence about the choices and reasons of “Earners” (the gig workers in the class) was relevant to the common issues. Because the class is large and the damages exposure significant, some additional examination was warranted. The court approved ten examinations — not an open-ended number — and built in procedural guardrails to keep the process efficient.

What kinds of internal company documents are relevant in a class action?

Documents are relevant if they relate to the common issues as certified — not simply because they exist inside the company. The court in this case assessed whether questions about how Uber developed its app features were fair game. It found that internal design records, testing materials, pricing presentations, surveys, and key performance indicators could be relevant, provided the focus stayed on the actual features and how they functioned during the class period.

By contrast, the court dismissed requests for hyperlinked materials and algorithm source code. Those requests went beyond what was needed to address the real issues in dispute. This is a reminder that relevance in class proceedings has a defined boundary: the common issues, not the full sweep of a defendant’s internal operations.

Who gets to choose which class members are examined?

In this case, the court approved the defendants’ right to select the ten class members to be examined. That might seem surprising — why would the defendant choose? The rationale is efficiency and focus: the defendant is best positioned to identify which class members’ experiences are most relevant to the issues it needs to explore.

The court balanced this by imposing structure. Examinations are oral, limited to half a day each, and conducted under case management directions. Class members do not face open-ended depositions. The process is designed to gather targeted evidence on common issues without turning into a fishing expedition.

What does this mean for gig workers in Ontario?

Gig workers who are class members in proceedings like this one should know that being examined is possible but not guaranteed, and that the process is court-supervised. If you are selected, the examination is limited in time and scope — it is not the same as being a party to a lawsuit yourself.

More broadly, this decision confirms that Ontario courts take seriously their role as gatekeepers in class proceedings. The goal is to allow defendants a fair opportunity to gather evidence while protecting ordinary class members from disproportionate burdens. Our Ontario litigation lawyers regularly advise clients on rights and obligations in class proceedings and complex civil litigation.

Practical takeaways for class members and gig workers

• Being a class member does not automatically mean you will be examined. Leave must be obtained from the court, and only a small number of members are typically selected.
• Examinations are limited in scope and time. Courts impose guardrails — in this case, half-day oral sessions — to prevent class members from facing the same burden as named parties.
• Relevance is tied to the certified common issues. A defendant cannot use class member examinations to explore issues outside the certified scope of the action.
• Internal company documents are not all producible. Requests for algorithm code or hyperlinked materials can be refused if they go beyond what is needed to address the actual issues.
• If you receive notice that you may be examined as a class member, seek legal advice promptly. Understanding your rights before the examination is critical.

If you are involved in a class action or have questions about civil litigation in Ontario, our team at UL Lawyers offers a free initial consultation from our Burlington office and serves clients across the province. Reach out to learn more about our civil litigation services.

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This article is automated commentary on a public court decision and is for general information only — not legal advice. Decisions rely on facts unique to each case. If you are affected by a similar issue, contact a lawyer for advice specific to your situation.