Enbal Singer

The plaintiffs, former employees who received variable compensation, brought a proposed class action against their former employer for unpaid vacation and public holiday pay.

The employer admitted to miscalculating the pay and made remedial payments for the two years prior to discovery, but relied on the Limitations Act to deny older claims.

The plaintiffs moved for certification and the defendants cross-moved for summary judgment.

The court dismissed the summary judgment motion, finding genuine issues for trial regarding limitation periods and releases.

The court also dismissed the certification motion, concluding that while the first three criteria were met, a class proceeding was not the preferable procedure because individual issues trials regarding limitation periods and releases were inevitable and would not be advanced by a common issues trial.

The respondent, an actor, sued her union (ACTRA) and its rights society in Small Claims Court, alleging they miscalculated and underpaid her royalties (Use Fees) for a movie performance.

The union brought a motion to strike the claim, arguing the court lacked jurisdiction because the dispute arose from a collective agreement.

The Small Claims Court dismissed the motion.

On appeal, the Divisional Court allowed the appeal, holding that the essential character of the dispute concerned the interpretation, application, and administration of the collective agreement and the union's duty of fair representation.

Therefore, the dispute fell within the exclusive jurisdiction of the Ontario Labour Relations Board or a labour arbitrator.

The moving party sought leave to appeal from the order of Glustein J. dated September 9, 2020.

The Divisional Court dismissed the motion for leave to appeal and awarded costs to the responding party fixed at $10,000.