Jeremy J. Devereux

Following the successful appeal by the defendant overturning the certification of a proposed class action for unpaid overtime, the defendant sought partial indemnity costs of $300,000.

The plaintiff and the Law Foundation of Ontario argued that no costs or a maximum of $50,000 should be awarded, citing the novel legal issues and public interest nature of the case.

The Court of Appeal acknowledged the novel points of law and access to justice considerations under section 31(1) of the Class Proceedings Act, 1992, but held that the Act does not insulate representative plaintiffs from adverse costs.

The court fixed the costs of the appeal at $60,000 on a partial indemnity scale.

The plaintiff brought a proposed class action alleging that the defendant railway company misclassified first line supervisors as managerial employees to avoid paying overtime under the Canada Labour Code.

The motion judge certified the action but significantly redrafted the common issues, rejecting the plaintiff's proposed misclassification issue due to a lack of commonality.

On appeal, the Court of Appeal held that the motion judge correctly rejected the misclassification issue because individualized assessments of job duties were required.

However, the Court found the motion judge erred in certifying a reframed common issue about the minimum requirements for managerial status, as it suffered from the same lack of commonality.

The certification order was set aside.