Daniel Lublin

The plaintiff in a certified class action regarding unpaid statutory vacation and holiday pay moved to settle the Notice Plan and Notice of Certification.

The parties disagreed on the opt-out deadline, the contents of the opt-out affidavit, and the text of the Notice of Certification.

The court held that the opt-out deadline should be 60 days after the last notice is published and that the opt-out affidavit must identify the individuals who opted out.

However, the court rejected the defendants' proposed revisions to the Notice of Certification, finding them to be unnecessary, unfair, and potentially intimidating to class members.

The Notice of Certification was approved substantially in the form drafted by class counsel.

Following the death of the judge who certified this national class action regarding vacation and public holiday pay, the parties could not agree on the terms of the certification order.

The plaintiff brought a motion to settle the order under rule 59.04(14).

The court settled the class definition start dates by applying the ultimate limitation periods for provinces that have them, and the basic limitation periods (adjusted for Covid-19 suspensions) for provinces that do not.

The court also compendiously restated the liability common issue to include unjust enrichment.

The plaintiff brought a motion to certify a national class action alleging that the defendant brokerage firm failed to provide vacation and public holiday pay to commissioned employees in breach of employment standards legislation.

The defendant argued that commissions continued to be paid while employees were on vacation and that the onus was on employees to prove non-payment.

The court found that the employer bears the burden of proving statutory payments were recorded and made, and that the absence of a class-wide system to record and report these obligations provided some evidence of commonality.

The court certified the class action, finding all requirements under section 5(1) of the Class Proceedings Act, 1992 were met.

The plaintiff was terminated without cause from his position as a commissioned salesperson just prior to the COVID-19 pandemic lockdowns.

He brought a motion for summary judgment seeking pay in lieu of notice, including base salary, commissions on pending deals, and bonus pool payments.

The court awarded a 10-month notice period, explicitly accounting for the pandemic's negative impact on his job search.

The court also awarded the plaintiff his commission on a major transaction that closed during the notice period, but declined to award commission on a transaction that remained pending after the notice period expired.

Following the dismissal of the applicant's motion for an interim injunction against a former employee, the parties made written submissions on costs.

The respondent sought elevated costs on a substantial or full indemnity basis, arguing the application was meritless and intended to intimidate.

The court found the application was not frivolous and counsel conduct was not inappropriate.

Costs were awarded to the respondent on a partial indemnity basis fixed at $12,500 all inclusive.

The applicant daycare facility sought an interim injunction to restrain a former employee from soliciting its clients and employees, alleging breach of a non-solicitation clause.

The court applied the RJR-MacDonald test and found that while there was a serious issue to be tried, the applicant failed to establish irreparable harm.

The loss of one employee and two clients was either compensable in damages or not clearly linked to solicitation, and there was no evidence of ongoing solicitation.

The application for an interim injunction was dismissed.

Following a successful summary judgment motion by the plaintiffs in a wrongful dismissal action, the court addressed costs.

One defendant sought costs against the other defendant rather than the plaintiffs, arguing that the other party’s litigation position caused its involvement in the action.

The court rejected that position and held that no costs would be awarded for or against that defendant.

The court found the remaining defendant liable for the plaintiffs’ costs and determined that substantial indemnity costs were appropriate due to the defendant’s unfounded and strategic allegation of termination for cause, which unnecessarily complicated and lengthened the proceedings.

The plaintiffs brought a motion for summary judgment seeking pay in lieu of reasonable notice following termination of a consulting relationship related to the establishment of a Schedule 1 bank.

The defendant bank argued the individual plaintiff was never its employee but rather a consultant engaged through a consulting company.

The court held that, at minimum, the consultant functioned as a dependent contractor given his exclusive work for the bank, integration into its operations, and representation to regulators as a senior officer.

Applying principles from employment law regarding reasonable notice, the court determined that eight months’ notice was appropriate.

Summary judgment was granted awarding consulting fees equivalent to eight months’ compensation plus HST and contractual interest.