Ian Wilson

The appellant appealed the dismissal of his motion to certify a class proceeding for unpaid overtime wages against his former employers.

The Divisional Court dismissed the appeal, upholding the motions judge's findings that the appellant failed to establish a cause of action against one defendant, failed to show the existence of two or more class members, failed to provide a litigation plan, and that preferable procedures such as small claims actions or employment standards complaints were available.

The court also rejected the appellant's argument that the defendants should have been ordered to produce lists of class members, as the appellant had not pursued this request prior to the certification motion.

The plaintiff sought to certify a class action against the defendants for alleged unpaid overtime wages, arguing that the defendants misapplied a road building exemption to employees working at permanent asphalt facilities.

The Superior Court of Justice dismissed the certification motion, finding that the plaintiff failed to meet the evidentiary burden under section 5(1) of the Class Proceedings Act.

Specifically, the plaintiff provided no evidence of any other employee in the same circumstances, failed to establish common issues that would not require highly individualized assessments, and failed to demonstrate that a class action was the preferable procedure compared to Small Claims Court or Employment Standards Act remedies.

Furthermore, the plaintiff failed to produce a workable litigation plan.

In a proposed employment class proceeding, the plaintiff moved to amend an already amended statement of claim to broaden the proposed class definition and extend the proposed class period.

The court held that the class definition amendment was permissible under Rule 26.01 because it clarified the location-based nature of the claim and did not amount to an abuse of process.

However, the attempt to extend the class period from July 8, 2008 back to September 4, 2001 was refused because the original pleading acknowledged a two-year limitation period and no evidence was adduced to rebut presumed discovery under s. 5(2) of the Limitations Act, 2002.

Prejudice to the defendants was inferred from the expiry of the limitation period.

The applicant filed a human rights application alleging discrimination on the basis of disability when the respondents failed to accommodate his absence and terminated his employment.

Prior to the hearing, the applicant requested an order to exclude the respondents' proposed evidence relating to his criminal charges and police custody, arguing it was irrelevant and prejudicial.

The Tribunal dismissed the request, finding that the proposed evidence of police officers regarding the applicant's whereabouts and ability to communicate appeared relevant to the issues in dispute, and that the admissibility of documentary evidence would be best determined during the hearing.

The applicant filed a complaint alleging that the responding party union breached its duty of fair representation under section 74 of the Labour Relations Act, 1995.

The applicant complained about events from 1997 and 1998, including the combination of her job with another position, lack of forklift training, and her subsequent retirement.

The union brought a preliminary motion to dismiss the application for undue delay and failure to disclose a prima facie case.

The Board dismissed the application on the ground of undue delay, finding the 19-month delay to be prejudicial and inadequately explained.

The Board also noted that, even if not dismissed for delay, the application would be dismissed for failing to disclose a prima facie case, as the applicant never requested the union to file a grievance or take specific action.