Bartholomew v. Coco Paving Inc., 2019 ONSC 2919

CITATION: Bartholomew v. Coco Paving Inc., 2019 ONSC 2919

DIVISIONAL COURT FILE NO.: DC 17/1062

DATE: 20190521

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

D.L. CORBETT, MYERS and SHEARD JJ.

B E T W E E N:

FREEMAN BARTHOLOMEW

Appellant

• and -

COCO PAVING INC. and LAFARGE CANADA INC.

Respondents

Counsel:

Ian Wilson, for the Appellant

John C. Field, for Lafarge Canada Inc.

Leslie A. Brown, for Coco Paving Inc.

Heard at Oshawa: January 21, 2019

DECISION

D.L. Corbett J.

[1] Mr Bartholomew appeals the decision of Edwards J.[^1] dismissing his motion to certify a class proceeding against the respondents under the Class Proceedings Act[^2] (the "CPA").

The Nature of the Case

[2] Mr Bartholomew was a non-unionized employee of Lafarge Paving & Construction Limited ("LPCL") between June 2008 and 2009[^3] and then an employee of Coco Paving Inc. between June and December 2009.[^4] Mr Bartholomew was paid time-and-a-half for overtime hours worked in excess of 55 hours per week. The Employment Standards Act (the "ESA") requires that overtime rates be paid for time worked in excess of 44 hours per week.[^5] There are exceptions to this general principle: managers need not be paid overtime[^6] and on-site road construction workers need not be paid overtime until they have worked 55 hours in a week[^7].

[3] Mr Bartholomew alleges that the exceptions do not apply to him: he worked in an office doing clerical and related office work. Mr Bartholomew also alleges that there are more than 100 employees of the defendants in Ontario who have been wrongfully denied overtime wages when they worked more than 44 hours per week. Mr Bartholomew seeks to pursue a class proceeding on behalf of all non-unionized, non-managerial employees of the defendants denied their rightful overtime pay.[^8]

[4] Edwards J. denied the motion for certification for the following reasons:

a. Mr Bartholomew failed to establish that he was ever employed by the defendant Lafarge Canada Inc. He was employed by a different Lafarge company, LPCL, but there is no allegation of common employment among Lafarge companies.[^9] Thus Mr Bartholomew failed to establish that he has a cause of action against Lafarge Canada Inc.[^10]

b. Mr Bartholomew failed to establish that there are two or more persons with a common complaint against the defendants.[^11]

c. The case, as framed by Mr Bartholomew, would require individual analysis of each class member's terms of employment, including their position, duties, and union status: there is little apparent commonality among proposed class members.[^12]

d. There are preferable procedures available to a class proceeding: actions in the Small Claims Court or under the Simplified Rules (depending on the size of the claim), and claims to the Employment Standards Branch of the Ontario Ministry of Labour under the ESA.[^13]

e. Mr Bartholomew failed to put forward a litigation plan for the proposed class proceeding and failed to demonstrate that counsel had the necessary knowledge, skill and experience to prosecute the proposed class proceeding.[^14]

[5] Edwards J. dismissed the certification motion with costs to the defendants of $200,000.[^15]

Issues on Appeal

[6] Mr Bartholomew appeals all aspects of the decision below. He also raises an additional issue: the defendants did not provide lists of proposed class members to Mr Bartholomew pursuant to s.5(3) of the CPA.[^16] He argues that this failure was why he had difficulties addressing concerns identified in the reasons of Edwards J., and he submits that he should have been given a chance to address those concerns after receiving lists of class members.

[7] The respondents argue that there is no error in the decision below. They submit that the issue of lists of proposed class members had to be raised long before the certification motion and should not be entertained now. Any of the five reasons given by the motions judge would be sufficient to deny certification and together form an overwhelming basis for the decision below.

Disposition

[8] Whether a viable class proceeding could have been pursued for the claims raised in this case is not the issue on this appeal. The appellant had many years to put his certification motion before the court and the record before the motions judge fell far short of meeting the test for certification. For the reasons that follow, the appeal is dismissed.[^17]

Preliminary Issue: List of Proposed Class Members

[9] This action was commenced in 2010. The certification motion was originally scheduled before Shaughnessy J. in early 2013. That motion was adjourned and Edwards J. was designated as the class proceedings judge. Motions were then brought before Edwards J. in 2013, including a request by the appellant that the defendants provide lists of proposed class members pursuant to s.5(3) of the CPA. When the motions were argued, the appellant did not pursue his request for lists of class members, as noted by Edwards J. in an endorsement dated October 23, 2013. The appellant did not appeal this decision. Nor did he subsequently move for an order that the defendants provide him with lists of class members.

[10] The certification motion was argued before Edwards J. on May 15 and 16, 2017. The parties had exchanged materials, conducted cross-examinations, and filed factums, all without a further motion for lists of proposed class members. No such motion was brought returnable at the certification motion. During argument, appellant's counsel relied upon the absence of such lists to explain why there was not a richer record to establish another class member and to establish common issues among class members. When the point was pressed during argument, appellant's counsel then asked for an order for lists of class members from the defendants.

[11] The burden of proof on a certification motion rests on the appellant. The process for completing evidence and bringing the certification motion back for final argument took four years from the first scheduled motion date and seven years after the action was commenced. If the appellant considered that he was entitled to and needed lists of class members for the certification motion, he had to pursue that issue long before argument of the certification motion on the merits. The motions judge made no error in proceeding on the basis of the record before him, given the history of the proceeding.

First Issue: Mr Bartholomew Was Never Employed by Lafarge Canada Inc.

[12] This issue possibly could have been corrected by an amendment to the pleadings to allege "common employment" among Lafarge companies. This was not sought before or at the return of the certification motion, which the motions judge described as "incredible".[^18] Mr Bartholomew seeks the amendment now, before us, by a request in his factum. I would not grant the amendment; I would decide the appeal on the basis of the record before Edwards J.

[13] "Common employment" does not arise inevitably from corporate affiliation. Lafarge could have a basis to oppose an amendment alleging common employment. And if an amendment was granted, Lafarge would be entitled to present evidence on the certification motion to address the issue of common employment. Lafarge was entitled to know the case it had to meet and to be given a chance to meet it. It is much too late for the appellant to seek this amendment now, before us.

[14] The onus is on the appellant to show that he has a cause of action against the defendants: CPA, s.5(1)(a). Of course, a claim should not be struck solely because of technical pleading problems which could be corrected by amendment: it must be "plain and obvious" that there is no claim.[^19] The Rules of Civil Procedure liberally permit amendments. However, where the deficiency has long been apparent, the case has been underway for years, a pleadings amendment could require a contested motion and, if successful, an adjournment to adduce further evidence, it is within the discretion of a motions judge to refuse an amendment. Here, even that exercise of discretion does not raise an arguable issue on appeal because an amendment motion was never brought before the motions judge.

[15] In my view, Edwards J. made no error in concluding that the appellant has not made out a claim against the defendant Lafarge Canada Inc., and this failure should not be addressed by permitting an amendment on appeal.

Second Issue: No Evidence of Other Class Members

[16] There are three aspects to this issue. First, Mr Bartholomew identified Paul King as another employee of the defendants who is a member of the proposed class. Edwards J. found otherwise. Second, Mr Bartholomew argues that it is obvious that there are other members of the class because of the principles involved in the case: the defendants are large concerns and there must be many such workers. Mr Bartholomew estimates the class is more than 100 people, and he argues that this is a reasonable estimate in the absence of lists from the defendants pursuant to s.5(3) of the CPA. Third, if more evidence is required, then it was unfair to decide the certification motion without first ordering the defendants to produce lists pursuant to CPA, s.5(3).

(a) Paul King

[17] The appellant argued before the motions judge that Paul King fits into the definition of the proposed class. Mr King, himself, feels otherwise. In an affidavit sworn July 9, 2012, nearly five years before the certification motion was argued, Mr King deposed that he is a manager, with overall responsibility for operating Coco Paving's Ajax plant. The appellant in his affidavit sworn October 12, 2012, acknowledged this evidence and accepted that Mr King did not fit into the definition of the proposed class. The motions judge made no error in concluding that Mr King does not meet the definition of the proposed class.

[18] During argument it was suggested that Mr King is not a manager and does fit the proposed class definition because he was paid overtime wages. This, Mr Wilson argued, was an acknowledgment by the defendants that Mr King is not a managerial employee within the meaning of the ESA and its Regulations for the purposes of overtime wages. With respect, this argument has no merit. The ESA establishes minimum entitlements. Overtime wages are not minimum entitlements of managers. However, this does not preclude an employer from paying overtime to managers.

(b) Mr Bartholomew's "Common Sense" Estimate

[19] The motions judge found as follows in respect to the appellant's own evidence about the existence of other members of the proposed class:

The Appellant seeks to meet his evidentiary burden of establishing an identifiable class of two or more persons at paragraph 63 of his affidavit, when he states that he does not know the names and addresses of more than a few of the approximately 100 members of the proposed class. In point of fact the Appellant does not refer to a single member of the identifiable class by name, nor does he provide any affidavit evidence from any proposed member of the class that they meet the definition...

In essence, the highest that the Appellant's evidence can be said to have reached is merely a bald assertion on his part that a class exists. Such a bald assertion does not meet the barest requirements of the CPA....[^20]

[20] These findings are entitled to deference. I see no palpable and overriding error of fact or any error of law in them. As found by Nordheimer J. (as he then was)"[t]he scale and complexity of the class action process ought not to be invoked at the behest, and for the benefit, of a single complainant."[^21] It was for Mr Bartholomew to show that there is at least one other person fitting within the definition of the proposed class. He did not do this.

(c) Unfairness of Deciding Without CPA, s.5(3) Lists

[21] As explained above, there was no unfairness in proceeding without lists pursuant to CPA, s.5(3). The appellant rested his case on Mr King and his "common sense" estimate. That was his choice. He is restricted to those arguments, not having pursued lists before the certification motion.

(d) Conclusion

[22] The onus is on the appellant to establish that there are two or more members of the proposed class (CPA, s.5(1)(b)). This is a "relatively low evidentiary standard."[^22] The jurisprudence is clear that "it is not sufficient to make a bald assertion that a class exists. The record before the Court must contain a sufficient evidentiary basis to establish the existence of the class."[^23] While there are cases where the existence of multiple class members is apparent from the nature of the proposed claim,[^24] this is not such a claim. As found by the motions judge"[i]t is simply not obvious from the evidentiary record... that the existence of more than one claim is apparent."[^25] I see no error in this conclusion.

Third Issue: Commonality of Issues

[23] The appellant points to the decision of E.M. Morgan J. in Azar v. Strada-Crush Limited[^26] as authority that employment standards claims for overtime wages may be pursued in class proceedings. I agree; they may be. However, that does not mean that such claims always have common issues suitable for a class proceeding. Each case turns on its own facts.[^27]

[24] Edwards J. had but one example of a second employee alleged to be a member of Mr Bartholomew's proposed class: Paul King. The parties exchanged affidavits and conducted cross-examinations to address whether Mr King was a member of the proposed class. Based on a close reading of the evidence, and Mr. King's particular circumstances, the motions judge concluded that Mr King was a manager and not a member of the proposed class. In addition, the motions judge noted significant conflict in the evidence respecting Mr Bartholomew's own status.[^28]

[25] The motions judge generalized from the analysis of the evidence relating to Messrs King and Bartholomew to conclude that individual issues respecting class membership appeared to be disproportionate to common issues (which, it must be recalled, are comprised of payroll records and the applicable provisions of the ESA and its regulations). That is, the common issues presented as straightforward and the individual issues as complex. I appreciate that this conclusion arises from a sample size of only two people, but that was the record that was put before the motions judge.

[26] It is in this way that the decision of the motions judge and the decision in Azar v. Strada-Crush Limited do not conflict. In Azar, Morgan J. found that there was an identifiable class of 154 members (past and present yard workers of the defendant engaged in the production of aggregate).[^29] Morgan J. concluded that, notwithstanding substantial individual issues, there were contested common issues suitable for resolution within a class proceeding, and that the individual issues could be addressed appropriately within a class proceeding.[^30] In the case on appeal, Edwards J. concluded that the real contest, in the proposed class action, would be over the individual issues, not the common issues.

[27] Given the record before the motions judge, he made no error in concluding as he did on this issue. Whether better evidence could have led to a different result is beside the point: the motions judge was entitled to decide the motion on the record before him.

Fourth Issue: Preferable Procedures

[28] The motions judge found that there are two preferable procedures available to the appellant and other class members: private lawsuits and complaints to the Employment Standards Branch of the Ministry of Labour.

(a) Private Lawsuits

[29] Private lawsuits are available in the circumstances of this case. While the amounts in issue are relatively small, the process in Small Claims Court is fast and parties do not have to use lawyers.

[30] This case cannot be compared to cases that require complex expert evidence. It seems to me that the case is quite straightforward: what is the meaning of the exceptions to the general principle that overtime wages be paid for more than 44 hours per week? This is a question of law or perhaps a question of mixed fact and law. The adjudicative facts are amenable to quick trials in the Small Claims Court: What do the workers do? Where do they work? How does this work fit into the defendants' overall business? And do the exceptions in the ESA Regulation apply or not apply to these workers? I see no reason why this could not be tried in a cost-effective way in the Small Claims Court. If damages exceed the monetary jurisdiction of that court ($25,000), then proceedings can be taken in the Superior Court under the Simplified Rules.

(b) Employment Standards Complaints

[31] There is another way to seek to collect overtime. A complaint can be made to an Employment Standards Officer, who is empowered to investigate and make an order for unpaid overtime. Where multiple employees involved, an order can be made respecting all affected employees.[^31]

[32] I understand that the monetary jurisdiction for employment standards claims used to be limited to $10,000, and was so at the time this claim was commenced, back in 2010. I also understand that there used to be a limitation period of six months (which has now been changed to the two year limitation period that would apply to the proposed claims in this proceeding). But this is no answer to the motions judge's analysis of preferable procedures. For claims that were not amenable to a claim to an Employment Standards Officer, the option of a private lawsuit was available.

Conclusion

[33] Morgan J. had no doubt that a class proceeding was the "preferable procedure" in Azar, on somewhat similar facts. However, in that case, Morgan J. was satisfied that "the majority of the Class Members are former employees... who have left this job behind – some of them many years ago."[^32] In addition"allegations of bad faith and systemic employer misconduct... are best explored in a common issues trial."[^33] Neither of these elements are raised in the case at bar.

[34] As I noted above, the question of "[w]hether a viable class proceeding could have been pursued for the claims raised in this case is not the issue on this appeal."[^34] On the authority of Azar, a class proceeding can be an appropriate procedure for ESA overtime claims. However that does not mean that certification will be granted without satisfying the test under s.5(1) of the CPA. The "preferable procedure" analysis applies, not to a claim in the abstract, but to the proposed claims of the proposed class in the specific case before the court. On the record before the motions judge, he made no reversible error on this issue, and his finding does not conflict with the conclusion of Morgan J.

Fifth Issue: No Litigation Plan

[35] The cases distinguish between a deficient litigation plan and the absence of any litigation plan at all.[^35] The "plan" put forward by the appellant was to obtain pertinent payroll records, settle the case on the basis of those records, and then administer the settlement. The motions judge found that this was "no plan" at all rather than a deficient plan. This finding is entitled to deference and I see no basis to interfere with it.

[36] Any case may settle before trial, of course. But a litigation plan is a proposed process to take the case through to the end of trial – assuming that the case does not settle – and then through implementation of any judgment that may be obtained. The litigation plan is important. It helps the court to assess the relationship between common and individual issues, to compare the proposed class proceeding with alternative procedures that may be available, and to decide whether counsel has the requisite experience and competence to conduct the class proceeding. It also provides a road map to move forward after certification.

[37] Mr Bartholomew again relies on the decision of Morgan J. in Azar to argue that a plan may be provided after the certification motion. That is not what I take from Morgan J.'s decision. First, the history of the two cases is very different. Morgan J. explains the absence of a plan in the materials before him as follows:

The one issue that has given me pause is that spelled out in section 5(1)(e)(ii) – whether the Appellant has produced a plan for the proceeding that sets out a workable method of advancing the proceeding on behalf of the class. As noted at the outset of these reasons for judgment, the Appellant initially had in mind combining this certification motion with a motion for summary judgment. He did not pursue summary judgment here, presumably on the advice of counsel, but his motion materials did not reflect this change of approach. Accordingly, the affidavit of the Appellant set out no real litigation plan, but rather simply stated that a summary judgment motion would immediately ensue on the heels of the certification motion.

A litigation plan is the document that best signals to the court whether the class proceeding as proposed by the Appellant is workable: Carom v Bre-Ex Minerals Ltd.[^36] Accordingly, before certifying an action under the CPA, the court needs to be assured that there is such a plan in place. I assume that the failure to produce a litigation plan (other than the two steps described in the Appellant's affidavit – issue an action and bring a motion) was an oversight that resulted from the last-minute decision to pursue the certification motion here without a summary judgment motion. Following the court hearing I therefore invited both sides to make further written submissions on the matter of a litigation plan.[^37]

[38] Morgan J. did not dispense with the requirement for a plan. He was satisfied that there was a reasonable explanation for the absence of a plan and permitted the parties to address this issue in writing, after oral argument, but as part of the certification motion. He noted:

Pursuant to my invitation, counsel for the Appellant took the opportunity to submit a full litigation plan that sets out all of the proposed stages of the action. The plan starts with the pre-litigation inquiries and investigation done by Appellant's counsel, and moves through commencement of the action, certification, notices to the class, scheduling of documentary and oral discovery, timing for the exchange of any expert opinions, timing for the identification of witnesses (other than the Appellant, who will be the class' primary witness), timing and procedures for a common issues trial, approaches to determination of individual issues, administration and distribution of any amounts recovered by the class.[^38]

Morgan J. then considered criticisms of the litigation plan provided by the defendant and concluded:

The Defendant's issues with the Appellant's litigation plan do not address the actual conduct of the litigation. They are for the most part quibbles with its drafting or a desire for full, upfront determination of the mechanics of processes that will be implemented at the very end of the case. They therefore do not undermine the usefulness of the litigation plan as now submitted by Appellant's counsel.[^39]

In the result, Morgan J. found that the plan provided by the appellant did meet the requirements of s.5(1)(e) of the CPA. Rather than dispensing with this requirement, Morgan J. gave the appellant a further opportunity to meet it.

[39] It would have been open to the motions judge, in this case, to give the appellant an opportunity to put a plan before the court. If that had been the only barrier to certification, and if there was some explanation for why the appellant had failed to meet this requirement by the return of the certification motion, perhaps he would have exercised his discretion to do so.

[40] But as found by the motions judge"[a] deficient litigation plan can... be rectified. No litigation plan, however, fails to meet the basic requirements of the CPA."[^40] It would be an error to dispense with the requirement for a litigation plan. The motions judge made no error in characterizing the appellant's "plan" as "no plan at all". And the motions judge made no error in the exercise of discretion to not invite the appellant to put a plan before the court after oral argument but before decision on the certification motion.

Conclusion

[41] The appellant failed to pursue the lists of proposed class members before the certification motion. He failed to amend his pleadings to allege a cause of action against one of the two defendants. He failed to put forward a litigation plan. He failed to show that there are at least two members of his proposed class. The case was seven years old by the time it reached the motions judge for a decision on certification. It was no error for the motions judge to decide the motion on the basis of the materials before him. And on those materials, he properly exercised his discretion to refuse certification.

Disposition and Costs

[42] The appeal is dismissed. The parties have confirmed that costs of this appeal have been settled between the defendants and the Class Proceedings Fund.

D.L. Corbett J.

I agree Myers J.

I agree Sheard J.

Released: May 21, 2019

[^1]: Bartholomew v. Coco Paving Inc., 2017 ONSC 6014 (the "Reasons"). [^2]: Class Proceedings Act, SO 2002, c.6. [^3]: Mr Bartholomew alleges that he was employed by Lafarge companies for a total of 22 years. [^4]: Coco Paving purchased the business of LPCL and other Lafarge companies on June 15, 2009 and was a successor employer of Mr Bartholomew as a result. [^5]: Employment Standards Act, 2000, SO 2000, c.41, s.22(1). [^6]: O. Reg. 285/01, s.8(b). [^7]: O. Reg. 285/01, s.13. [^8]: The parties did not agree on Mr Bartholomew's job duties: see Reasons, paras. 6-14. [^9]: As noted above, Mr Bartholomew claims to have been employed by different Lafarge companies over a period of 22 years. There is no evidence, however, that Lafarge Canada Inc. ever employed Mr Bartholomew. [^10]: Reasons, para. 36. [^11]: Reasons, paras. 28-35. [^12]: Reasons, paras. 36-45. [^13]: Reasons, paras. 46-51. [^14]: Reasons, paras. 52-55. [^15]: Costs of the certification motion were settled between the Class Proceedings Fund and the defendants. [^16]: On the appeal, appellant's counsel referred to the statutory requirement as a "list of class members". CPA, s.5(3) requires the parties to "provide the party's best information on the number of members in the class" and not a list of persons in the class. Since it is not necessary for this appeal to decide what is required under s.5(3), I decline to do so and use the appellant's phrase "lists of class members" as shorthand for the requirements of s.5(3). [^17]: The parties were advised at the end of the appellant's oral argument that the appeal was dismissed with these reasons to follow. [^18]: There had been two prior amendments to the statement of claim. [^19]: Hollick v. Toronto (City), 2001 SCC 68, para. 175. [^20]: Reasons, paras. 31-32. [^21]: Bellaire v. Independent Order of Foresters (2004), 19 CCLI (4th) 35, para. 33 (Ont. SCJ). [^22]: Sun-Rye Products Ltd. v. Archer Daniels Midland Company, [2013] 3 SCR 345, para. 61. [^23]: Lau v. Bayview Landmark Inc., [1999] OJ No. 4060 (SCJ), per Winkler J. (as he then was). [^24]: Keatley Surveying Inc. v. Teranet Inc., 2015 ONCA 248. [^25]: Reasons, para. 34. [^26]: Azar v. Strada-Crush Limited, 2018 ONSC 4763. [^27]: Leave to appeal to the Divisional Court in Azar v. Strada-Crush Limited, 2018 ONSC 4763 was dismissed on April 5, 2019 (unreported, per D.L. Corbett, Mew and Myers JJ.). Note that two of the judges dismissing leave to appeal in Azar are on the panel deciding this appeal. [^28]: Reasons, paras. 6-13. [^29]: Azar v. Strada-Crush Limited, 2018 ONSC 4763, paras. 13-18. [^30]: Azar v. Strada-Crush Limited, 2018 ONSC 4763, paras. 19-45. [^31]: ESA, s.103(3). [^32]: Azar v. Strada-Crush Limited, 2018 ONSC 4763, para. 46. [^33]: Azar v. Strada-Crush Limited, 2018 ONSC 4763, para. 47. [^34]: Para. 8, above. [^35]: McCracken v. Canadian National Railway Company, 2012 ONCA 445; Caputo v. Imperial Tobacco Ltd. (2004), 236 DLR (4th) 345 (Ont. SCJ), para. 78; Bellaire v. Independent Order of Foresters (2004), 19 CCLI (4th) 35 (Ont. SCJ), para. 53. [^36]: Carom v. Bre-Ex Minerals Ltd. (1999), 44 OR (3d) 173 at 223 (SCJ), aff'd (1999), 1999 19916 (ON SCDC), 46 OR (3d) 315 (Div. Ct.). [^37]: Azar v. Strada-Crush Limited, 2018 ONSC 4763, paras. 52-53. [^38]: Azar v. Strada-Crush Limited, 2018 ONSC 4763, para. 55. [^39]: Azar v. Strada-Crush Limited, 2018 ONSC 4763, para. 63. [^40]: Reasons, para. 55.