CITATION: Curtis v. Medcan Health Management Inc., 2022 ONSC 5176

DIVISIONAL COURT FILE NO.: 564/21

DATE: 20220919

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

Tzimas, Nishikawa, Davies JJ.

BETWEEN:

Nicole Curtis, AMR Galal and Katrina Buhlman

Plaintiffs/Appellants

– and –

Medcan Health Management Inc., Andrew Carragher, Shaun C. Francis, Edwin F. Hawken, Urban Joseph, Beau Laskey, Thomas P. Reeves, Owen Rogers, and Craig Shepherd

Defendants/Respondents

Andrew Monkhouse, Thomas Slade and Alexandra Monkhouse, for the Appellants

Jeffrey E. Goodman, Elisha C. Jamieson-Davies and Eleanor Vaughan, for the Respondents

HEARD: April 13, 2022

REASONS FOR DECISION

Nishikawa J.

Overview

[1] This is an appeal from the decision of Perell J. (the “certification judge”), dated June 25, 2021, dismissing the Appellant Plaintiffs’ motion to certify their action as a class proceeding (the “Decision”).

[2] The Appellants, Nicole Curtis, Amr Galal, and Katrina Buhlman, are former employees of Medcan. The Respondent, Medcan Health Management Inc. (“Medcan”), is a company that provides medical, therapeutic, and personal health services to consumers. The Respondents Andrew Carragher, Shaun Francis, Edwin Hawken, Urban Joseph, Beau Laskey, Thomas Reeves, Owen Rogers, and Craig Shepherd, are directors of Medcan.

[3] The Appellants brought a proposed class proceeding against Medcan and its directors for failure to pay vacation pay and public holiday as required under the Employment Standards Act, 2000, S.O. 2000, c. 41 (the “ESA”).

[4] In dismissing the Appellants’ motion, the certification judge held that the Appellants failed to meet the preferable procedure criterion under s. 5(1)(d) of the Class Proceedings Act, S.O. 1992, c. 6 (the “CPA”). The certification judge found, however, that the Appellants satisfied the cause of action, class definition, common issues, and representative plaintiff criteria.

[5] On appeal, the Appellants argue that the certification judge erred in law and made palpable and overriding errors of fact in finding that a class action was not the preferable procedure.

[6] For the reasons that follow, the appeal is allowed because the certification judge erred in finding that a class action is not the preferable procedure.

Issues

[7] The Appellants raise the following three issues on appeal:

(a) Did the certification judge err in principle and in his application of the law by failing to apply the some-basis-in-fact standard?

(b) Did the certification judge err in holding that the common issues would not significantly advance the claim?

(c) Did the certification judge fail to conduct the preferable procedure analysis through the lens of judicial economy, access to justice, and behaviour modification?

[8] As further detailed in these reasons, the certification judge erred in principle by failing to conduct the preferable procedure analysis through the lends of judicial economy, access to justice, and behaviour modification. As a result, it is unnecessary to consider the first and second issues raised by the Appellants.

Factual Background

The Unpaid Vacation and Public Holiday Pay

[9] Between April 7, 2018 and April 7, 2020, Medcan employed 743 people. At the time of the Decision, it had 411 employees. Many of Medcan’s employees earn variable compensation, often though not exclusively consisting of a base salary, plus commissions and bonuses.

[10] In June 2019, a Medcan employee who was receiving a base salary plus commissions and bonuses informed Medcan that it had failed to pay him the vacation and public holiday pay that Medcan was required to pay under the ESA. Medcan investigated and found that for over 15 years, it had been calculating vacation and public holiday pay on the base salary only, and not on employees’ variable compensation.

[11] In March 2020, Medcan sought to remedy this mistake and paid to its current and former employees the unpaid vacation and public holiday pay for the period from December 25, 2017, to December 25, 2019. Medcan did not make any payments for the period before 2018, relying on the two-year limitation period set out in the Limitations Act, 2002, S.O. 2002, c. 24, Sched. B.

[12] Ms. Curtis was employed by Medcan from October 2011 to May 2016. Mr. Galal was employed by Medcan in various positions from June 2008 to May 2019. Ms. Buhlman was employed by Medcan from December 2009 to September 2018. Throughout their employment at Medcan, the three Appellants earned a base salary. However, the bulk of their remuneration came from variable compensation in the form of commission payments. Mr. Galal and Ms. Buhlman both received remedial payments from Medcan.

[13] On April 7, 2020, Ms. Curtis and Mr. Galal commenced the proposed class action against Medcan. Ms. Buhlman was subsequently added as a proposed representative plaintiff. The Appellants allege that they and the proposed class members are owed vacation and public holiday pay dating back to 2003.

[14] The Respondents’ Statement of Defence pleads that the Appellants’ claims are barred by the Limitations Act and by full and final releases.

[15] On June 26, 2020, the Plaintiffs brought a motion to certify the action as a class proceeding. The Respondents brought a cross-motion seeking summary judgment of the Appellants’ individual claims.

The Decision

[16] As stated above, the certification judge dismissed the certification motion. The certificate judge found that: the pleadings disclose a cause of action, there is an identifiable class, the claim raises common issues and the proposed representative plaintiffs are appropriate: CPA, s. 5(1). However, the certificate judge found that a class proceeding was not the preferable procedure for resolving the claims.

[17] The Appellants proposed eight common issues. The certification judge certified questions 1 to 4, which all dealt with the question of whether the Respondents breached class members’ employment contracts in how vacation and public holiday pay were paid to class members. The certified common issues are as follows:

1. What were the terms of the class members’ employment contracts?

2. Did the Respondents breach any of those terms, and if so, how?

3. Did the Respondents have a duty to accurately record hours worked by class members in order to compensate them appropriately, and if so, did they breach that duty?

4. Did the Respondents have a duty to maintain a reasonable system to ensure the duties set out in common issue (2) were satisfied for all class member, and if so, did they breach that duty?

[18] The certification judge held that the Appellants did not satisfy the preferable procedure criterion. He found that what would be achieved at a common issues trial would be “infinitesimal” compared to what class members would need to establish at their inevitable individual issues trials. If class members were successful on the common issues, there would be no prospect of an aggregate assessment of their claims and the action would “inevitably proceed to individual issues trials,” resulting in only marginal utility in a common issues trial from an access to justice perspective.

[19] The certification judge held that while there was “some basis in fact to conclude that there may be Class Members who received a deficient remedial payment of vacation pay and public holiday pay, practically speaking, there will be very few, if any, Class Members of this type.” The certification judge held that what this case is “really about” is the Respondent’s decision to rely on the presumptive two-year limitation period.

[20] The certification judge found that an individual issues trial would involve the issues of whether the class member’s claim was statute-barred and whether the employee signed an enforceable release at the time of termination of employment, and the onus would be on the employee to rebut the presumption of the running of the limitation period under s. 5(2) of the Limitations Act, 2002. The certification judge held that holding a common issues trial would simply delay access to justice for former employees.

[21] The certification judge noted that he would have found that Ms. Curtis, Mr. Galal, and Ms. Buhlman were appropriate representative plaintiffs, and the proposed litigation plan would have been adequate for certification.

[22] The certification judge dismissed the Respondents’ motion for summary judgment on the basis that there were genuine issues for trial on the question of whether the Appellants’ claims were statute-barred.

Analysis

The Applicable Standard of Review

[23] Because the appellants are exercising a statutory right of appeal under s. 30(1) of the CPA,[^1] the appellate standards of review apply. Questions of law are reviewable on a correctness standard. Questions of fact and questions of mixed fact and law from which the legal principle is not readily extricable are reviewable on a standard of palpable and overriding error: Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, at paras. 8, 10, 36-37.

[24] A certification judge’s determination with respect to the preferable procedure criterion under s. 5(1)(d) of the CPA is entitled to “special deference” because of the weighing and balancing of multiple factors: Pearson v. Inco Ltd., 2006 913 (ON CA), [2005] O.J. No. 4918 (C.A.), 261 D.L.R. (4th) 629, at para. 43. However, “deference does not protect the decision against review for errors in principle which are directly relevant to the conclusion reached”: AIC Limited v. Fischer, 2013 SCC 69, at para. 65. The failure of a certification analysis to comport with Fischer was a factor that reduced the deference owed to the certification judge: Bayens v. Kinross Gold Corporation, 2014 ONCA 901, 327 O.A.C. 156, at para. 107; Fantl v. Transamerica, 2016 ONCA 633, 351 O.A.C. 326, at para. 25.

The Relevant Statutory Provisions

[25] The criteria for certification as a class proceeding is set out in s. 5(1) of the CPA, which states as follows:

Certification

5(1) The court shall certify a class proceeding on a motion under section 2, 3 or 4 if,

(a) the pleadings or the notice of application discloses a cause of action;

(b) there is an identifiable class of two or more persons that would be represented by the representative plaintiff or defendant;

(c) the claims or defences of the class members raise common issues;

(d) a class proceeding would be the preferable procedure for the resolution of the common issues; and

(e) there is a representative plaintiff or defendant who,

(i) would fairly and adequately represent the interests of the class,

(ii) has produced a plan for the proceeding that sets out a workable method of advancing the proceeding on behalf of the class and of notifying class members of the proceeding, and

(iii) does not have, on the common issues for the class, an interest in conflict with the interests of other class members.

Did the Certification Judge Err in Conducting the Preferable Procedure Analysis?

The Applicable Principles

[26] Pursuant to s. 5(1)(d) of the CPA, the plaintiff must satisfy the court that “a class proceeding would be the preferable procedure for the resolution of the common issues[.]” In Fischer, at para. 48, the Supreme Court held that in order to satisfy the preferability requirement, the representative plaintiff must show: “(1) that a class proceeding would be a fair, efficient and manageable method of advancing the claim, and (2) that it would be preferable to any other reasonably available means of resolving the class members claims.”

[27] The Supreme Court confirmed that the preferability inquiry must be conducted “through the lens of the three principal goals of class actions, namely judicial economy, behaviour modification and access to justice.” The court noted that this is a “comparative exercise”, and the court must consider “the extent to which the proposed class action may achieve the three goals of the CPA, but the ultimate question is whether other available means of resolving the claim are preferable, not if a class action would fully achieve those goals.” Fischer, at paras. 22-23.

[28] In Fischer, the Supreme Court emphasized access to justice in particular and stated that a “class action will serve the goal of access to justice if: (i) there are access to justice concerns that a class action could address; and (ii) these concerns remain even when alternative avenues of redress are considered.” The Supreme Court set out the following five questions:

(1) What are the barriers to access to justice?

(2) What is the potential of the class proceedings to address those barriers?

(3) What are the alternatives to class proceedings?

(4) To what extent do the alternatives address the relevant barriers?

(5) How do the two proceedings compare?

[29] In Fischer, at para. 26, the Supreme Court indicated that the five questions need not be considered in isolation or in a specific order, but “should inform the overall comparative analysis.”

[30] Barriers to access to justice may include the high cost of litigation in comparison to the modest value of the claim; psychological or social barriers such as ignorance of the availability of substantive legal rights, ignorance of the fact that significant injuries occurred, limited language skills, the frail emotional or physical state of the claimants; fear of reprisals by the defendant; or alienation from the legal system. “The focus at this stage of the analysis is on whether, if the alternative or alternatives were to be pursued, some or all of the access to justice barriers that would be addressed by means of a class action would be left in place.” Fischer, at paras. 27-38.

Application to the Case

[31] The Appellants submit that the certification judge erred in conducting the preferable procedure analysis because, of the three principal goals of class actions, he did not consider behaviour modification and did not sufficiently consider access to justice. The Appellants submit that the certification judge failed to consider the five questions identified in Fischer, or that he did so in a cursory manner.

[32] The Respondents submit that the certification judge has the discretion to conclude that behaviour modification is not relevant to the facts at hand, and that the certification judge’s choice not to expressly analyze behaviour modification is owed deference on appeal. The Respondents submit that the certification judge sufficiently considered access to justice and that he conducted a careful comparative analysis of the relative advantage of a class action over individual actions from the perspective of both judicial economy and access to justice.

[33] In the Decision, the certification judge correctly set out the principles applicable to the preferability analysis, namely, that the preferability analysis must be conducted through the lens of judicial economy, behaviour modification, and access to justice. He further recognized that access to justice has both procedural and substantive aspects.

[34] The certification judge correctly and succinctly summarized the applicable principles, at para. 96, as follows:

To satisfy the preferable procedure criterion, the proposed representative plaintiff must show some basis in fact that the proposed class action would: (a) be a fair, efficient and manageable method of advancing the claim; (b) be preferable to any other reasonably available means of resolving the class members’ claims; and (c) facilitate the three principal goals of class proceedings; namely: judicial economy, behaviour modification, and access to justice.

[35] The certification judge compared the alternatives to a class proceeding from the perspective of access to justice. He correctly noted that it was too late to bring an administrative proceeding under the ESA. The certification judge concluded that from the standpoint of access to justice, individual civil actions were preferable to a class proceeding because the putative class members would only be delayed by a common issues trial.

Access to Justice

[36] In Bayens v. Kinross Gold Corporation, 2014 ONCA 901, 327 OAC 156, at para. 105, the Court of Appeal stated that the preferability analysis is conducted under the rubric of the specific questions identified by the Supreme Court in Fischer. In that case, the Court of Appeal held that the motion judge’s preferability analysis was owed no deference on appeal because it did not conform with the analytical approach mandated by Fischer (which was released after the motion judge’s decision). The Court further stated, at para. 105, that “the substantive and procedural aspects of access to justice must be assessed in determining whether a class action is the preferable procedure. By reason of [Fischer], that assessment is conducted under the rubric of a series of specific questions identified by the Supreme Court.” See also: Excalibur Special Opportunities LP v. Schwartz Levitsky Feldman LLP, 2016 ONCA 916,406 D.L.R. (4th) 201.

[37] In Berg v. Canadian Hockey League, 2019 ONSC 2106 (Div. Ct.), 2019 CarswellOnt 4916, this court interpreted Bayens v. Kinross as standing for the proposition that the preferability inquiry “must be conducted by addressing the five questions set out in [Fischer].” The motion judge’s failure to address the questions set out in Fischer was found to be an error in principle.

[38] In this case, the certification judge did not expressly set out or answer the five questions identified in Fischer. While the certification judge’s comparative analysis addressed certain of the issues to which the five questions are directed, he failed to turn his mind to the following: (i) the barriers to access to justice, (ii) the potential for a class proceeding to address those barriers; and (iii) the extent to which the alternatives would address those barriers. Given the case law referenced above, I find that the certification judge’s failure to address these questions in the preferability analysis was an error in principle.

[39] Had the certification judge expressly considered the barriers to access to justice present in this case, the economic and psychological barriers, and the potential for a class proceeding to address those barriers would have become evident. In this case, the individual claims are relatively small, some as low as a few hundred dollars, which would be a barrier to proceeding with individual actions. The cost of litigating individual actions would be disproportionate to the amount claimed, such that many class members would not bring a claim. This is especially true given that the Respondents are likely to raise a limitations defence in almost every case. Moreover, class members might have difficulty finding counsel who would be willing to take their individual cases, given the low amount of recovery. See Navartnarajah v. FSB Group Ltd., 2021 ONSC 5418, 2021 CarswellOnt 11479, at para. 25; Azar v. Strada Crush Limited., 2018 ONSC 4763, 2018 CarswellOnt 13722A class proceeding would relieve individual class members of the need to incur out-of-pocket expenses to hire a lawyer, which would in many cases be prohibitive, to pursue their claims.

[40] In addition, the fear of reprisal would operate as a barrier to access to justice because the class consists not solely of former employees of Medcan, but also includes current employees. Those employees would be less willing to pursue individual actions against Medcan for fear of a negative impact on their employment circumstances: Navartnarajah, at para. 24; Walmsley v. 2016169 Ontario Inc., 2020 ONSC 1416, 2020 CarswellOnt 3196, at para. 38. By contrast, a class proceeding would provide anonymity, and security in numbers: Fulawka v. Bank of Nova Scotia, 2012 ONCA 443, [2012] O.J. No. 2885, at paras. 167-71; Rosen v. BMO Nesbitt Burns Inc. 2013 ONSC 2144, 9 C.C.E.L. (4th) 315. Even if class members did not have a fear of reprisal, many might not be aware of their ability to pursue an individual claim. Because of the notice requirement, a class proceeding would ensure that class members become aware of their ability to make a claim.

[41] Because the certification judge failed to consider the barriers to access to justice, his analysis of the ability of a class proceeding to address those barriers, as compared to individual actions, was incomplete. Had he considered the ability of individual actions to address the barriers to access to justice he would have found that individual actions could not address those barriers. The access to justice barriers that could be addressed by means of a class action would be left in place. See LBP Holdings v. Hycroft, 2020 ONSC 59, 2020 CarswellOnt 36.

[42] The certification judge found that a class proceeding was not preferable to individual actions because “while enough will be accomplished in the immediate case at the common issues trial to satisfy the low bar of the common issues criterion, that accomplishment will be infinitesimal compared to what the Class Member will need to establish at his or her inevitable individual issues trial…[.]” The certification judge did not explain how he arrived at this conclusion, particularly since the timelines for the progression of claims in Small Claims Court or even in Superior Court may extend to a few years before a matter gets to trial. As well, there was no consideration of the implications of several judges determining the claims differently, resulting in the risk of inconsistent outcomes.

[43] In addition, this was not the comparative analysis that the preferability analysis requires. While the certification judge considered the extent to which a common issues trial would impact individual actions, he failed to take into consideration that the psychological and economic barriers to access to justice would mean that few class members would actually bring individual actions. Viewing the preferability analysis through the lens of access to justice would weigh in favour of finding that a class action was the preferable procedure.

[44] Finally, the Appellants submit that the certification judge’s finding that very little would be achieved at a common issues trial is based on the mistaken assumption that the Respondents have admitted liability. The Appellants maintain that the Respondents have made no such admission, and that, as a result, liability would have to be demonstrated in every individual action, which would pose a significant barrier to access to justice. A class action would be preferable because the issue of liability would not have to be relitigated repeatedly.

[45] Accordingly, I find that the certification judge erred in principle in failing to conduct the preferability analysis under the rubric specified in Fischer and, more specifically, in failing to consider the barriers to access to justice and the potential of a class proceeding, as compared to other available procedures, to address those barriers.

Behaviour Modification

[46] The Respondents rely on this court’s decision in Dennis v. Ontario Lottery and Gaming Corporation, 2011 ONSC 7024, 344 D.L.R. (4th) 65at para. 71, aff’d 2013 ONCA 501, 365 D.L.R. (4th) 145, to argue that the certification judge had the discretion to conclude that behaviour modification is “not a relevant consideration” to the facts at hand and that his choice not to analyze the facts from the perspective of behaviour modification is owed deference on appeal.

[47] This is a misinterpretation of this court’s decision in Dennis. In that case, the certification judge found that behaviour modification did not weigh in favour of certification because the Ontario Lottery and Gaming Corporation was subject to intense scrutiny and had taken steps to improve the self-exclusion program before the litigation: Dennis v. Ontario Lottery and Gaming Corporation, 2010 ONSC 1332, 318 D.L.R. (4th) 110, at para. 240. The motion judge thus expressly considered the goal of behaviour modification. This court’s reference to the motion judge concluding that “behaviour modification was not a relevant consideration” meant only that behaviour modification was not a factor weighing in favour of certification in that case. It did not suggest that a certification judge has discretion to decline to take behaviour modification into consideration.

[48] The Respondents’ submission is contrary to the Supreme Court’s decision in Fischer, which makes clear that a court must conduct the preferability inquiry through the lens of the three principal goals of class actions: judicial economy, access to justice and behaviour modification. While a court may find that the goal of behaviour modification would not be achieved by a class proceeding, it cannot simply choose not to consider behaviour modification.

[49] In the Decision, the certification judge did not address the extent to which a class proceeding would or would not serve the goal of behaviour modification. In my view, the failure to conduct the preferability analysis in a manner consistent with the approach mandated by the Supreme Court in Fischer is an error in principle.

[50] The Respondents dispute that a class action could achieve anything from a behaviour modification perspective because, once Medcan became aware of the vacation and holiday pay issue, it acted as a responsible corporate actor and employer by compensating current and former employees for the preceding two years.

[51] However, as the Appellants highlight, the payments to class members were limited to the preceding two years, despite the fact that the error potentially dates back to 2005 and continued over a lengthy period of time.

[52] Moreover, as the Court of Appeal found in Pearson, behaviour modification must not be viewed too narrowly. The goal of behaviour modification has been described as “modifying the defendants’ behaviour so as to inhibit misconduct by those who might ignore their obligations to the public.” Pearson, at para. 87, citing Abdool v. Anaheim Management Ltd., (1995) 1995 5597 (ON SCDC), 21 O.R.(3d) 453 (Div. Ct.), 121 D.L.R. (4th) 496, at p. 514. Behaviour modification aims not only at the defendants in a particular case but at similar defendants who might avoid the consequences of their conduct because the impact is diverse and often has minimal impact on one person: Pearson, at para. 88.

[53] In employment cases such as this one, class proceedings would serve the goal of behaviour modification because they would signal to employers that they are expected to be informed of and to comply with their statutory obligations regarding employee compensation. Individual claims under the ESA and individual actions would be much less effective in achieving this goal because the amounts recovered would be relatively small. Moreover, individual claims would never result in the employer being held entirely accountable for the “full costs of their conduct.” Western Canadian Shopping Centres Inc. v. Dutton, 2001 SCC 46, [2001] 2 S.C.R. 534, at para. 29. In a case such as this one, absent the possibility of a class action, there may be little incentive for employers to comply, especially where the non-compliance may persist for years, and their liability may be cut-off by a statutory limitation period.

[54] It is worth noting that class proceedings have repeatedly been found to be the preferable procedure for employment and ESA-related cases: Walmsley; Fulawka; Navartnarajah; Rosen; Azar; Heller v. Uber Technologies Inc., 2021 ONSC 5518, 73 C.C.E.L. (4th) 45; Montaque v. Handa Travel Student Trip Ltd., 2020 ONSC 6459, 67 C.C.E.L. (4th) 311.

[55] In conducting the preferability analysis, the certification judge failed to consider the goals of behaviour modification and failed to fully consider the goal of access to justice. Those failures constitute an error in principle and do not attract deference on appeal.

[56] Based on the foregoing, the appeal must be granted.

The Remaining Issues

[57] Based on my conclusion that the certification judge erred in principle in conducting the preferability analysis, it is unnecessary to consider whether the certification judge’s finding that very few class members would have received deficient payments resulted in him applying a high standard to the Appellants’ claims than the “some basis in fact” standard.

[58] Similarly, it is not necessary to consider the Appellants’ remaining argument that the certification judge erred in holding that a determination of the common issues would not significantly advance the claim.

[59] On this appeal, the Appellants propose to further particularize two “sub-issues” for the purposes of clarity, that they submit are implied in the first two common issues. The proposed sub-issues are as follows:

1.e Whether vacation pay and/or statutory holiday pay is held in trust for the Class Members as claimed at paragraph 19 of the Statement of Claim and the effect on the start of a limitation period, if any; and

1.f Whether the two-year limitation period runs from 7 days after employment ends as claimed at paragraph 27(b) of the Statement of Claim.

[60] The Respondents submit that the Appellants’ trust arguments were fully canvassed at the certification hearing. At paragraph 61 of the Decision, the certification judge found that while the Respondents have a strong defence, it was not plain and obvious that the trust claim would fail.

[61] I would decline to certify the sub-issues on appeal. The certification judge heard the parties’ full arguments on the motion, including in relation to the breach of trust claim, and certified the common issues as he deemed appropriate. If further clarification of the common issues is required, the matter is best addressed before the certification judge.

Conclusion

[62] Accordingly, the appeal is allowed. The order of the certification judge dismissing the plaintiffs’ motion for certification is set aside. Given the certification judge’s conclusions on the requirements under s. 5 of the CPA and my findings above, the action should be certified as a class proceeding on the common issues found by the certification judge, and as listed in Schedule ‘A’ to these reasons.

[63] In the Decision, the certification judge indicated that he was not inclined to make an order as to costs of the motion but that he would receive submissions if the parties were unable to agree. At the hearing, both parties submitted that because costs of the motion had not been decided, in the event that the appeal was successful, it would be appropriate to have the issue of costs of the motion and appeal determined by the certification judge.

[64] As a result, the matter is referred back to the certification judge for a determination as to costs on the certification motion and the appeal.

“Nishikawa J.”

I agree “Tzimas J.”

I agree “Davies J.”

Released: September 19, 2022

Schedule ‘A’ Common Issues

(1) What were the terms of the class members’ employment contracts?

(2) Did the Respondents breach any of those terms, and if so, how?

(3) Did the Respondents have a duty to accurately record hours worked by class members in order to compensate them appropriately, and if so, did they breach that duty?

(4) Did the Respondents have a duty to maintain a reasonable system to ensure the duties set out in common issue #2 were satisfied for all class member, and if so, did they breach that duty?

CITATION: Curtis v. Medcan Health Management Inc., 2022 ONSC 5176

DIVISIONAL COURT FILE NO.: 564/21

DATE: 20220919

Nicole Curtis, Amr Galal and Katrina Buhlman

Plaintiffs/Appellants

– and –

Medcan Health Management Inc., Andrew Carragher, Shaun C. Francis, Edwin F. Hawken, Urban Joseph, Beau Laskey, Thomas P. Reeves, Owen Rogers, and Craig Shepherd

Defendants/Respondents

REASONS FOR DECISION

Released: September 19, 2022

[^1]: This court has jurisdiction over this appeal because the proceeding was commenced before the amendments to s. 30(1) of the CPA, which now permit a party to appeal a certification decision to the Court of Appeal.