Superior Court of Justice – Ontario

Citation: 2017 ONSC 6014 Court File No.: 148/10CP Date: 20171006 Corrigenda: 20171121

Between:

Freeman Bartholomew Plaintiff

– and –

Coco Paving Inc. and Lafarge Canada Inc. Defendants

Counsel: Ian Wilson, for the Plaintiff John Field, Counsel for Lafarge Canada Inc., Leslie A. Brown, Counsel for Coco Paving Inc.

Heard: May 15 & 16, 2017

REVISED REASONS FOR DECISION The text of the original reasons have been corrected with the text of the corrigendum (released today’s date)

EDWARDS J.:

Overview

[1] The Plaintiff seeks to certify as a class action on behalf of various employees of the Defendants in connection with a claim for payment for lost overtime. While the Defendants resist certification for various reasons, primarily the Defendants argue that certification should be refused because the Plaintiff has failed to put any evidence before the Court of any other employees of the Defendants who were employed in the same circumstances as the Plaintiff, and treated in the same way as the Plaintiff with respect to paying overtime.

The Facts

[2] Lafarge Canada Inc. (“LCI”) and Coco Paving Inc. (“Coco”) are two separate and distinct corporate entities.

[3] LCI is part of the Lafarge group of companies. As a result of an asset purchase agreement entered into between LCI and Coco on June 15, 2009 Coco purchased, amongst other things, the asphalt business of LCI and other Lafarge related corporate entities.

[4] In the one year time period between July 2008 and June 2009, LCI conducted asphalt and paving operations in Ontario through various subsidiaries of Lafarge. In total, LCI and its related companies operated 31 asphalt plants in Ontario. Of particular significance is the fact that the Plaintiff was never employed by LCI. He was employed by Lafarge Paving & Construction Limited (LPCL) between July 2008 and June 2009. LPCL and LCI are two separate and distinct corporate entities.

[5] The terms of the asset purchase agreement between LCI and Coco resulted in the purchase of the asphalt plants operated by either LCI, LPCL or LPCEL. Pursuant to the agreement, Coco agreed to offer salaried and hourly non-unionized employees employment on substantially the same terms and conditions that were in effect at the time of the agreement. Coco, as well, agreed to be bound by any collective agreements with respect to unionized employees.

[6] The Plaintiff was a construction employee who worked out of the construction office in Peterborough until December 2009. The Plaintiff’s employment was terminated in December 2009. The Peterborough construction office was located in an area which was separate from the asphalt plant. The employees at the construction office included the Plaintiff, an estimator, an accountant and the construction manager. The Plaintiff reported directly to the construction manager until the termination of his employment.

[7] The employees working at the Peterborough asphalt plant included a plant foreman and a loader/operator. The performance of the Plaintiff’s employment responsibilities were for the most part carried out in the construction office, not at the asphalt plant. His employment responsibilities were largely administrative and clerical in support of the construction operations, as directed by the construction manager.

[8] The cross-examination of the Plaintiff on his affidavit makes quite clear that the Plaintiff was never a plant foreman at any asphalt plants in Ontario, nor was he ever employed with any regular duties as a loader/operator, labourer or batcher, at any asphalt plant in Ontario. The evidence is also clear that the Plaintiff was never employed at any cement plants, cement terminal, or other related facility controlled by either of the Defendants.

[9] In the Plaintiff’s factum, something as basic as the nature of his employment responsibilities are in dispute. He is described in the Plaintiff’s factum as someone who was employed at the Peterborough asphalt plant site for 22 years. Perhaps of greater significance is the description of his duties, which in his factum reflect that he had duties which included operating asphalt scales and mixers, performing dispatch and clerical duties, and performing some maintenance work.

[10] In the Defendants’ responding factum these duties are disputed. By reference to the transcript of the Plaintiff’s cross-examination, the Plaintiff in fact carried out all of his regular duties in the construction office at the Peterborough plant, not the asphalt plant. The Plaintiff’s duties consisted of administrative and clerical tasks in support of construction operations, as directed by the construction manager. The Plaintiff also carried out further constructions duties including dispatching trucks, answering telephones and other clerical and administrative duties. The Plaintiff, however, did not perform duties similar to those performed by the plant foreman and the loader/operator working at the Peterborough asphalt plant. It is significant that the Plaintiff chose not to cross-examine on the Defendants’ affidavit evidence.

[11] Based on the evidence from the cross-examination of the Plaintiff, as well as evidence from the various witnesses whose evidence was put before the Court by the Defendants, I find as a fact that the Plaintiff’s only job function which was associated with the asphalt plant was to issue the tickets to asphalt plant customers whose trucks went over the scales located at the construction office. This evidence would lead me to conclude that only a very small percentage of the Plaintiff’s duties fell within this category.

[12] The Plaintiff was never employed by either of the Defendants as a plant foreman at any of the Defendants’ asphalt plants located in Ontario. He was not employed with any regular duties as a loader/operator/labourer or batcher at any of the Defendants asphalt plants in Ontario.

[13] The Plaintiff was an hourly paid employee who argues that he worked at a permanent asphalt plant. The evidence discussed above, in my view, makes clear such was not the case.

[14] When the Plaintiff worked in excess of 44 hours per week, he was not paid overtime unless the overtime hours exceeded 55 hours.

Plaintiff’s Position

[15] In the Plaintiff’s Further Amended Statement of Claim issued on October 13, 2016, the plaintiff defines a class member as one who:

i. was employed by a Defendant subsequent to July 8, 2008;

ii. was paid hourly and not by salary;

iii. was not paid at the overtime rate for some number of hours worked in his or her position in excess of a 44 hour threshold in any particular week of employment;

iv. performed non-managerial and non-supervisory tasks on a regular basis in his or her position;

v. a Defendant has confirmed worked in a position that is non-managerial and non-supervisory in such week by repeatedly and consistently paying the overtime rate of one and a half times the regular hourly rate of such a position at some weekly threshold, as indicated in the weekly payroll records and records of employment issued;

vi. was employed at a material preparation facility such as an asphalt plant or aggregate site, or an office site, that is not located at any roadway or other construction being built by the Defendant, in respect of any such week; and

vii. was not then a member of a union party to a collective agreement with a Defendant.

[16] The Plaintiff argues that the Defendants’ justification for not paying overtime, until in excess of 55 hours had been worked, was because the Defendants say that the class are engaged in “road building” and are, thus, exempt from the requirement to pay overtime hours worked between 45 and 55 hours. The Plaintiff argues that the Defendants applied this policy uniformly to all workers at their permanent facilities.

[17] The Plaintiff argues that he was not engaged in road building and that he did not work on the Defendants’ road crews at the road building site. Rather, he worked in a permanent manufacturing facility. As such, it is argued that the policy basis supporting the extension of time worked before overtime applies to road crew workers does not transpose to the work performed by the Plaintiff and other workers at the Defendants’ permanent facilities.

[18] Fundamentally, the Plaintiff argues that the Defendants applied their policy of not paying overtime until workers had logged 55 hours per week. It is suggested that this policy was legally wrong because the Plaintiff and the proposed class are not road crew. As such, from a class action perspective it is argued that the claim raises issues common to the class; there was no alternative preferable procedure for resolution of the common issue; and that the Plaintiff can fairly and adequately represent the interests of the class.

[19] Dealing with the question of the proposed class, the Plaintiff in his affidavit sworn October 20, 2011 states at paragraphs 12 and 13:

I am relatively certain that had members of the proposed Class employed at any of the defendants’ several dozen asphalt plants been paid overtime after 44 hours then all of the others including myself would have become aware of it and required the same treatment. For that reason I believe that every member of the proposed class in Ontario is subject to the defendants’ policy; however, it is true that I simply do not know what members at other plants were paid – only the defendants and the individual members of the proposed Class know this.

As there are at least 38 asphalt plants operated by the defendants since July 7, 2008, and each plant, depending on its size and output, required and employed two or three workers to perform the duties commonly performed by members of the proposed Class, it is my belief that there are at least 100 members of the proposed Class employed or formerly employed by the defendants in the period relevant to this action who were not paid at the overtime rate for hours worked between 45 and 55 in one week.

[20] The Plaintiff goes on in his affidavit at paragraph 63 to state:

Obviously I do not know the names and addresses of more than a few of the approximately 100 members of the proposed Class, who as indicated work in almost 40 different asphalt plants spread throughout the province. I also do not have the particular information about the weekly hours members of the proposed Class that have worked for the defendants since July 8, 2008 and the amount of overtime wages they are owed.

[21] A particularly telling fact, or non-fact from the Plaintiff’s affidavit, is the absence of any evidence of any other non-union employee of either of the Defendants in the same circumstances as the Plaintiff.

Defendant’s Position

[22] The Defendants assert that the Plaintiff has failed to meet his evidentiary burden with respect to sections 5(1)(b)-(e) of the Class Proceedings Act, 1992 S.O. 1992 c. 6 (“the CPA”). In that regard, the Defendants argue that the Plaintiff has put no evidence before this Court of any other employee of the Defendants who was employed in the same circumstances as the Plaintiff, and treated in the same way as the Plaintiff with respect to the payment of overtime.

[23] The Defendants argue that the Plaintiff has failed to establish any basis in fact of an identifiable class and, as such, fails to meet the test provided for by section 5(1)(b) of the CPA. It is also argued that the Plaintiff has failed to establish any basis in fact that there are common issues for the Plaintiff’s proposed class, and as such fails to meet the test mandated by section 5(1)(c) of the CPA.

[24] It is also argued by the Defendants that the Plaintiff has failed to establish any basis in fact that the proposed class action is a “preferable” procedure for the resolution of the proposed common issues and, as such, fails to meet the test under section 5(1)(d) of the CPA.

[25] The Defendants further argue that the Plaintiff has failed to establish any basis in fact that he can fairly and adequately represent the interests of the proposed class (assuming that such a proposed class exists, which is denied by the Defendants). It is also argued that the Plaintiff has failed to establish any basis in fact that he has a litigation plan that provides for a workable method for advancing the proposed class proceeding on behalf of the class, and as such fails to meet the test under section 5(1)(e) of the CPA.

Analysis

[26] Before a Plaintiff can succeed on a certification motion, the Plaintiff is required to satisfy the five criteria set forth in section 5(1) of the CPA, specifically that:

(a) the pleadings disclose 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; [Emphasis added]

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

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

(e) there is a representative plaintiff who would:

i. 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.

[27] The Supreme Court of Canada in Hollick v. Toronto (City), 2001 SCC 68 at page 175, has made clear that the class representative must show some basis in fact for each of the certification requirements set out in section 5 of the Act, other than the requirement that the pleadings disclose a cause of action. The requirement with respect to disclosing a cause of action is subject to the rule that a pleading should not be struck for failure to disclose a cause of action unless it is “plain and obvious” that no claim exists.

[28] One of the fundamental basic principles in determining whether or not a Plaintiff can succeed on a certification motion is the requirement that the Plaintiff produce evidence that there is an identifiable class of two or more persons who would be represented by the Plaintiff. In Sun-Rype Products Ltd. v. Archer Daniels Midland Company, 2013 SCC 58 at para. 61, Rothstein J. stated:

That is not the situation in this case. Here, there is no basis in fact to demonstrate that the information necessary to determine class membership is possessed by any of the putative class members. The appellants have an obligation at the certification stage to introduce evidence to establish some basis in fact that at least two class members can be identified. Here, they have not met even this relatively low evidentiary standard.

[29] Mr. Wilson on behalf of the Plaintiff asserts that Paul King, presently employed by Coco, fits within the definition of the proposed class. Mr. King deposes in his affidavit, sworn on July 9, 2012, that he is a manager and has overall responsibility for operating the Ajax plant owned by Coco. Perhaps of greater significance is the supplementary affidavit of Mr. Bartholomew, sworn on October 12, 2012, where at paragraphs 26 and 27 he accepts the fact that Mr. King does not fall within his proposed definition. Similar comments can be made with respect to other individuals whom Mr. Bartholomew accepts do not fall within the definition.

[30] The evidentiary onus of providing evidence of two or more persons having a common complaint was reinforced by Nordheimer J. (as he then was) in Bellaire v. Independent Order of Foresters, 2004 CanLII 95288 (ON SC), [2004] O.J. No. 2242, where at para. 33 he stated:

I respectfully agree with the observations made in these cases. In my view, before the extensive process of a class proceeding is engaged, it ought to be clear to the Court that there is a real and subsisting group of persons who are desirous of having their common complaint (assuming there to be a common complaint) determined through that process. The scale and complexity of the class action process ought not to be invoked at the behest, and for the benefit, of a single complainant.

[31] The Plaintiff 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 Plaintiff 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 set forth in the amended statement of claim quoted in paragraph 15 above.

[32] In essence, the highest that the Plaintiff’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 of requirements of the CPA, and as Winkler J. (as he then was) stated in Lau v. Bayview Landmark Inc., [1999] O.J. No. 4060:

…a class proceeding cannot be created by simply shrouding an individual action with a proposed class. That is to say, 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.

[33] The obligation on a Plaintiff seeking certification is to establish the existence of a real and subsisting group of persons who seek to have their common complaint determined through a class action. This recently came up for consideration in Keatley Surveying Ltd. v. Teranet Inc. 2015 ONCA 248. This decision of the Court of Appeal was not addressed in argument by counsel, but in my view provides further assistance to this Court in the determination of whether or not the Plaintiff has met his evidentiary onus. Sharpe J.A., at para. 70, stated:

It is, of course, incumbent on the proposed representative plaintiff to show that there are two or more individuals who have the same claim as the representative plaintiff to advance. Ordinarily, the existence of more than one claim will be apparent from the very nature of the claim being advanced. This case falls into that category. If the representative plaintiff has claim for breach of copyright, it is apparent that other surveyors will have a like claim.

At para. 71:

Where the existence of multiple claims is not apparent, some evidence that multiple claims exist may be required…

At para. 72:

I agree with the Divisional Court that a distinction must be drawn between the existence of multiple claims and the subjective wishes or intentions of individual class members to assert a claim. It is in the very nature of class actions that many, if not most, individual class members lack the motivation or the will to commence proceedings. The access to justice and behavior modification goals of class proceedings will often depend upon a representative plaintiff taking the initiative in circumstances where other members of the class would be ignorant of their loss or acquiesce because of disinterest, lack of resources or fear of an adverse costs award. If multiple claims exist, the representative plaintiff does not have to conduct a referendum to determine how many class members want to sue.

[34] In essence, the Court of Appeal in Keatley, supra, draws a distinction between those cases where the existence of more than one claim will be apparent from the very nature of the claim being advanced, versus those claims where the existence of multiple claims is not apparent where evidence of such multiple claims is required as set forth in Hollick, supra, Lau, supra, and Sun-Rype Products Ltd., supra. In my view, the case before me falls within the latter category. It simply is not obvious from the evidentiary record before me that the existence of more than one claim is apparent.

[35] The Plaintiff has the onus of putting before the Court evidence other than his own of at least one other individual who falls within the definition of the class. The Plaintiff asserts that there are probably as many as 100 other individuals whose names and addresses he is not aware of. It is pure speculation on his part that there exists more than one other individual, other than himself, who has a claim similar to or identical to the type of claim that he asserts in the proposed class action. The Plaintiff fails, in my view, to meet the relatively simply test set forth in section 5(1)(b) of the CPA. In essence, the Plaintiff’s claim is merely a claim representing himself and no one else.

[36] The Plaintiff makes his claim against both LCI and Coco. The evidence is abundantly clear that at no time was the Plaintiff ever employed by LCI. His employment was with LPCL. Mr. Wilson, in his argument, asserts that LPCL is part of the larger Lafarge group and, as such, has a contractual cause of action. LCI and LPCL are two separate and distinct corporate entities. For reasons best known to the Plaintiff and/or his counsel he chose not to sue LPCL. No motion was brought by the Plaintiff to amend his statement of claim to add LPCL as a named Defendant. The Plaintiff has no cause of action against LCI. The Plaintiff never pleaded in his statement of claim that LCI was a common employer. The Plaintiff fails to meet the basic requirement of section 5(1)(a) of the CPA as it relates to LCI.

[37] While my finding with respect to the failure on the Plaintiff’s part to meet the requirement of section 5(1)(b) of the CPA is dispositive of the Plaintiff’s motion, I nonetheless deal briefly with the further requirements of section 5; specifically, whether the claim raises common issues and whether the proposed class proceeding is the preferable procedure.

[38] Dealing first of all with the common issues, it is worth noting that the common issue - as framed in the Plaintiff’s notice of motion, is quite different from the common issue as framed at page 61 of his factum. The common issue set forth at paragraph 3 of the notice of motion provides:

The claim in this action is that the defendants failed to pay wages to class members at the overtime rate at a threshold in accordance with the Employment Standards Act (the “ESA”) for hours worked in one week in excess of 44 but less than 55 pursuant to the longstanding misapplication of a road building exemption in a related regulation, which is a common issues to the defendants’ hourly paid employees working at asphalt or aggregate plants or other manufacturing or preparation facilities or at office locations throughout Ontario but not at the site of the roads being built by the defendants.

[39] The common issue set forth in the Plaintiff’s factum is as follows:

a) what are the terms of the class’s contracts of employment with respect to the entitlement to receipt of overtime pay? Particularly, did the class members’ contracts of employment include an express or implied term that they would be compensated for overtime at the rate of 1.5 times their normal hourly wage for all hours of work performed in excess of 44 hours per week?

b) do the defendants owe the class a duty of good faith to ensure that they are compensated at the rate of 1.5 times their normal hourly wage for all hours of work performed in excess of 44 hours per week?

c) did the defendants breach that duty of good faith by instituting a policy whereby the class would not be paid any overtime wages until they had worked in excess of 55 hours per week?

d) have the defendants breached their contracts of employment with the class by failing or refusing to pay to the class wages at the rate of 1.5 times their normal hourly wage for all hours of work performed in excess of 44 hours per week?

e) if so, can the amount of the damages suffered by the class be determined from the defendants’ employment records?

f) did the defendants breach their contracts with the class or breach their duty of good faith in the performance of those contracts of employment by systemically classifying the class as “construction employees” to limit their entitlement to the payment of overtime to hours worked in excess of 55 hours per week?

g) have the defendants been unjustly enriched as a result of their failure to pay overtime to the class at the rate of 1.5 times their normal hourly wage for all hours of work performed in excess of 44 hours per week?

h) if so, can the amount of the enrichment be determined in whole or in part from the employment records maintained by the defendants?

i) if so, what is the amount by which the defendants have been unjustly enriched?

j) should a declaration be made that:

i. the class are entitled to payment of overtime wages at the rate of 1.5 times their normal hourly wage for all hours of work performed in excess of 44 hours per week?

ii. that the class are not employees engaged at the site of road building in relation to streets, highways or parking lots?

[40] The common issues framed in the Plaintiff’s factum will, in my view, require an analysis of each individual employee’s terms of employment. There will have to be an individual analysis of what each individual employee did. There will have to be an analysis as to whether or not an employee is exempted because they were a manager or supervisor. There will have to be an analysis, albeit a relatively simple analysis, as to whether or not an employee was unionized. If an employee is unionized, it is quite clear that such an employee would not fall within the class definition. The analysis which the Court would have to undertake for each potential employee within the class definition and common issue, as framed above, would require an individual analysis as opposed to a collective analysis.

[41] I also note that in relation to the declaratory relief set forth in subparagraph ”g”, page 62 of the Plaintiff’s factum, that I had already ruled in an Endorsement released on June 10, 2016 that such declaratory relief was improper. In my Endorsement, I stated at para. 6:

…There are, however, a number of amendments that are proposed that not only were dealt with in the motion and disallowed, but perhaps more importantly purport to plead new claims. In that regard, in paragraph 1 of the new claim the Plaintiff seeks both declaratory relief and injunctive relief, neither of which were ever sought in the motion before this Court when leave was sought to originally amend the statement of claim…

The declaratory relief set forth above, in my view, is improper based on the earlier Ruling of this Court of June 10, 2016.

[42] As it relates to the so-called common issue, as framed by the Plaintiff in his factum, the words of the Court of Appeal in McCracken v. Canadian National Railway Company, 2012 ONSC 445 at para 128, are in my view dispositive of the resolution of the common issue as against the Plaintiff:

The plaintiff's litigation strategy seizes on the superficial commonality that all class members work for CN and all share the common label of being a FLS. However, this common label conveys a false impression of commonality given the evidence on the motion of the different job responsibilities and functions of class members, who hold many different job titles and who work in a variety of workplaces with different reporting structures and different sizes of workforce. There is no basis in fact to support a finding that the essential misclassification determination could be made without resorting to the evidence of individual class members. Simply put, the plaintiff has not shown that any significant element of his claim is capable of common proof.

[43] The next question that I address is whether a class action is the preferable procedure. In my view, the short answer to this question can be found in my determination with respect to the common issue determination. If there are no common issues, then a class action cannot and should not be the preferable procedure.

[44] The presence of individual issues has been determined not to be fatal to certification. Where, however, there are so many individual issues - that I have referenced in paragraph 40 above, which would likely require individual trials for virtually each class member, in such a situation certification should never be granted. Comments to this effect can be found in Mouhteros v. DeVry Canada Inc., 1998 CanLII 14686 (ON SC), 1998 41 OR (3d) 63, where Winkler J. (as he then was) stated:

The presence of individual issues will not be fatal to certification. Indeed, virtually every class action contains individual issues to some extent. In the instant case, however, what common issues there may be are completely subsumed by the plethora of individual issues, which would necessitate individual trials for virtually each class member. Each student's experience is idiosyncratic, and liability would be subject to numerous variables for each class member. Such an (sic) class action would be completely unmanageable.

[45] Similar comments can be found in the decision of C. Horkins J. in Kafka v. Allstate Insurance Company of Canada, 2011 ONSC 2305 at paras. 158 through 163, and the decision of the Divisional Court upholding the decision of Horkins J. at Kafka v. Allstate Insurance Company of Canada, 2012 ONSC 1035. The circumstances of the proposed class, as I have already indicated, will require a detailed analysis with respect to the job responsibilities of each employee; where they are employed; whether their responsibilities were managerial or non-managerial; and where the employee was employed.

[46] In determining whether or not the proposed class action is a preferable procedure, the Court should also consider whether or not there are other alternative procedures open to an employee like the Plaintiff, or possibly other employees situated like him. In this case, I am not satisfied that the class action is a preferable procedure given a number of factors. On all accounts the claim by the Plaintiff – while perhaps not insignificant to him, is of an amount that is within the jurisdiction of the Small Claims Court. The determination of the Plaintiff’s entitlement to overtime is something that in my view would be amenable to the relatively timely and much less costly process available through the Small Claims Court.

[47] The Plaintiff also would have open to him the opportunity, if he chose not to bring his action in the Small Claims Court to proceed under the Simplified Rules procedure, which is much less complicated and provides more timely access to justice than the class action in this case. This is particularly evident considering the Statement of Claim in this action was issued in 2010 and has only now reached the certification stage.

[48] Finally, I am not satisfied that the proposed class action is the preferable means to resolve the issues raised by the Plaintiff. The Employment Standards Act (ESA) has a comprehensive system, pursuant to which an employee, who without the necessity of employing legal counsel, can initiate and obtain compensation for unpaid wages, including overtime wages. It is also worth noting that section 103 of the ESA provides that if an employment standards officer finds that an employer owes wages to an employee, the employment standards officer may arrange with the employer to have the employer pay the wages directly to the employee, and furthermore that such an order can be issued with respect to wages owing to more than one employee (see section 103(3) of the ESA).

[49] The Plaintiff, in his factum, argues that while a member of the proposed class could make a complaint to the Ministry of Labour about the Defendants’ alleged misapplication of the road building exemption, it is argued that such a complaint would only permit recovery of lost overtime for a six month period prior to the making of such a complaint and that there is a limit of $10,000 on any award. In that regard, the Plaintiff cites section 111 of the ESA and section 103(4) of the ESA. Such assertions are incorrect. Section 111(1) of the ESA now provides for what, in essence, is a two year limitation period; i.e. the same limitation period that applies in this case. Section 111(1) of the ESA provides:

If an employee files a complaint alleging a contravention of this Act or the regulations, the employment standards officer investigating the complaint may not issue an order for wages that became due to the employee under the provision that was the subject of the complaint or any other provision of this Act or the regulations if the wages became due more than two years before the complaint was filed.

[50] The Plaintiff’s reliance on section 103(4) of the ESA is again erroneous. Section 103(4) of the ESA was repealed in 2014.

[51] In my view, the reasons relied upon by the Plaintiff not to proceed with a complaint under the ESA holds no water. The ESA, in fact, does provide a system by which an employee like the Plaintiff could have asserted his claim for unpaid overtime wages.

[52] The final area in which the Plaintiff fails in meeting the requirements of the CPA is his failure to put forward a workable litigation plan. I agree with the comments set forth in the Defendants’ factum to the effect that the litigation plan is not a litigation plan at all, but rather a plan that in essence presumes a settlement of the matter and does not even contemplate liability or damages phases. The obligation to provide for a workable litigation plan was canvassed by the Court of Appeal in McCracken, supra, at para. 46, as follows:

Repairing a litigation plan requires the plaintiff to translate his or her analytical proposal for a class proceeding into practice by having to explain, in concrete terms, the process whereby the common issues, and any remaining individual issues, will be decided. The need for a clear explanation of how a proposed common issue would be resolved for all class members on a common basis serves as an important check in considering if the plaintiff has met the common issues and preferable procedure criteria.

[53] Similar comments can be found in the decision of Winkler J. (as he then was) in Caputo v. Imperial Tobacco Ltd., 2004 236 DLR (4th) 345, where at para. 78 Winkler J. stated:

In my view, in a proceeding of this size and complexity, a proper litigation plan should reflect a clear acknowledgement of the massive undertaking involved. Thus, the plan should contain, at a minimum, information as to the manner in which individual issues will be dealt with, details as to the knowledge, skill and experience of the class counsel involved, an analysis of the resources required to litigate the class members claims to conclusion, and some indication that the resources available are sufficiently commensurate given the size and complexity of the proposed class and the issues to be determined.

[54] There is no litigation plan advanced by the Plaintiff in the materials before this Court. I also take note of the fact that there is nothing in the record that provides any assurance to this Court that Plaintiff’s counsel has the necessary knowledge, skill and experience, in prosecuting a class action on behalf of a Plaintiff. There is no evidence that something as basic as a website for potential class members to consult is even in existence with respect to this proposed class action.

[55] The necessity for a litigation plan was canvassed by Nordheimer J. (as he then was) in Bellaire, supra. The requirements for a litigation plan are found in para. 53. A deficient litigation plan can always be rectified. No litigation plan, however, fails to meet the basic requirements of the CPA.

[56] For all of the reasons set forth above, I am not satisfied that certification of this action is appropriate. The Plaintiff’s motion seeking certification is therefore dismissed.

[57] If the parties cannot agree on the question of costs I will receive written submissions from the Defendants, to be received by November 15, 2017, limited to five pages in length. I will receive the Plaintiff’s responding submissions by no later than November 30, 2017. If the Court has not received any submissions by November 30, 2017, the Court will assume that the issue of costs has been resolved between the parties.

Justice M.L. Edwards

Released: November 21, 2017

2017 ONSC 6014

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

FREEMAN BARTHOLOMEW Plaintiff

– and –

COCO PAVING INC. AND LAFARGE CANADA INC. Defendants

REASONS FOR DECISION

Justice M.L. Edwards

Released: November 21, 2017

CORRIGENDA

1. Correction of spelling of the Defendant Lafarge (from LeFarge) in the style of cause, as well as paragraphs 2, 3, 4 and 36.