Court File and Parties

COURT FILE NO.: CV-17-581322-00CP DATE: 20180817 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

GEORGE AZAR Plaintiff – and – STRADA CRUSH LIMITED Defendant

Counsel: Henry Jurioviesky, for the Plaintiff Rahool Agarwal and Ted Brook, for the Defendant

HEARD: May 24, 2018

CERTIFICATION MOTION

E.M. Morgan J.

I. The overtime and holiday pay claims

[1] The Plaintiff moves for certification of this action under s. 5(1) of the Class Proceedings Act, 1992, SO 1992, c. 6 (“CPA”). There are 154 past and present employees of the Defendant during the class period, from year 2000 to the present, that are potential members of the class. All of them are or were engaged in recycling construction materials.

[2] The Defendant is in the business of making crushed “aggregate”, which its affiant describes as a coarse-to-medium grained particulate material that, like gravel (which is a type of aggregate), is used in construction projects. The Defendant sells the aggregate for use in, among other things, the construction of streets, highways, and parking lots.

[3] The claim arises under two provisions of the Employment Standards Act, 2000, SO 2000, c. 41 (“ESA”). Section 22(1) of the ESA requires an employer to pay its employees overtime pay of one-and-a-half times their regular rate where they work in excess of 44 hours per week. Section 24(1) of the ESA requires an employer to pay its employees their current rate of pay for all public holidays.

[4] The Defendant’s position is that it falls within an exception to both of these rules. It contends that the employees in question are construction workers engaged at the site of road building, and that under section 13 of O Reg 285/01 under the ESA they are entitled to overtime pay only where they work in excess of 55 hours per week, not 44 hours. The Defendant also submits that some of the putative class members are managers, and under section 8 (b) of O Reg 285/01 are exempted from the ESA entitlement to overtime pay.

[5] Further, the Defendant pleads that its employees fall into an exemption from public holiday pay by virtue of working in the construction industry. It submits that section 9(2) of O Reg 285/01 allows for construction employees to receive an additional 7.7% (for under 5 year employees) or 9.7% (for 5 year or more employees) on top of their wages as a substitute for vacation pay or holiday pay, and that its employees, including the representative Plaintiff, received this additional pay during the entire class period.

[6] The Plaintiff has indicated that it intends to move for summary judgment, but it has not sought that in the present motion. The issues here are limited to certification of the claim and the identification of common issues for the claim to proceed as a class action.

[7] As the Supreme Court of Canada has indicated, “[t]he certification stage does not involve an assessment of the merits of the claim and is not intended to be a pronouncement on the viability or strength of the action”: Pro-Sys Consultants Ltd. v Microsoft Corporation, 2013 SCC 57, [2013] 3 SCR 477, at para 102. That said, “a certification motion is an important screening mechanism for claims that ‘…are not appropriate for class actions’”: Arabi v Toronto-Dominion Bank, [2007] OJ No 5035, at para 18 (Div Ct). It is necessary to maintain the focus on the certification criteria under the CPA and to consider the merits as appropriate in that particular context.

II. The criteria for certification

[8] Section 5(1) of the CPA provides that the Court shall certify a class proceeding where:

(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.

[9] Each of these criteria shall be examined in turn.

a) Causes of action

[10] As outlined above, there are two statutory causes of action raised by the Plaintiff: a) breach of section 22(1) of the ESA by the Defendant for failing to pay employees overtime pay where they work for more and 44 hours per week; and b) breach of section 24(1) of the ESA by the Defendant for failing to pay employees holiday pay.

[11] It is self-evident that, “a defendant should not be subject to any claim, particularly one asserted on behalf of a whole class of plaintiffs, which does not disclose a proper cause of action”: Pearson v Inco. Ltd., [2002] OJ No 2764, at para 84 (SCJ). However, the test under section 5(1)(a) of the CPA is not a particularly onerous one. Winkler CJO pointed out in McCracken v Canadian National Railway, 2012 ONCA 445, at para 75, that identifying a cause (or causes) of action is the one certification criterion for which there is no requirement that the Plaintiff demonstrate an evidentiary foundation. The test is essentially the same as the test on a motion under Rule 21.01 of the Rules of Civil Procedure for striking out a Statement of Claim: the pleading can stand unless it is “plain and obvious” that it discloses no reasonable cause of action: Cloud v Attorney General of Canada, [2001] OJ No 4163, at para 10 (SCJ).

[12] With all of that, the Defendant does not contest the existence of the causes of action pleaded here. They are recognized claims under the ESA, and therefore reflect causes of action known to and recognized by the law. Taking the facts as pleaded to be true, there are causes of action which satisfy the section 5(1)(a) criterion for certification.

b) Identifiable class

[13] Section 5(1)(b) of the CPA calls for there being two or more persons that can be represented by the representative plaintiff as being the class of claimants against the Defendant. The class must be identified with sufficient clarity to allow for all persons that are entitled to notice, that are ultimately entitled to a remedy, and that will be bound by the Judgment if they do not opt out, to be identified up front: Western Canadian Shopping Centres Inc. v Dutton, 2001 SCC 46, [2001] 2 SCR 534, at para 38.

[14] The Plaintiff states that the proposed class is composed of all of the Defendant’s yard employees engaged in the production of aggregate from construction materials. There are presently 38 yard employees engaged in this work, and a total of 154 past and present employees that are members of the proposed class (the “Class Members”). The Plaintiff also notes that the Defendant’s general manager conceded under cross-examination that the Defendant has used the same 55-hour overtime policy for its yard employees since in or about 1996, although Plaintiff’s counsel contends that they only learned about this recently. For greater certainty, the Plaintiff has proposed commencing the class period in 2000.

[15] Plaintiff’s counsel submits that, as in other cases certified on this basis, there are certainly two or more Class Members and that all of the Defendant’s yard workers suffered in the same way from the Defendant’s systemic practice with respect to overtime pay: see Baroch v Canada Cartage, 2015 ONSC 40 (SCJ). Furthermore, counsel for the Plaintiff states that, “[t]he covered time period is precise. The class members…are identified by job titles that are used every day by the Defendant…[and have] the same or very similar job functions”: Rosen v BMO Nesbitt Burns Inc., 2013 ONSC 2144, at para 38, 119 (SCJ).

[16] Defendant’s counsel takes issue with the Plaintiff’s characterization of the class. For the most part, however, the objection goes to the issue of commonality rather than to class identity itself. There is, of course, some overlap between these two criteria. So, for example, the Defendant’s position is that this is a “classification” case, and that some of the yard employees are managers and are therefore misclassified as employees who are subject to the ESA 44-hour overtime requirement. Defendant’s counsel argues that this feature of the case will require individual determinations of who is in and who is outside of the class.

[17] In my view, the Defendant’s objection goes more to the commonality criterion in section 5(1)(c) than to the identification of the class, and accordingly it will be discussed below. For now, there is little doubt that the Plaintiff has identified a proposed class of two or more persons, of which the Plaintiff is one, based on objectively discernable factors. The proposed class is a finite one, of manageable size, Lau v Bayview Landmark Inc. (1999), 40 CPC (4th) 301, at para 26 (SCJ), and its definition does not depend on a determination of the action’s merits: Bywater v Toronto Transit Commission (1998), 27 CPC (4th) 172 (Gen Div).

[18] There is an identifiable class represented by the Plaintiff as required under section 5(1)(b) of the CPA.

c) Common issues

[19] The common issues as proposed by the Plaintiff are set out in Schedule “C” of his counsel’s factum as follows:

a. Was it a term of Class Members’ contracts of employment with Strada Crush Limited (‘Strada’) that they would be paid for:

i. overtime in a manner that complied with the applicable provisions of the Ontario Employment Standards Act and its regulations; or

ii. Public Holiday pay in a manner that complied with the applicable provisions of the Ontario Employment Standards Act and its regulations?

b. Did Strada have, at any time during the Class Period, a policy or practice of avoiding or disregarding its obligations to pay overtime or Public Holiday pay to Class Members in accordance with their contractual entitlements?

c. Did Strada owe Class Members a duty (in contract or otherwise) to act in good faith and deal with them in a manner characterized by candour, reasonableness, honesty and/or forthrightness in respect of Strada’s obligations to pay overtime and/or Public Holiday pay to Class Members?

d. If the answer to ‘c’ is ‘yes’, did Strada breach this duty owned to Class Members?

e. Did Strada owe Class Members a duty (in contract or otherwise) to take reasonable steps to ensure that it met its obligations to pay overtime and/or Public Holiday pay to Class Members by, for example, having reasonable and effective systems, procedures and/or policies in place to monitor and accurately record the hours worked and duties performed by Class Members and to ensure that all Class Members were paid for all overtime hours worked and/or Public Holiday pay?

f. If the answer to ‘e’ is ‘yes’, did Strada breach this duty owed to Class Members?

g. Was Strada enriched at any time during the Class Period by failing to pay overtime and/or Public Holiday pay to Class Members in accordance with its obligations?

h. If the answer to ‘g’ is ‘yes’, did Class Members suffer a corresponding deprivation?

i. If the answer to ‘h’ is ‘yes’, is there a juristic reason for Strada’s enrichment?

j. If the answer to some or all of the common issues is ‘yes’, is Strada potentially liable on a class-wide basis?

k. If ‘yes’ to ‘j’, what is the quantum of aggregate damages owed to Class Members?

l. What is the appropriate method or procedure for distributing the aggregate damages award to Class Members?

m. Is the Class entitled to an award of aggravated, exemplary or punitive damages based upon Strada’s conduct towards some or all Class Members?

n. If ‘yes’ to ‘m’, what is the appropriate quantum of aggravated, exemplary or punitive damages that should be awarded to the Class?

[20] I will commence the analysis of these proposed common issues by observing that some of them are drafted in a way that contains as much advocacy as inquiry. With due respect, asking whether a party had a duty to be candid and honest, or whether it had a duty to fulfill its obligations, is reminiscent of discovery questions where counsel is hoping the deponent concedes her own culpability by answering in the affirmative and thereby agrees with the incriminating premise of the question.

[21] Questions a, i, and ii can be eliminated altogether, as can questions c and d. The first three questions are self-evident in the sense that the ESA cannot be contracted out of, and it is part of every contract of employment that its terms and those of the Regulations thereunder must be complied with. The pertinent question raised in this case is what are the applicable terms. The fourth and fifth of these questions are either self-serving in that they suggest that if answered in the affirmative (e.g. the Defendant had a duty to be honest and forthright) the Defendant concedes the negative premise of the question (e.g. the Defendant was dishonest and unforthcoming).

[22] The first three questions can be replaced by the following:

Is the Defendant obliged under section 22(1) of the ESA to pay Class Members overtime pay when they work more than 44 hours per week?

Is the Defendant obliged under section 24(1) of the ESA to pay Class Members public holiday pay?

[23] These questions, in turn, raise a number of subsidiary questions going to the Defendant’s defence to the claim, as follows:

Are the Class Members engaged at the site of road building in relation to streets, highways or parking lots such that under section 13 of O Reg 285/01 they are entitled to overtime pay only where they work in excess of 55 hours per week?

Do any of the Class Members perform work that is supervisory or managerial in character and who may perform non-supervisory or non-managerial tasks on an irregular or exceptional basis, such that section 8 (b) of O Reg 285/01 exempts the Defendant from paying them overtime?

Are the Class Members construction employees who work in the construction industry and thus under section 9(2) of O Reg 285/01 can be paid an additional 7.7% or 9.7% (depending on length of employment) of their hourly wages as a substitute for holiday pay, and did the Class Members received this additional pay during the entire class period?

[24] It is the Defendant’s position that the issues raised by the Plaintiff are akin to those employment cases where there is only “superficial commonality” in that the proposed Class Members have a common employer or are subject to a common employment practice: Aston v Casino Windsor, at paras 8-9 (SCJ). Specifically, Defendant’s counsel submits that none of the factors set out by the Court of Appeal in McCracken v Canadian National Railway, 2012 ONCA 445, at para 83, are met, as the individual analysis required to answer the proposed common issues questions would overwhelm the commonality of the answers. These factors include:

a) resolving the issues will avoid duplication of fact finding or legal analysis;

b) success for one Class Member must mean success for all;

c) the answer to the common issues is capable of extrapolation to each Class Member and will significantly advance the litigation for them;

d) resolving the issues is not dependent upon individual findings of fact with respect to each Class Member; and

e) the issues are not overly-broad such that the class action would ultimately break down into individual proceedings.

[25] Turning to the first legal issue arising from the proposed common issues – the applicability of section 22(1) of the ESA and section 13 of O Reg 285/01 to the Class Members – it is difficult to see the Defendant’s point. This case is not analogous to Aston, supra, where each of the managers of the corporate defendant was terminated for different reasons, and so the individualized assessments of the evidence threatened to overwhelm the commonality among the Class Members. Here, the question of whether the 44-hour overtime rule or the 55-hour overtime rule applies is identical for all of the yard employees of the Defendant.

[26] The evidence in the record establishes that the Class Members generally do not work at the site of road building, but rather all work at the Defendant’s yard, and occasionally at demolition sites, in the production of a product, aggregate, that will ultimately be used for road building. It is true, as Defendant’s counsel argues, that they have varied functions – some operate one type of equipment and some another, some crush demolished road material or other structures while others crush virgin rock, some work on the ground and some ride on loaders, etc. All of these examples strike me as distinctions without a difference when it comes to the road building exemption for overtime pay.

[27] Indeed, the Defendant’s own strongest arguments on the merits accept that there is commonality among the Class Members in terms of the road building exemption. Counsel for the Defendant points out that the Ministry of Labour’s Employment Standards Act, 2000: Policy and Interpretation Manuel (the “Manuel”) states that employees in “the crushed stone quarry and sand and gravel industry” fall within the Road Building Exception. The key to this determination, according to the Manuel, is that these employees will be “subject to the special overtime threshold in s. 13(1) [of O Reg 285/01] if more than 50% of the output of the employer’s plant consists of material destined for use in road building”: Manuel, ch. 12, at para 12.4. In other words, the employees’ status for overtime pay purposes turns on the employer’s overall output, not on anything peculiar to the individual employee.

[28] Accordingly, when it comes to the question of whether the Class Members are subject to the usual overtime pay requirement in section 22(1) of the ESA or subject to the exemption from that requirement in section 13 of O Reg 285/01, a decision for one is the same as a decision for all. It is the individual aspects of each Class Member’s job, and not the commonality among them, that are superficial characteristics of their employment for the purposes of determining overtime pay. The question of whether the road building exception applies is a common issue for the purpose of section 5(1)(c) of the CPA.

[29] The same may be said for the holiday pay question and the exemption thereto. The Defendant relies on the exemption in section 9(2) of O Reg 285/01, which applies to “construction employees who work in the construction industry”. The question of whether the Defendant is part of the “construction industry” again turns on an evaluation of the company overall, and not the role of any given employee.

[30] Likewise, the question of whether the Class Members are “construction employees” is common to all of them. Despite the superficial differences among them, O Reg 285/01 defines a “construction employee” as a person who works either at a construction site or off-site in the construction industry. In other words, once it is determined whether the Defendant, in manufacturing a product for use in road building and elsewhere, is or is not part and parcel of the construction industry, the question will be determined for the Class Members as well.

[31] Accordingly, as with the road building exemption, the construction employee exemption from the holiday pay requirement can be assessed in common. Either the Defendant’s yard workers, being engaged in the production of aggregate in the Defendant’s yard – i.e. not on a construction site – are entitled to full holiday pay under section 24(1) of the ESA or they are within the exemption in section 9(2) of O Reg 285/01. It does not seem to matter whether the particular employee operates a loader or wields a hand-held shovel; a decision for one is effectively a decision for all. The question of whether the holiday pay requirement applies is a common issue for the purpose of section 5(1)(c) of the CPA.

[32] The question of whether the Class Members, or any of them, “perform work that is supervisory or managerial in character” and thus come within the exemption from overtime pay in section 8 (b) of O Reg 285/01 at first does seem to raise an individualized assessment. Winkler CJO in McCracken, supra, at para 117, suggested that “the indicia of managerial status [require] an individual assessment process for deciding which of the class members are not management.”

[33] Likewise, in Brown v Canadian Imperial Bank of Commerce, 2014 ONCA 677, at para 35, Doherty JA found that “an employee’s level of autonomy and managerial or supervisory authority cannot be determined by reference to job title or job classification”, but rather must be determined by evidence adduced on a person-by-person basis. He went on to opine that “commonality exists only where the evidence establishes some basis in fact to find that the functions, responsibilities and duties of all of the employees in the putative class are sufficiently similar”, and that determination of whether that authority is such as to place an [employee] within the managerial/supervisory exception to eligibility for overtime pay could only be made by an examination of the specific circumstances relevant to the individual”: Brown, at para 49.

[34] The key feature of those cases, of course, was the introduction of cogent evidence that made the question of management or no management highly contentious. On the state of the record before me, that is not the case here. The affidavit of the Defendant’s general manager confirms that the foremen and supervisors among the Class Members are “working foremen”, who spend their working day engaged in crushing activities as part of the crew team.

[35] In this respect, the bulk of the work performed by these “management” personnel is indistinguishable from that of any other member of the aggregate-producing team. In cross-examination, another of the Defendant’s affiants testified that the supervisory or managerial tasks performed by any of the Class Members are minimal. They apparently comprise an insignificant amount of time – somewhere in the range of 1% to 2% of the work week.

[36] The Plaintiff deposed that although he himself for a time fulfilled the functions of a foreman, he was a working foreman and was never paid as a supervisor, foreman or manager. This evidence must be understood with the purpose of the inquiry in mind. The Supreme Court has directed that the court “consider the pertinent legal principles with reference to the evidence adduced on the motion to decide if there is some basis in the evidence to establish the existence of the common issues”: Fulawka v Bank of Nova Scotia, 2012 ONCA 443, at para 79. Employees tasked to spend a small percentage of their time on supervisory matters, who are not paid on a management scale, are unlikely to be considered management personnel for any substantial purpose.

[37] The Supreme Court of Canada has endorsed this approach to the evidence on a certification motion. In Hollick v Toronto (City), 2001 SCC 68, [2001] 3 SCR 158, at para 25, McLachin CJ indicated that, “…the class representative must show some basis in fact for each of the certification requirements set out in . . . the Act, other than the requirement that the pleadings disclose a cause of action.”

[38] Likewise, in Pro-Sys, supra, at para 102, 103, Rothstein J., for a unanimous Court, stated that while “the ‘some basis in fact’ standard…has never been judicially interpreted to require evidence on a balance of probabilities…it is…a meaningful screening device.” The Court went on to observe, at para 103, that this “standard for assessing evidence at certification does not give rise to ‘a determination of the merits of the proceeding’; nor does it involve such a superficial level of analysis into the sufficiency of the evidence that it would amount to nothing more than symbolic scrutiny.”

[39] Indeed, the Defendant in the present case accepts the proposition that positions put forward in a certification motion must be premised on some basis in fact. Defendant’s counsel specifically invokes this standard in its argument against the holiday pay allegation contained in the Plaintiff’s claim, arguing in its factum that “[t]here is no basis in fact to support this allegation.” As indicated above, the allegation with respect to holiday pay turns on whether the Class Members fall within the construction employees exemption in O Reg 285/2001 as an issue common to all of them, but Defendant’s counsel is correct that the ‘some basis in fact’ analysis generally is applicable to this and all other claims put forward by a Plaintiff seeking certification. Certification plays a gatekeeping function, and is not a rubber stamp on bald assertions with no basis in fact.

[40] For the very same reason, matters raised by a Defendant in response to a Plaintiff’s claim are not to be taken at face value. Defences, too, need at least some basis in fact before they can be relied upon to block certification of a claim. It does not suffice for a Defendant to invoke the managerial exemption for holiday pay in section 8 (b) of O Reg 285/2001 without providing some evidence – not to the level of proof on a balance of probabilities, but at least some cogent evidence – that the yard workers who comprise the proposed body of Class Members are really considered management.

[41] The Defendant’s general manager has not really countered the Plaintiff’s evidence that while the Plaintiff and others in his position perform some supervisory tasks, that is an extremely small part of their job and occupies an extremely small percentage of their time. Rather, what the Defendant’s main affiant says is that it is difficult to know exactly when a yard worker such as the Plaintiff will be called upon to supervise something; and in that kind of work context, for example, Defendant’s counsel contends that “yard employees will sometimes step into the role of foreman temporarily because of an injury or an absence”. Thus, the Defendant’s general manager has deposed that any given worker could be considered “a foreman all day long” and “just because he is doing something else doesn’t mean he is not a foreman.”

[42] With respect, the Defendant’s position here appears contrived. It attempts to convert what the Plaintiff has described as a de minimis aspect of a Class Member’s job into a potentially substantive aspect by saying, in effect, ‘you never know’ when someone will be called upon to step in and supervise something. A laborer whose daily job is simply to hold a ladder in place while someone climbs up may turn into an instant foreman or supervisor if an accident happens and someone falls off the ladder. That kind of temporary ‘supervisory’ function could characterize the work of every employee everywhere. Without meaning to be glib, the mail room staff of a law firm could become temporary ‘foremen’ if a dangerous or suspicious parcel were delivered, but that potentiality does not turn them into managing partners.

[43] It may turn out, of course, that the Defendant’s policies with respect to supervision actually do amount to more than the Plaintiff attests that they amount to, but on the current state of the record that determination will be a systemic one. The issue of holiday pay, including whether or not the Class Members qualify for the managerial exemption, qualifies as a common issue for section 5(1)(c) purposes.

[44] The balance of the Plaintiff’s proposed common issues build on the three issues discussed above – i.e. overtime pay and the road building exemption, overtime pay and the management exemption, and holiday pay and the construction employee exemption. The Statement of Claim pleads unjust enrichment and breach of good faith by the Defendant in respect of these issues, and seeks damages, including punitive damages, as a remedy. Whether the Plaintiff can ultimately prove these claims can be determined for all of the Class Members in common.

[45] I would therefore identify the common issues for the purposes of section 5(1)(c) of the CPA as follows:

a. Is the Defendant obliged under section 22(1) of the ESA to pay Class Members overtime pay when they work more than 44 hours per week?

i. In determining question a, are the Class Members engaged at the site of road building in relation to streets, highways or parking lots such that under section 13 of O Reg 285/01 they are entitled to overtime pay only where they work in excess of 55 hours per week?

ii. In determining question a, do any of the Class Members perform work that is supervisory or managerial in character and who may perform non-supervisory or non-managerial tasks on an irregular or exceptional basis, such that section 8 (b) of O Reg 285/01 exempts the Defendant from paying them overtime?

b. Is the Defendant obliged under section 24(1) of the ESA to pay Class Members public holiday pay?

i. In determining question b, are the Class Members construction employees who work in the construction industry and thus under section 9(2) of O Reg 285/01 can be paid an additional 7.7% or 9.7% (depending on length of employment) of their hourly wages as a substitute for holiday pay, and did the Class Members received this additional pay during the entire class period?

b. Did Strada have, at any time during the Class Period, a policy or practice of avoiding or disregarding its obligations to pay overtime or Public Holiday pay to Class Members in accordance with their contractual entitlements?

c. Did Strada owe Class Members a duty (in contract or otherwise) to take reasonable steps to ensure that it met its obligations to pay overtime and/or Public Holiday pay to Class Members by, for example, having reasonable and effective systems, procedures and/or policies in place to monitor and accurately record the hours worked and duties performed by Class Members and to ensure that all Class Members were paid for all overtime hours worked and/or Public Holiday pay?

d. If the answer to ‘e’ is ‘yes’, did Strada breach this duty owed to Class Members?

e. Was Strada enriched at any time during the Class Period by failing to pay overtime and/or Public Holiday pay to Class Members in accordance with its obligations?

f. If the answer to ‘g’ is ‘yes’, did Class Members suffer a corresponding deprivation?

g. If the answer to ‘h’ is ‘yes’, is there a juristic reason for Strada’s enrichment?

h. If the answer to some or all of the common issues is ‘yes’, is Strada potentially liable on a class-wide basis?

i. If ‘yes’ to ‘j’, what is the quantum of aggregate damages owed to Class Members?

j. What is the appropriate method or procedure for distributing the aggregate damages award to Class Members?

k. Is the Class entitled to an award of aggravated, exemplary or punitive damages based upon Strada’s conduct towards some or all Class Members?

l. If ‘yes’ to ‘m’, what is the appropriate quantum of aggravated, exemplary or punitive damages that should be awarded to the Class?

d) Preferable procedure

[46] There is little doubt in my mind that a class action is the preferable procedure for resolving the common issues. The majority of the Class Members are former employees of the Defendants who have left this job behind – some of them many years ago. The overtime and holiday pay issues, while potentially substantial for long term employees, may be relatively small for shorter term employees. Many individual Class Members are likely not to have a sizable enough claim to bring an action on their own.

[47] In addition, the Plaintiff has made allegations of bad faith and systemic employer misconduct which are best explored in a common issues trial. The overall conduct of the Defendant is more likely to be obscured in a series of one-on-one actions brought by individual current and former employees.

e) Representative plaintiff

[48] The Plaintiff appears to be an appropriate representative Plaintiff for this action. His affidavit attests to the fact that he has held numerous positions working for the Defendant, and is knowledgeable about most of the work-related issues faced by the Class Members. He has been appropriately involved in instructing counsel to date and will doubtless continue to do so going forward.

[49] Defendant’s counsel complains about testimony by the Plaintiff that suggested that he was speaking for two other Class Members when it turned out that neither of those two individuals had reviewed his affidavit. That is, of course, unfortunate and should not happen.

[50] Defendant’s counsel draws a parallel between this circumstance and Sondhi v Deloitte Management Services, 2017 ONSC 2122, at para 42, where the proposed representative plaintiff was admonished by the motions judge for failing to review his own affidavit. Here, the Plaintiff was attentive to his affidavit but the other two Class Members neglected to review it. That is not evidence of unreliability on the Plaintiff’s part; rather, it is reflective of a glitch in communication. I would recommend that Plaintiff’s counsel keep better track of such matters along with the Plaintiff so that communications run smoothly with respect to documents drafted by counsel for submission to the court.

[51] There is no evidence of any conflict of interest between the Plaintiff and the other Class Members. I am convinced that he has the stature among the Class Members and the ability to represent their interests in the way expected of him.

[52] The one issue that has given me pause is that spelled out in section 5(1)(e)(ii) – whether the Plaintiff 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 Plaintiff 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 Plaintiff 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.

[53] A litigation plan is the document that best signals to the court whether the class proceeding as proposed by the Plaintiff is workable: Carom v Bre-Ex Minerals Ltd. (1999), 44 OR (3d) 173, 223 (SCJ). 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 Plaintiff’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.

[54] A workable litigation plan should address as many stages and issues as possible to help the court understand how the case might proceed. These include identifying the kind of expert and other evidence that is envisioned, setting out the investigations that have been or will be conducted, making provision for documents management, and explaining the proposed handling of individual issues following the resolution of common issues: see Jon Foreman and Genevieve Meisenheimer, “The Evolution of the Class Action Trial in Ontario” (2014), 4 Western J. Legal Studies 1, 6.

[55] Pursuant to my invitation, counsel for the Plaintiff 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 Plaintiff’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 Plaintiff, 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.

[56] I am mindful of the Court of Appeal’s admonishment that a judge on a certification motion ought not take “an unreasonably rigid view by requiring that all the details for the litigation be ‘within the four corners of the plan itself’”: Pearson v Inco Inc. (2005), 78 OR (3d) 641, at para 97. The essence of the Plaintiff’s claim is set out in his affidavit, which more than adequately illustrates the evidence that will be brought to bear in the case.

[57] Counsel has been able to identify the Class Members, and the documentary evidence (payroll records, time cards, etc.) will fulfill much of the task of identifying the overtime and holiday pay issues at stake. The representative Plaintiff appears to be well known to the Class Members and his counsel has established a database of Class Members. Plaintiff’s counsel has also illustrated through the submissions and evidence in this motion that the most central issues in the action are ones of statutory interpretation and employment standards policy, which call for a combination of legal argument and evidence.

[58] Counsel for the Defendant submits that the Plaintiff’s litigation plan, even in its now fulsome form, is inadequate. In the first place, he takes issue with the fact that the plan still contains the prospect of a summary judgment motion, and to this end puts forward an outline of the Defendant’s substantive position opposing summary judgment. This position, however, does not address the litigation plan as such. It goes more to the merits and, accordingly, is not relevant here.

[59] I express no view as to whether or not a summary judgment motion will succeed, and will wait to determine that when and if the motion is brought.

[60] Defendant’s counsel also points out a number of specific items in the litigation plan which he says are misplaced or questionable. These include commentary on the number of days estimated for discovery, an observation that the plan sets out the timing of any expert reports but that neither side has yet to indicate the need for such reports, a note that the phrase “Approved Claim” has not been specifically defined in the plan, and a failure of the plan to specify the mechanics of any claims process or compensation mechanism in the event the class is successful at trial.

[61] At the certification stage, a litigation plan must be workable, not perfect. In Windsor v Canadian Pacific Railway, 2006 ABQB 348, [2006] 8 WWR 672, at para 162, Rooke J. of the Alberta Court of Queens Bench held that a similar requirement in that province’s class proceedings statute meant that the plan need only be “capable of implementation in the circumstances”.

[62] At the most general level, the purpose of the litigation plan, like that of the section 5(1) criteria overall, is to foster the goals of class actions: access to justice for plaintiffs, judicial economy, and behavior modification of defendants: Cloud v Canada (Attorney General) (2004), 247 DLR (4th) 667, at para 17 (Ont CA).

[63] The Defendant’s issues with the Plaintiff’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 Plaintiff’s counsel.

[64] The Plaintiff has satisfied the criterion in section 5(1)(e)(ii) of the CPA, and has produced a litigation plan that establishes a workable approach to the proceeding on behalf of the Class Members.

III. Disposition

[65] The criteria for certification under section 5(1) of the CPA are all met. This action is certified as a class proceeding.

[66] The issues as set out in paragraph 45 above are certified as the common issues.

[67] Counsel shall prepare an order, in the form contemplated by section 8 of the CPA. If they are unable to agree on the form of the order a case conference may be arranged.

[68] Counsel may make written submissions with respect to costs.

[69] I would ask Plaintiff’s counsel to provide me with a Costs Outline and brief written submissions within 10 days of the date hereof. I would likewise ask Defendant’s counsel to provide me with brief written submissions within 10 days of receiving Plaintiff’s counsel’s submissions.

August 17, 2018

Morgan J.

Reasons for Judgment

COURT FILE NO.: CV-17-581322-00CP DATE: 20180817 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: GEORGE AZAR Plaintiff – and – STRADA CRUSH LIMITED Defendant

REASONS FOR JUDGMENT E.M. Morgan J. Released: August 17, 2018