Court File and Parties
COURT FILE NO.: CV-19-00616354-00CP
DATE: 20191202
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: WILL MORRIS, Plaintiff
– and –
SOLAR BROKERS CANADA CORP., JEAN CLAUDE AWWAD AND JOSEPH BARKER, Defendants
BEFORE: EM Morgan J.
COUNSEL: Alexandra Monkhouse and Andrew Monkhouse, for the Plaintiffs
David Milosevic, for the Defendants
HEARD: November 25, 2019
certification motion – amended endorsement
[1] This proposed class action concerns the classification of non-managerial sales representatives who work or worked for the Defendant, Solar Brokers Canada Corp. (“Solar”). Are they independent contractors (as the Defendants assert) or employees (as the Plaintiff claims)?
[2] The personal Defendants are directors of Solar. They have been named by the Plaintiff as Defendants given the employment context of this claim and what I am advised is Solar’s potential insolvency proceeding. For certification purposes, counsel for the Defendants has taken no issue with this aspect of the claim.
[3] Counsel appeared before me at the certification hearing and advised that the motion to certify the claim under section 5(1) of the Class Proceedings Act, 1992 (“CPA”) is proceeding on consent, with the exception of two related issues: a) does the class need to be broken up into two subclasses, and b) if so, does there need to be a second representative plaintiff for the subclass to which the current sole Plaintiff does not belong?
[4] The class as put forward by the Plaintiff encompasses all non-managerial sales representatives who, since 2016, worked or continue to work for Solar and who were classified as independent contractors.
[5] Defendants’ counsel submits that the two appropriate subclasses, reflecting two different job descriptions, are “lead generators” and “appointment bookers”. The former group is tasked with the job of obtaining contact information of homeowners interested in solar panels, and the latter is tasked with the job of calling those homeowners in an effort to convince them to book appoints with managerial sales representatives referred to as “closers”.
[6] Regardless of whether or how the proposed class is divided, the members of the class are rationally connected with the common issues and are easily identified. Solar has all of the class members’ information, including names, contact information, and days and hours worked. Accordingly, the requirement in section 5(1)(b) of the CPA that there be an identifiable class is satisfied. The further question of a possible division into two subclasses is discussed below.
[7] Lead generators and appointment bookers are both considered to be independent contractors by the Defendants. In taking the position that they should be considered employees, the Plaintiff claims, on behalf of the class, entitlement to minimum employment standards under the Employment Standards Act and reimbursement of CPP or EI contributions which may have been paid or are owed resulting from their alleged misclassification as independent contractors. This claim satisfies the requirement under section 5(1)(a) of the CPA that there be a cause of action.
[8] The Plaintiff worked as an appointment booker. His duties included working from Solar’s headquarters for 7 hours a day, 5 days a week, calling leads generated by lead generators and provided to him by Solar. There is no issue about his competence as a representative Plaintiff and his ability to be engaged in the case, to instruct counsel, and to have a fitting litigation plan. The requirements of section 5(1)(e)(i) and (ii) of the CPA are therefore satisfied. The further question of whether the Plaintiff is free of any conflict of interest, as required by section 5(1)(e)(iii) of the CPA, is discussed below.
[9] The parties agree that, whether or not the class is divided into two, a class action is the appropriate way to proceed. In this kind of employment context, a class proceeding promotes access to justice and judicial economy. Section 5(1)(d) of the CPA is therefore satisfied.
[10] Counsel for the Plaintiff and counsel for the Defendant have provided a list of common issues to which both sides agree. This list, which satisfies the requirement of section 5(1)(c) of the CPA, reads as follows:
- Whether the actual circumstances of the relationship between Solar and the class members constitute an employee/employer relationship such that the class members were not ‘independent contractors’.
If the answer to 1 is yes:
- What are the terms (express or implied or otherwise) of the class members’ contracts of employment with Solar regarding:
(a) Regular and overtime hours of work;
(b) Recording of the hours worked by the class members;
(c) Breaks;
(d) Payment of hours worked by class members; and
(e) Lieu time as purported compensation for overtime hours worked.
- Whether Solar breached any of the contractual terms and if so, how. Without limiting the generality of the forgoing, whether the class members are owed damages from the Defendants for:
(a) Unpaid overtime;
(b) Compensation below minimum wage;
(c) Vacation pay; and
(d) Public holiday pay and premium pay.
- Whether Solar has a duty (in contract, tort or otherwise) to prevent class members from working, or a duty not to permit or not to encourage class members to work, overtime hours for which they were not properly compensated or for which Solar would not pay.
(a) If such a duty exists, whether Solar breached that duty.
- Whether solar has a duty (in contract, tort or otherwise) to accurately record and maintain a record of all hours worked by class members to ensure that class members were appropriately compensated for same.
(a) If such a duty exists, whether Solar breached that duty.
- Whether Solar has a duty (in contract, tort or otherwise) to implement and maintain an effective and reasonable system or procedure which ensured that the duties in Common Issues 2 and 3 were satisfied for all class members.
(a) If such a duty exists, whether Solar breached that duty.
Whether Solar is liable, and must reimburse the class members, for any Canada Pension Plan or Employment Insurance Act contributions which they may have paid or are owed resulting from a determination that the class members are/were employees of Solar and not independent contractors.
Whether the individual defendants Jean Claude Awwad and Joseph Barker are personally liable for unpaid wages under sections 80 and 81 of the Employment Standards Act, 2000 or section 11 of the Ontario Business Corporations Act.
If liability is established, are aggregate damages available?
If the answer to 9 is yes:
What is the most efficient method to assess those aggregate damages? Without limiting the generality of the foregoing, can aggregate damages be assessed in whole or in part on the basis of statistical evidence, including statistical evidence based on random sampling?
What is the quantum of aggregate damages owed to class members or any part thereof?
What is the appropriate method or procedure for distributing the aggregate damages award to class members?
[11] As indicated, counsel for the Defendants submits that the class should be divided into two subclasses.
[12] I understand why counsel for the Plaintiff opposes this proposal. She argues that while the job descriptions may differ, the lead generators and the appointment brokers have the same relationship to Solar – which is, after all, what the Plaintiff’s claim is all about. At the same time, I understand why Plaintiff’s counsel does not object to the division of the class in a particularly strenuous way. The common issue questions apply to all of the class as defined by Plaintiff’s counsel, but the answers might be different depending on the individual’s job.
[13] Common issue 2, for example, asks about the terms of the class members’ employment. It may be that the terms of employment for lead generators are somewhat different than for appointment bookers. Common issue 3 asks whether Solar breached any of those terms. It may be that if the terms are different, the breaches, if any, will be different. I make no judgment here on the merits of any of these issues, but it is easy to see how the answers might differ as between the two types of job categories at issue here.
[14] Dividing the class into two subclasses seems a convenient way to address this state of affairs. If it turns out that the answers to the common issues are the same for lead generators as for appointment bookers, no harm is done by initially dividing them into two subclasses. And if the answers turn out to be different for each of those two categories of workers, the division into two subclasses from the outset will make the common issues trial that much more logical and efficient. There is no particular prejudice to the class in proceeding with two subclasses rather than one overall class.
[15] Counsel for the Defendants also submits that along with dividing the class into two subclasses there needs to be a second representative Plaintiff. He argues that the current sole Plaintiff does not satisfy the requirement of section 5(1)(e )(iii) of the CPA that he be free from any conflict
[16] It is the Defendants’ position that as an appointment booker, the Plaintiff cannot properly represent the lead generators. They say that a second representative Plaintiff must be nominated in order to represent the interests of the lead generators. Defendants’ counsel argues that as an appointment booker the Plaintiff is in a conflict position because the appointment bookers may end up asking for different things or making different arguments than the lead generators. He submits that this is a possibility because the two positions have different job descriptions and fulfill different functions within the Solar sales force.
[17] Plaintiff’s counsel opposes this argument about the representative Plaintiff far more strenuously than she opposes the division of the class. While the class is not particularly prejudiced by being subdivided into two job categories, the class is put at some disadvantage if counsel must now bring on board a second representative Plaintiff. Plaintiff’s counsel candidly admits that they have not located another willing representative and that they would require some time to find one if that becomes necessary.
[18] In my view, it is not necessary for the class to be represented by two Plaintiffs – at least, not at this stage. The mere fact that there will be two subclasses does not meant that the Plaintiff cannot be the sole representative of the class. The Court of Appeal has expressly stated that the CLA does not preclude a Plaintiff from representing more than one subclass, or representing the overall class as well as one or more subclasses: Amyotrophic Lateral Sclerosis Society of Essex v Windsor (City), 2015 ONCA 572, para 55.
[19] The Court of Appeal was faced with this very question in Anderson v Wilson (1999), 1999 CanLII 3753 (ON CA), 44 OR (3d) 673. There, counsel for the defendant had speculated that the differences between the two classes might compel the representative plaintiff to take contradictory positions as between them, which would put him in an impossible situation. Defendants’ counsel makes a similar argument here. That is, he does not say that the two classes have conflicting positions, but rather that somewhere down the road such a conflict may develop.
[20] The Court answered this objection by refusing to engage in speculation at this stage, especially where there was no specific indication from the questions or the nature of the issues that a conflict was in the offing. Efficiency calls for proceeding with one representative Plaintiff unless there is an actual, non-hypothetical reason to do otherwise. As the Court of Appeal put it in Anderson:
I cannot see any reality at this stage to the argument that they would not fairly and adequately represent the interest of all patients or that there is presently any conflict of interest. Most of the facts pertaining to the issues to be tried are common to all. If and when real problems arise, it will not be difficult to create separate representation. In the meantime, economy favours single representation.
[21] The two subclasses of lead generators and appointment brokers present somewhat different background facts, but they do not have conflicting claims against the Defendants. The Plaintiff is not in a conflict of interest with any portion of the class. Accordingly, the requirement of section 5(1(e)(iii) of the CPA is satisfied with the current Plaintiff as sole Plaintiff.
[22] This action meets all of the criteria set out in section 5(1) of the CPA. It is hereby certified as a class proceeding.
[23] The Plaintiff is confirmed as representative Plaintiff. Plaintiff’s counsel are appointed as class counsel.
[24] The common issues are as set out in para 10 above.
[25] The class is defined as:
All non-managerial sales representatives who, since 2016, worked or continue to work for Solar and who were classified as independent contractors.
[26] The class is divided into two subclasses:
(a) all class members who, since 2016, worked or work for Solar as lead generators; and
(b) all class members who, since 2016, worked or work for Solar as appointment bookers.
[27] I commend both sets of counsel for working cooperatively toward resolution of most of the certification issues.
[28] Upon request of the moving party, the court has agreed to accept cost submissions from the Plaintiff by December 6, 2019 and Defendants by December 13, 2019.
Morgan J.
Date: December 2, 2019