Court File and Parties

COURT FILE NO.: CV-19-681043-00CP DATE: 20200120 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: KABIR SINGH, Plaintiff AND: RBC INSURANCE AGENCY LTD. and AVIVA GENERAL INSURANCE COMPANY, Defendants

BEFORE: Justice Glustein

COUNSEL: Andrew Monkhouse and Alexandra Monkhouse, for the plaintiff Paul J. Martin, for the defendant Aviva General Insurance Company Jeremy Devereux, for the defendant RBC Insurance Agency Ltd.

HEARD: January 9, 2020

Reasons for Decision

Nature of hearing and overview

[1] The parties seek directions on the scheduling of the proposed summary judgment motion (the “Summary Judgment Motion”) by the defendant, Aviva General Insurance Company (“Aviva General”).

[2] Aviva General asks the court to schedule the Summary Judgment Motion before the certification hearing. The defendant, RBC Insurance Agency Ltd. (“RBC IA”) supports the position of Aviva General but filed no material and made only a brief submission at the hearing.

[3] The plaintiff, Kabir Singh (“Singh”), opposes the sequencing request.

[4] For the reasons that follow, I agree with Singh and dismiss the request of Aviva General to schedule the Summary Judgment Motion before the certification hearing. I make no other sequencing finding, and in particular, I do not address whether the Summary Judgment Motion can be brought concurrently with the certification motion, as that issue is not before me.

Nature of the action

[5] I review the nature of the action based on the pleadings and the certification affidavit evidence filed by the plaintiff. I make no factual findings.

[6] The proposed class action is brought on behalf of all commissioned employees who worked as Property and Casualty insurance advisors (“Advisors”) for (i) RBC General Insurance Company (“RBC General”), a predecessor to Aviva General and (ii) RBC IA. The proposed class members were allegedly paid vacation pay and statutory holiday pay on their base salary rather than their total wages.

[7] Singh worked for RBC General from January 19, 2016 until June 30, 2016, and subsequently for RBC IA, after the Acquisition (as defined below) until the termination of his employment in April 2019.

[8] Singh’s affidavit evidence for the certification motion (and as alleged in the Amended Statement of Claim) is that he became a commissioned Advisor as of May 2018. Singh’s certification affidavit evidence is that he was induced to leave his higher-paid position as an “Advice Centre Advisor” to become an Advisor, by “the promise that I would be able to earn more than in my prior position, due to the result of higher variable compensation”.

[9] In January 2016 Aviva Canada Inc. announced the acquisition of RBC General and a 15-year strategic partnership with RBC Insurance (the brand name for the insurance operating entities of Royal Bank of Canada) (the “Acquisition”). The Acquisition was effective July 1, 2016, and the RBC General name was changed to Aviva General.

[10] Since the Acquisition, Aviva General has operated as a licensed insurance company in Ontario and elsewhere in Canada that offers insurance products through licensed insurance agents.

[11] Pursuant to the Acquisition, the insurance sales and distribution business of RBC General was transferred to the newly-created RBC IA. Aviva General acquired only the insurance underwriting and claims handling business of RBC General.

[12] Consequently, employees such as Singh who had been employed in the sales and distribution business of RBC General became employees of RBC IA.

[13] RBC IA is a licensed corporate insurance agency in Ontario and elsewhere in Canada. RBC IA is not an insurance company and does not offer its own insurance products. It offers insurance products of Aviva General to members of the public.

[14] Aviva General alleges that (i) it has an arm’s length commercial relationship with RBC IA; and (ii) RBC IA is neither controlled by nor affiliated with Aviva General.

[15] Singh alleges that Aviva General is liable for employment standards violations to commissioned Advisors both as (i) successor of RBC General and as (ii) a common employer with RBC IA following the Acquisition. Singh relies on the following allegations:

(i) In May 2016, all insurance advisors received a flyer outlining the changes that would occur as a result of the Acquisition. The flyer provides that “at close” “P&C [Property and Casualty] Advisors become employees of RBC Insurance Agency Ltd. Their Licence is sponsored by Aviva General Insurance Company”;

(ii) The flyer referred to the “innovative approach for future growth” of both “RBC Insurance and Aviva Canada”, with “Home & Auto policies underwritten by [Aviva General]” and “Underwriting, Billing, Claims and Product moved to Aviva”;

(iii) The flyer indicated that the telephone numbers of the former RBC General “Underwriting, Billing, Claims and Product employees (i.e. Aviva employees at close)” would not change; and

(iv) Following the Acquisition, Aviva General representatives attended meetings involving Advisors in respect of issues regarding their conduct in the sale and marketing of Aviva products. In particular, representatives of both RBC IA and Aviva General investigated Singh and met with him for this purpose.

[16] In the alternative, Singh relies on the above pleadings and documents to claim that Aviva General and RBC IA formed a partnership or joint venture following the Acquisition and that they are jointly liable for employment standards violations.

Procedural steps in the action to date

[17] Singh commenced the class action on April 12, 2019. Aviva General served its notice of intent to defend on April 29, 2019. RBC IA served its notice of intend to defend on May 14, 2019.

[18] Singh served his certification motion record on July 12, 2019.

[19] Singh served an Amended Statement of Claim on July 23, 2019.

[20] The defendants have not delivered motion records for the certification motion.

The Summary Judgment Motion

[21] Aviva General proposes to bring a summary judgment motion to dismiss the claim only as against it. RBC IA does not seek summary judgment.

[22] Aviva General submits that it is entitled to summary judgment because:

(i) Aviva General is not jointly liable with RBC IA for the damages claimed for commissions after the Acquisition since they were not common employers or partners, whether by way of joint venture or otherwise, in respect of Singh’s employment;

(ii) Singh’s claim was commenced more than two years after he ceased to be employed by RBC General and is therefore statute barred against Aviva General (as RBC General was the predecessor); and

(iii) Singh’s claim for vacation and statutory holiday pay on commissions while employed by RBC General cannot be maintained because he did not earn any commissions while employed by RBC General. Consequently, Singh has already received his full statutory entitlement for vacation pay and statutory holiday pay for the period of time when he was employed by RBC General.

The applicable law on partial summary judgment motions

[23] The Summary Judgment Motion will not result in the dismissal of the entire class action. Even if Aviva General succeeds on all grounds, RBC IA will remain as a defendant for alleged employment standards violations arising after the Acquisition.

[24] The issue of whether it is appropriate to grant partial summary judgment is not before the court on the scheduling issue. I make no finding on the issue as it would need to be addressed if, and when, Aviva General seeks summary judgment.

[25] However, the principles addressing the exceptional nature of partial summary judgment are relevant to the scheduling issue, as I discuss below. I summarize those principles as follows:

(i) Partial summary judgment should not be granted when the answer to the questions before the court “are inextricably connected to the dealings that took place” with the remaining parties, since “[o]ne simply cannot separate those dealings into discrete compartments and pretend that a determination of one does not have any impact on the others” (Mason v. Perras Mongenais, 2018 ONCA 978, at paras. 37-38);

(ii) The advisability of partial summary judgment must be considered in the context of the “litigation as a whole” (Baywood Homes Partnership v. Haditaghi, 2014 ONCA 450, 120 O.R. (3d) 438, at para. 35), and the motions court should not make summary determinations if doing so “risks inconsistent findings and substantive injustice” (Baywood Homes, at paras. 36-37); and

(iii) Partial summary judgment “should be considered to be a rare procedure that is reserved for an issue or issues that may be readily bifurcated from those in the main action and that may be dealt with expeditiously and in a cost effective manner” given the risks involved with partial summary judgment which include (a) delay and the possibility of an appeal (b) expense, (c) increased judicial resources for “judges, who already face a significant responsibility addressing the increase in summary judgment motions”, and (d) the “likely” less expansive record on the motion than would be available at trial (Butera v. Chown, Cairns LLP, 2017 ONCA 783, at paras. 30-34, cited at Mason, at para. 22).

[26] I do not address Singh’s submission that “the case does not meet the extremely limited use for partial summary judgment motions outlined by the Ontario Court of Appeal”, as that is a substantive conclusion which ought not to be determined on a scheduling hearing.

[27] However, to the extent that the Summary Judgment Motion would have to meet the high threshold for a partial summary judgment motion as set out by the Court of Appeal in Mason, Baywood Homes, and Butera, in deciding whether to schedule a precertification summary judgment motion, I consider the potential issues of cost, delay, and efficient use of judicial resources, which could arise if the Summary Judgment Motion is denied.

The applicable law on scheduling precertification summary judgment motions

[28] I rely on the following principles governing scheduling of precertification summary judgment motions:

(i) “[A]s a matter of principle, the certification motion ought to be the first procedural matter to be heard and determined” (Attis v. Canada (Minister of Health), (2005), 75 O.R. (3d) 302 (S.C.), at para. 7);

(ii) If “the motion will not dispose of the entire proceeding, and other issues will still go forward to certification, a summary judgment motion will usually not be permitted before certification” (Patel v. Groupon Inc., 2012 ONSC 1799, 40 C.P.C. (7th) 29, at para. 5);

(iii) The court should consider non-exhaustive factors, as summarized by Strathy J. (as he then was) in Cannon v. Funds for Canada Foundation, 2010 ONSC 146, at para. 15:

1. whether the motion will dispose of the entire proceeding or will substantially narrow the issues to be determined,
2. the likelihood of delays and costs associated with the motion,
3. whether the outcome of the motion will promote settlement,
4. whether the motion could give rise to interlocutory appeals and delays that would affect certification,
5. the interests of economy and judicial efficiency, and
6. generally, whether scheduling the motion in advance of certification would promote the “fair and efficient determination” of the proceeding, and

(iv) Other factors which can be considered include (a) whether the court can assess the strength of the defendant’s arguments and (b) whether there is evidence of a negative impact on the defendant militating in favour of an earlier resolution on the merits (Halliday v. Shaw Communications Inc., 2019 BCSC 2251, at paras. 6, 14, 19, and 29), or (c) whether the motion will do little more than resolve the particular claim of the plaintiff without affecting the claims of other class members that might succeed even if the plaintiff’s individual claim failed and (d) whether the motion raises discrete issues of law that potentially affect the claims of class members (The Law of Class Actions in Canada (Toronto: Thomson Reuters Canada Limited, 2014) at p. 169).

[29] In McKenna v. Gammon Gold Inc. (2009), 84 C.P.C. (6th) 148 (SCJ) (“McKenna”), Strathy J. (as he then was) rejected scheduling a summary judgment motion at the same time as the certification motion. The summary judgment motion was based on the moving party defendants’ position that they could establish that (i) the plaintiff did not rely on the information contained in the prospectus, (ii) the plaintiff suffered no damages as a result of any misrepresentation in the prospectus, and (iii) the claim was statute-barred based on the applicable limitation period (at para. 6).

[30] Aviva General relied on a number of decisions in which the court scheduled a summary judgment or Rule 21 motion before certification. Many of those decisions were reviewed by Strathy J. in McKenna (at paras. 12-18). By way of example:

(i) In Ciano v. York University, [2000] O.T.C. 37 (S.C.), the plaintiff claimed loss of class time and a pro rata refund of fees as a result of a strike at the university. The issue for summary judgment was whether the loss of class time could constitute proof of damages. Winkler J. held that it could not do so, and as such, the motion disposed of the entire proceeding as it eliminated the cause of action (see also McKenna, at para. 13);

(ii) In Segnitz v. Royal & SunAlliance Insurance Co. of Canada, [2001] O.J. No. 6016 (S.C.) (“Segnitz”), the summary judgment motion was based on the defendant’s assertion that “the plaintiff is not a member of the proposed class and has no stake in the potential outcome of the action” (Segnitz, at para. 3; see also McKenna, at para. 14);

(iii) In KRP Enterprises Inc. v. Haldimand (County), [2007] O.J. No. 2967 (S.C.) (“KRP”), the proposed class action was brought by business and property owners who claimed to have suffered a loss as a result of the closure of the main street in Caledonia due to a barricade by protesters. A summary judgment motion was heard before certification on a motion brought by one of the defendants, the Corporation of Haldimand County, on the issue of whether there was a duty in law to remove protesters or open the street (see also McKenna, at para. 15); and

(iv) In Punit v. Wawanesa Mutua Insurance Co. (2007), 61 C.C.L.I. (4th) 79 (S.C.), a summary judgment motion was scheduled before certification on the basis that the plaintiff was not a member of the proposed class since the claim was for damages arising from the use of non-original equipment manufacturer’s parts in motor vehicle repairs when the plaintiff’s repair had been effected with an original part (see also McKenna, at para. 16).

[31] Aviva General also relies on the decision of the Court of Appeal in Stone v. Wellington (County) Board of Education, (1999), 120 O.A.C. 296 (“Stone”), in which the court upheld the decision of the motions judge on a precertification summary judgment motion to dismiss the claim based on a limitation period. However, the basis for that argument was the statutory period set out in the Public Authorities Protection Act, R.S.O. 1990, c. P. 38, which would have disposed of the entire proceeding on a cost-effective, efficient, and timely basis (at para. 3).

[32] Further, in Stone, the plaintiff had not yet brought a motion for certification when the summary judgment motion was brought (at para. 3).

[33] Aviva General also relies on 1523428 Ontario Inc. v. The TDL Group Corp., 2018 ONSC 1180 (“TDL”), but that decision concerned the scheduling of a Rule 21 motion by certain defendants, again reflecting a narrow issue which does not involve a review of the merits of the claim but instead asks the court to consider whether the pleadings, if accepted as true, disclose a cause of action.

Application of the law to the present case

[34] I find that the relevant factors support Singh’s position that the Summary Judgment Motion should not be scheduled before the certification motion. I review these factors below.

a) The proposed Summary Judgment Motion will not dispose of the entire proceeding

[35] The proposed Summary Judgment Motion will not dispose of the entire proceeding. The class action will continue against RBC IA.

[36] As shown by KRP (and by TDL with respect to a motion to strike), it is possible for one defendant to seek summary judgment (or a Rule 21 determination) prior to certification when other defendants remain in the class action. However, in such cases, the court should take particular care to ensure that factors of judicial efficiency and cost support such an approach, as bifurcation of the process is more likely to lead to increased costs and delay and be contrary to judicial efficiency.

[37] In KRP, the narrow issue of whether the municipal corporation had a duty in law to remove protesters or open the street required little or no evidence. It was effectively a legal question akin to a Rule 21 motion, which enabled the court to promptly and efficiently decide whether the municipal corporation could be liable, avoiding the need for participation by that defendant in a costly certification motion.

[38] In TDL, the liability of the moving parties was based only on the pleadings, so no evidence would have been permitted.

[39] In the present matter, each of Aviva General’s submissions requires a review of the evidence which would otherwise be addressed at trial, causing significant expense, delay, and an inefficient method to conduct the proceedings.

[40] Consequently, the fact that the Summary Judgment Motion would not dispose of the entire proceeding remains a relevant factor, since a “merits-based” summary judgment is particularly inefficient when a certification issue would remain with respect to the remaining RBC IA defendant.

b) The need for a full evidentiary record does not support precertification summary judgment as an efficient method to conduct the proceedings

[41] The three issues proposed to be determined are not narrow, unlike in the cases relied upon by Aviva General. While Aviva General submits that the common employer (including partnership and joint venture), limitation period, and entitlement issues can be addressed on a “narrow” record, there is no evidence to support such a finding.

[42] Aviva General does not set out the basis why such a record would be narrow. The limited material before the court does not support such a position.

1. The common employer (or partnership or joint venture) issue

[43] Based on the pleading and affidavit evidence, Singh was a commissioned Advisor as of May 2018, when he was employed by RBC IA. Singh alleges that Aviva General was either a common employer, partner, or joint venturer, along with RBC IA, during this period.

[44] Whether Aviva General and RBC IA are common employers, partners, or joint venturers, requires more than a narrow finding as to whether there is common ownership.

[45] Section 4 of the Employment Standards Act, 2000, S.O. 2000, c. 41 (the “ESA”), provides that where “associated or related activities or businesses are or were carried on by or through an employer and one or more other persons”, the “employer and the other person or persons … shall all be treated as one employer for the purposes of this Act.” Common ownership is not a requirement for common employer status, let alone for a finding of partnership or joint venture.

[46] Further, until December 31, 2017, the ESA included section 4(1)(b), which limited the application of s. 4 to situations where “the intent or effect of their doing so is or has been to directly or indirectly defeat the intent and purpose of this Act.” The elimination of section 4(1)(b) is consistent with Singh’s position that the legislature intended to broaden the scope of the common employer doctrine in Ontario.

[47] Common employer status has been found in a variety of circumstances, even where the common employers were distinct corporate entities under separate ownership. For example, in White Spot Ltd. v. CAW-Canada, Local 300, 1999 BCCA 93, 64 B.C.L.R. (3d) 290, the court denied an appeal from the lower court decision upholding the declaration of the Labour Relations Board that a franchisor and franchisee were common employers despite distinct ownership.

[48] In Sullivan v. Four Seasons Hotels Limited, 2013 ONSC 4622, 116 O.R. (3d) 365, the court characterized the plaintiff’s move from the Toronto hotel franchisee to the Nevis hotel franchisee as a “transfer” and reviewed the participation of the Toronto franchise in the Nevis operations, as factors relevant to the issue of a common employer (at paras. 35-37).

[49] In Talbot v. Nourse, 2018 ONSC 1061, 81 B.L.R. (5th) 145, the court reviewed the evidence as to whether there was “a sufficient degree of relationship to warrant application of the common employer theory” (at para. 76), and concluded that the decision as to common employer based on “common control” would not have changed even if the corporations were under separate ownership (at paras. 84-85).

[50] The determination of the common employer (or partnership or joint venture) issue will require a factual inquiry into the question of whether the activities of Aviva General and RBC IA were associated and related. The proposed claim pleads such a relationship, relying on examples such as Aviva’s role in investigations and discipline of RBC IA advisors.

[51] Aviva General’s draft notice of motion confirms the need to review factors beyond “objective” ownership factors. Despite Aviva General’s reliance on factors such as separate ownership, separate regulation, commercial contractual arrangements, and the alleged lack of ability to control, discipline, or instruct Singh (see paragraphs 18 to 21(e) of the notice of motion), Aviva General also submits that “Aviva General Insurance and RBC IA do not function as integrated commercial enterprises” (see paragraph 21(f) of the notice of motion), and “RBC IA was not at any time ‘controlled’ by Aviva Canada” (see paragraph 22 of the notice of motion).

[52] Consequently, there is no basis to find that a narrow evidentiary record would be sufficient to address the common employer (or partnership or joint venture) issue. It is likely that affidavits would be required from senior representatives at both defendants to address the structure, function, and agreements between the parties both on paper and in practice. If suitable representatives do not swear affidavits, Singh might have to compel attendance of such individuals. The integration or degree of control between Aviva General and RBC IA cannot be determined without a full review of the merits.

[53] Given the scope of evidence that could be relevant to a common employer (or partnership or joint venture) determination, Singh takes the position that any summary judgment determination on that issue is not appropriate, and submits that a full evidentiary record at trial would be necessary to address any factual inconsistencies or credibility issues. Singh also takes the position that there are concerns about partial summary judgment.

[54] Consequently, in addition to the cost and expense of imposing a full review of the common employer/partnership/joint venture issue through the summary judgment process and the consequent delays of the certification motion, there is an additional risk that the summary judgment sought might not be granted for reasons unrelated to the merits, but rather due to the partial nature of the summary judgment process, or the need for credibility findings or a more expansive record. The result of such a conclusion would be a return to the certification path after delay and costs with the parties being no further ahead.

[55] Such a result was much less likely in the cases relied upon by Aviva General, as the narrow issues in those cases were more easily resolved through the summary judgment process.

[56] Singh further notes that he would seek reciprocal summary judgment that Aviva General and RBC IA were common employers, partners, or joint venturers, if the Summary Judgment Motion was to be scheduled before the certification motion. I do not address the merits of that submission at this stage. However, a resolution on the merits based on a full review of the evidence is not consistent with the limited case law which has permitted a summary judgment motion to be heard before certification when there is a narrow factual or legal issue before the court.

[57] Finally, even if Aviva General and RBC IA were not common employers, partners, or joint venturers, Aviva General would still remain a party to the action for alleged employment standards violations before the Acquisition (subject to Aviva’s submissions on the limitation period and commissions related to the pre-Acquisition period, which I address below). Aviva General acknowledges in its submissions that RBC General is the “predecessor” to Aviva General.

[58] Consequently, even if Aviva General succeeded on the common employer submission, it could not successfully obtain summary judgment for pre-Acquisition claims related to RBC General unless it was also successful on the limitation period and commission submissions. If not, it would remain a party to the action, and only obtain partial summary judgment.

[59] For the above reasons, it is not an efficient use of judicial resources, time, or cost to have the parties engage in a full evidentiary review of the common employer (or partner or joint venture) issue by summary judgment before the certification hearing, let alone create the risk of interlocutory appeals and delays affecting certification resulting from that decision.

2. The limitation period issue

[60] The limitation period issue in the present case is based, in part, on the common employer submission, and, as such, would require the same complex evidentiary record for its resolution.

[61] If Aviva General is found to be a common employer, partner, or joint venturer, then Singh can assert that the action is not statute-barred against Aviva General for Singh’s employment as a commissioned Advisor at RBC IA, which he alleges began in May 2018. Consequently, I rely on my analysis above and find that it is not efficient to manage the proceeding by scheduling the Summary Judgment Motion before the certification motion.

[62] If Aviva General is not found to be a common employer, it would still remain a defendant for alleged employment standards violations during the pre-Acquisition period since RBC General is the predecessor of Aviva General.

[63] Aviva General submits that claims by commissioned Advisors at RBC General are statute-barred since they were brought more than two years after the Acquisition. However, additional evidence could then be led to address discoverability issues.

[64] By way of example, it is Singh’s position that he became aware of his claim after speaking to his legal counsel. In addition, Singh advises that he will submit that the debts were hidden from him by the defendants.

[65] The parties did not ask me to decide the limitations issue as part of the present sequencing request, nor would such an approach be appropriate. However, the need for a full evidentiary record to address the common employer and discoverability issues supports Singh’s position that the Summary Judgment Motion should not be scheduled before the certification motion. There is no narrow limitation period issue that can be addressed prior to certification without an extensive evidentiary record.

3. The commission issue

[66] As I discuss above, if Aviva General is found to be a common employer, partner, or joint venturer with RBC IA, the determination of whether Singh earned commissions while at RBC General would not remove Aviva General from the class action. If Aviva General is not found to be a common employer, partner, or joint venturer, it could remain liable for the pre-Acquisition period since RBC General is a predecessor. Consequently, the full record for the common employer/partnership/joint venture issue would still be required for the Summary Judgment Motion. The commission issue does not therefore favour scheduling it before certification.

[67] Also, if any other Advisors earned commissions while at RBC General, that person could replace or join Singh, if necessary, as representative plaintiff.

[68] Whether Singh can still be a representative plaintiff for RBC General commissioned Advisors if he earned no commissions at RBC General, or whether another representative plaintiff can be put forward, are best addressed on the certification motion under the requirement to establish a proper representative plaintiff, and not through a summary judgment motion which would lead to the merits-based approach set out above.

c) Partial summary judgment does not favour precertification scheduling

[69] The concerns expressed by the Court of Appeal against partial summary judgment (and in Mason, particularly related to one defendant seeking summary judgment when other defendants will be left in the action), further support the concerns of delay, expense, and lack of judicial efficiency. It is an additional factor against scheduling the Summary Judgment Motion before certification.

d) The Summary Judgment Motion will not promote settlement

[70] I do not agree that the outcome of the motion will promote settlement. Given the “merits-based” approach to summary judgment relied upon by Aviva General, the proposed motion effectively seeks determination of all issues raised against it arising out of its alleged role as a common employer. Consequently, any decision is almost certain to be appealed, with no decision as to whether the action should proceed as a class action, which militates against settlement.

[71] In my view, scheduling and hearing the certification motion without a precertification summary judgment motion would best promote settlement, as the parties will be better placed to consider the strength of their positions and attempt to resolve the issues based on the certification decision.

e) Factors of delay, cost, economy, and judicial efficiency support Singh’s position

[72] For the reasons I review above, there is a significant risk of delay if a “merits-based” summary judgment is scheduled before certification. The costs of such a process will be high, as the summary judgment motion will likely result in lengthy cross-examinations, voluminous affidavits, and exhibits relating to the common employer issue, and possibly further interlocutory issues such as examinations under Rule 39.03 and production issues.

[73] Consequently, a fair and efficient determination of the proceeding is not advanced by scheduling the Summary Judgment Motion before the certification motion.

f) There is no evidence of negative impact or the strength of Aviva General’s position

[74] In Halliday, there was evidence before the court of a negative impact on the defendant. The plaintiff alleged “an ‘unlawful pricing scheme’ involving routine discrimination against existing and potential customers by offering a discounted rate exclusively to individuals who communicated with Shaw in either Mandarin and/or Cantonese languages”. Jackson J. noted that “[b]ased on the record before me, it appears this action has garnered a fair bit of media attention … which ... has and will continue to create negative public sentiment towards Shaw until the action is resolved on its merits”. Jackson J. further noted that the claim “connotes a degree of iniquitousness not associated with a breach of contract or negligence” (at paras. 2, 6, and 29).

[75] There is no such evidence in the present case. The Amended Statement of Claim raises no issue of bad faith or improper conduct, and seeks no aggravated, exemplary or punitive damages. The only issue is whether employment standards were violated by the alleged failure to make the proper payments based on commissions earned.

[76] Aviva General sought to rely on the alleged “negative effect” of another action brought by Singh against it and RBC IA (Court File No. 19-619149) seeking damages for wrongful dismissal, including damages under the Human Rights Code, R.S.O. 1990, c. H. 19 for alleged discrimination. However, that claim cannot serve as the basis for the argument that the class action, which seeks only to address alleged breaches of the vacation and statutory holiday provisions of the ESA, has caused a negative impact.

[77] Also, in Shaw, Jackson J. held that there was “some evidence” to suggest, on a “preliminary basis”, that the issues raised by Shaw would succeed on summary judgment (at para. 19). There is no such evidence before the court in the present case. By way of example, it is not possible for the court to assess on the present record the degree of integration or control between Aviva General and RBC IA.

[78] While Aviva General relies on statements in Singh’s certification motion affidavit that he was employed by RBC IA, such statements are not inconsistent with a position that Aviva General was a common employer, partner, or joint venturer – a position that is consistent with Singh’s evidence of Aviva General’s involvement in conduct issues arising from RBC IA’s advisors.

Order and costs

[79] For the above reasons, I direct that the Summary Judgment Motion not proceed prior to the certification motion.

[80] Both parties incurred similar partial indemnity costs, with Singh seeking $18,903.19 and Aviva General seeking $16,235.41. No costs were sought by or against RBC IA.

[81] Aviva General submits that costs should be payable “in the cause”, i.e. left to the discretion of the court hearing the certification motion. Singh submits that costs should be payable forthwith in its favour.

[82] For the reasons that follow, I order that costs be fixed and payable to Singh “in any event” of the result on the certification motion, but not forthwith.

[83] The matter before the court was a scheduling issue, which required additional preparation by counsel to provide the court with the necessary case law and written submissions.

[84] There were only a few cases before the court directly addressing the issue of sequencing (instead of indirectly when a motion for summary judgment was decided either before or after the certification motion without discussion of the sequencing issue). In the sequencing cases relied upon by the parties, the court either generally reserved costs until the summary judgment motion (when permitting the precertification motion as in Segnitz), or did not address costs (see Attis, Baxter v. Canada (Attorney General), [2005] O.T.C. 391 (S.C.), Cannon, McKenna, and TDL). In Austin v. Bell Canada, 2018 ONSC 4018, 19 C.P.C. (8th) 292, the parties agreed that there would be no costs in relation to the scheduling issue (at para. 50).

[85] Given the extensive submissions before the court, it is not just to award costs to Aviva General in the event it is successful on the certification motion. Singh is entitled to costs, but those costs are part of the case management process leading to the certification hearing. For that reason, in the present hearing, the costs related to scheduling matters are best reserved to be paid to Singh as costs of the certification motion in any event of the result.

[86] There were significant costs associated with preparation of the factums and briefs of authorities for the sequencing directions, and Singh was successful. The hearing raised an important procedural issue for the parties. Costs sought reflect the amount an unsuccessful party would expect to pay. For those reason, I order that costs be payable to Singh in the amount of $18,903.19 in any event of the certification motion, such that the costs will be paid as part of that motion.

GLUSTEIN J. Date: 20200120