COURT FILE NO.: CV-19-627581
DATE: 2020/02/03
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
CLIVE BARRETT
Plaintiff
- and -
390996 ONTARIO LIMITED o/a WOODCRAFT
Defendant
Ryan Kornblum for the Plaintiffs
HEARD: In writing
PERELL, J.
REASONS FOR DECISION
[1] Pursuant to the Class Proceedings Act, 1992,[^1] Clive Barrett brought a proposed class action against 390996 Ontario Limited, which carried on business as Woodcraft. He now brings a motion to withdraw the action on consent and without costs.
[2] Mr. Barrett was employed by Woodcraft for approximately 18 years until he was dismissed on April 13, 2018. He commenced a wrongful dismissal action and he also commenced a proposed class action for Woodcraft’s alleged failure to pay overtime.
[3] Mr. Barrett’s fellow employees were not aware that he had commenced a class action on their behalf.
[4] Mr. Barrett settled his personal wrongful dismissal action. In the course of settling the action, Mr. Barrett became satisfied that save possibly for a very few fellow-employees, Woodcraft had fulfilled its obligations to pay for overtime. There was no viable class action.
[5] With Woodcraft’s consent, Mr. Barrett now wishes to discontinue the proposed class action without costs.
[6] Section 29 of the Class Proceedings Act, 1992 requires court approval for the discontinuance, abandonment, or settlement of a class action. Section 29 states:
Discontinuance, abandonment and settlement
- (1) A proceeding commenced under this Act and a proceeding certified as a class proceeding under this Act may be discontinued or abandoned only with the approval of the court, on such terms as the court considers appropriate.
Settlement without court approval not binding
(2) A settlement of a class proceeding is not binding unless approved by the court.
Effect of settlement
(3) A settlement of a class proceeding that is approved by the court binds all class members.
Notice: dismissal, discontinuance, abandonment or settlement
(4) In dismissing a proceeding for delay or in approving a discontinuance, abandonment or settlement, the court shall consider whether notice should be given under section 19 and whether any notice should include,
(a) an account of the conduct of the proceeding;
(b) a statement of the result of the proceeding; and
(c) a description of any plan for distributing settlement funds.
[7] A motion for discontinuance or abandonment should be carefully scrutinized, and the court should consider, among other things: whether the proceeding was commenced for an improper purpose, whether, if necessary, there is a viable replacement party so that putative class members are not prejudiced, or whether the defendant will be prejudiced.[^2]
[8] In the immediate case, there is no prospect of the putative Class Members, who are oblivious of the action even having been started, being prejudiced. There is no sense in which any putative Class Members can be said to have been relying upon this action I, therefore, grant Mr. Mr. Barrett’s motion.
[9] Order accordingly.
Perell, J.
Released: February 3, 2020
COURT FILE NO.: CV-19-627581
DATE: 2020/02/03
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Clive Barrett
Plaintiff
- and -
390996 ONTARIO LIMITED o/a WOODCRAFT
Defendant
REASONS FOR DECISION
PERELL J.
Released: February 3, 2020
[^1]: S.O. 1992, c. 6. [^2]: Logan v. Canada (Minister of Health), [2003] O.J. No. 418 (S.C.J.), aff’d (2004), 2004 CanLII 184 (ON CA), 71 O.R. (3d) 451 (C.A.).