COURT FILE NO.: CV-20-00639259-00CP
DATE: 20210625
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
NICOLE CURTIS, AMR GALAL and KATRINA BUHLMAN
Plaintiffs
- and –
MEDCAN HEALTH MANAGEMENT INC, ANDREW CARRAGHER, SHAUN C. FRANCIS, EDWIN F. HAWKEN, URBAN JOSEPH, BEAU LASKEY, THOMAS P. REEVES, OWEN ROGERS, CRAIG SHEPHERD
Defendants
Proceedings under the Class Proceedings Act, 1992
Andrew Monkhouse, Alexandra Monkhouse and Enbal Singer for the Plaintiffs
Jeffrey E. Goodman, Elisha C. Jamieson-Davies and Eleanor A. Vaughan for the Defendants
HEARD: May 18, 2021
PERELL, J.
REASONS FOR DECISION
A. Introduction and Overview.. 2
B. Procedural Background. 3
C. The Fresh as Amended Statement of Claim.. 5
D. Statutory Background. 7
Employment Standards Act, 2000. 7
Ontario Business Corporations Act 9
Limitations Act, 2002. 9
E. Evidentiary Background. 11
F. Facts. 11
The Parties. 11
Medcan and the Payment of Vacation Pay and Public Holiday Pay. 12
G. Certification: General Principles. 13
H. The Cause of Action Criterion. 15
General Principles. 15
Analysis: Cause of Action Criterion. 16
I. Identifiable Class Criterion. 16
General Principles. 16
Analysis: Identifiable Class Criterion. 17
The Class Definition and the Limitations Act, 2002. 18
J. Common Issues Criterion. 19
General Principles. 19
Analysis: The Common Issues. 20
K. Preferable Procedure Criterion. 21
General Principles. 21
Analysis: Preferable Procedure. 22
L. Representative Plaintiff Criterion and the Defendants’ Summary Judgment Motion. 24
General Principles. 24
Analysis: Representative Plaintiff Criterion. 24
M. Conclusion. 25
A. Introduction and Overview
[1] In this proposed class action under the Class Proceedings Act, 1992,[^1] the Plaintiffs Nicole Curtis, Amr Galal, and Katrina Buhlman sue the Defendants Medcan Health Management Inc., Andrew Carragher, Shaun C. Francis, Edwin F. Hawken, Urban Joseph, Beau Laskey, Thomas P. Reeves, Owen Rogers, and Craig Shepherd.
[2] The Defendants Carragher, Francis, Hawken, Joseph, Laskey, Reeves, Rogers and Shepherd are Medcan’s directors.
[3] In 2019, a Medcan employee who received a base salary plus commissions and bonuses told Medcan that it had not paid him the “vacation pay” and “public holiday pay” that Medcan was required to pay under the Employment Standards Act, 2000.[^2]
[4] Medcan investigated. It learned that for over fifteen years, it had been calculating vacation pay and public holiday pay based only on the base salary. In 2020, to remedy its error, Medcan paid its current and former employees the unpaid vacation pay and public holiday pay - for the years 2018 and 2019. Relying on the two-year limitation period of the Limitations Act, 2002,[^3] Medcan did not pay for the period before 2018.
[5] In 2020, Ms. Curtis, Mr. Galal, and Ms. Buhlman, who are former employees of Medcan, brought a proposed class action against Medcan and its directors. The Plaintiffs allege that they and the proposed Class Members – who are comprised of Medcan’s variable pay employees from April 2005 - are owed public holiday and vacation pay from April 2005.
[6] Without conceding the point, the Plaintiffs are not pursuing claims for before April 2005 because these claims may be statute-barred by the absolute limitation period of the Limitations Act, 2002.
[7] The Plaintiffs move to have their action certified as a class action. The Defendants resist certification, and the Defendants bring a cross-motion for summary judgment to have Ms. Curtis’s and Mr. Galal’s individual actions dismissed as statute-barred or because the individual Plaintiffs signed releases when they ended their employment with Medcan.[^4]
[8] For the reasons that follow: (a) I dismiss the summary judgment motion because the matter of the running of limitation periods and the matter of releases are genuine issues requiring a trial; (b) I dismiss the certification motion because the Plaintiffs have not satisfied the preferable procedure criterion.
B. Procedural Background
[9] On April 7, 2020, Ms. Curtis and Mr. Galal commenced their proposed class action.
[10] The lawyers of record and proposed Class Counsel are Monkhouse Law.
[11] On September 25, 2020, the Defendants delivered their Statement of Defence. They plead that the Plaintiffs’ claims are statute-barred under the Limitations Act, 2002 and by full and final releases.
[12] On October 21, 2020, Ms. Curtis and Mr. Galal delivered their Reply.
[13] Ms. Curtis and Mr. Galal propose to add Ms. Buhlman as a Plaintiff, and they have prepared a Fresh as Amended Statement of Claim, which I shall treat as the operative Statement of Claim for the purposes of this certification motion and for the purposes of the Defendants’ cross-motion.
[14] In a variation of the originally proposed class definition, the Plaintiffs propose the following class definition:
All variable compensation employees of Medcan Health Management Inc. who worked from April 7, 2005 until the date when the notice is delivered to the class.
[15] It shall be important for the argument below to note that the originally proposed class definition extended to employees who worked for Medcan before 2005. The originally proposed class definition was:
All variable compensation employees of MEDCAN HEALTH MANAGEMENT INC. from the earliest of,
a. the start date of employment of the longest-serving current Variable Compensation Employee; or
b. the start date of any Variable Compensation Employee who was terminated or resigned within the last two years since this claim was issued;
until the date when the notice of class action is sent out to class members with the opt-out forms.
[16] The Plaintiffs propose the following common issues:
- What are the terms (express or implied or otherwise) of the Class Members’ contracts of employment with the Defendants regarding:
a. Regular and overtime hours of work;
b. Recording of the hours worked by the class members;
c. Payment of hours worked by class members; and
d. Lieu time as purported compensation for overtime hours worked.
- Whether the Defendants breached any of the contractual terms and, if so, how. Without limiting generality of the foregoing, whether the Class Members are owed damages from the Defendants for:
a. Vacation pay; and
b. Public holiday pay.
- Whether the Defendants have a duty (in contract 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 the Defendants breached that duty.
- Whether the Defendants have a duty (in contract or otherwise) to implement and maintain an effective and reasonable system or procedure which ensured that the duties in Common Issues 2 were satisfied for all Class Members.
a. If such a duty exists, whether the Defendants breached that duty.
If the answer to Common Issue 2 is yes:
- If liability is established, are aggregate damages available?
If the answer to Common Issue 5 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?
[17] On June 26, 2020, the Plaintiffs delivered their motion for certification.
[18] On December 15, 2020, the Defendants delivered their summary judgment motion.
[19] I shall say little more about the summary judgment motion because as already noted there are genuine issues for trial and it would be inappropriate to grant a summary judgment based on the current motion record.
C. The Fresh as Amended Statement of Claim
[20] The Plaintiffs assert that their Fresh as Amended Statement of Claim advances three causes of action: (a) breach of employment contract; (b) several violations of the Employment Standards Act, 2000; and (c) unjust enrichment.
[21] For present purposes, the relevant portions of the Plaintiffs’ Fresh as Amended Statement of Claim with respect to the alleged contravention of the Employment Standards Act, 2000 are paragraphs 13-17, and 20-30, which state:
EMPLOYMENT STANDARDS ENTITLEMENTS
Under the Employment Standards Act, 2000 (“ESA”) employees must be paid additional public holiday pay above and beyond their regular pay as per sections 24-32 (“Public Holiday Pay”). For the vast majority of the class period, Public Holiday Pay was calculated per s. 24(1) of the ESA, for employees with variable compensation this pay is to be an average of what they earned over the preceding 20 days.
Under the ESA employees must be paid additional vacation pay above and beyond their regular pay, as per s. 35.2 (“Vacation Pay”). This pay must be at least 4 per cent of the wages earned by the employee for those with less than five years seniority and 6 per cent for those with greater than five years seniority.
All Vacation Pay that has previously accrued remains owing to an employee, as per s. 38 of the ESA.
When an employee’s employment ends, “the employer shall pay any wages to which the employee is entitled,” as per s. 11(5) of the ESA.
In the ESA, wages are defined to include variable compensation (including commission) income.
As per s. 40(1) and (2) of the ESA, the Vacation Pay that ought to have been paid has a trust over it and creates a lien upon the assets of the employer in the amount of the monies that ought to have been paid.
COMPENSATION POLICY EXCLUDED VACATION AND PUBLIC HOLIDAY PAY ON VARIABLE COMPENSATION
Ms. Curtis, Mr. Galal, Ms. Buhlman, and other Variable Compensation Employees working for the Defendant received Vacation and Public Holiday Pay solely on their base salary, if at all, and not on their total compensation, as required by the ESA.
The pay stubs of Ms. Curtis and Mr. Galal reported no Vacation Pay at all. The paystubs of Ms. Buhlman report some Vacation Pay, but it is almost always calculated as a percentage of her base pay.
The Defendant failed in its obligations to correctly calculate pay. It failed in its obligations to be transparent and inform employees about the calculation of their pay.
The compensation policies applicable to Ms. Curtis, Mr. Galal, Ms. Buhlman, and other variable compensation employees violated the ESA. They did not provide for Vacation and Statutory Holiday Pay correctly calculated based on their total wages, inclusive of variable compensation. Ms. Curtis, Mr. Galal, and Ms. Buhlman seek to be Representative Plaintiffs for all persons denied such compensation while working for the Defendant.
PARTIAL PAYMENT OF RETROACTIVE PAY ALREADY ADMITTED AND DISCOVERABILITY
In December 2019, the Defendant paid out some variable commissioned persons for vacation and public holiday pay that had been due and owing for the previous two years.
In March 2020, Mr. Galal received a notification from the Defendant that some of his Public Holiday Pay entitlements had been miscalculated for 2018 and 2019 and that the Defendant will pay him $4,903.84 as a result of the error.
In March 2020, Ms. Buhlman also received a notification from the Defendant that some of her Public Holiday Pay entitlements had been miscalculated for 2018 and 2019 and that the Defendant will pay her $1,683.77 as a result of the error.
The Plaintiffs state by the 2019 and 2020 communications and payments, the Defendant admitted that its payroll system has not been adequately compensating the Variable Compensation Employees throughout their employment.
Vacation pay and Public Holiday Pay ought to be paid out for the full tenure of the Plaintiffs and of all Variable Compensation Employees with the Defendant for the following non-exclusive reasons:
a. The deprivation of these benefits was only discoverable to the Plaintiffs, and the other Variable Compensation Employees, once they were made aware of the pay discrepancy by the Defendant at the very earliest in December 2019;
b. The benefits under the ESA roll over and thus the two-year limitation period under the Limitations Act, 2002, SO 2002, c24, Sched B properly runs for all benefits owing from 7 days after employment ends as per s.11(5)(a) of the ESA.
- The Plaintiffs further state that in so far as the calculations of what has been paid out to date appear in some circumstances to be incorrect that any Variable Compensation Employee whose payments are not correct ought to be compensated for the difference between the amount paid and the amount owed under the ESA.
[22] The Plaintiffs allege that Medcan’s directors are liable for unpaid wages and for vacation pay accrued under the Employment Standards Act, 2000 pursuant to s. 131 of Ontario’s Business Corporations Act.[^5]
D. Statutory Background
1. Employment Standards Act, 2000
[23] For present purposes, the relevant provisions of the Employment Standards Act, 2000 are sections 5(1), 24 (1), 35.2, 38, 40, 96, 97, 98, and 111 which state:
- (1) Subject to subsection (2), no employer or agent of an employer and no employee or agent of an employee shall contract out of or waive an employment standard and any such contracting out or waiver is void.
Public holiday pay
- (1) An employee’s public holiday pay for a given public holiday shall be equal to,
(a) the total amount of regular wages earned and vacation pay payable to the employee in the four work weeks before the work week in which the public holiday occurred, divided by 20; or
(b) if some other manner of calculation is prescribed, the amount determined using that manner of calculation.
Vacation pay
35.2 An employer shall pay vacation pay to an employee who is entitled to vacation under section 33 or 34 equal to at least 4 per cent of the wages, excluding vacation pay, that the employee earned during the period for which the vacation is given.
38 If an employee’s employment ends at a time when vacation pay has accrued with respect to the employee, the employer shall pay the vacation pay that has accrued to the employee in accordance with subsection 11 (5).
Vacation pay in trust
40 (1) Every employer shall be deemed to hold vacation pay accruing due to an employee in trust for the employee whether or not the employer has kept the amount for it separate and apart.
Same
(2) An amount equal to vacation pay becomes a lien and charge upon the assets of the employer that in the ordinary course of business would be entered in books of account, even if it is not entered in the books of account.
Complaints
96 (1) A person alleging that this Act has been or is being contravened may file a complaint with the Ministry in a written or electronic form approved by the Director.
Limitation
(3) A complaint regarding a contravention that occurred more than two years before the day on which the complaint was filed shall be deemed not to have been filed.
When civil proceeding not permitted
97 (1) An employee who files a complaint under this Act with respect to an alleged failure to pay wages or comply with Part XIII (Benefit Plans) may not commence a civil proceeding with respect to the same matter.
Same, wrongful dismissal
Amount in excess of order
(3) Subsections (1) and (2) apply even if,
(a) the amount alleged to be owing to the employee is greater than the amount for which an order can be issued under this Act; or
(b) in the civil proceeding, the employee is claiming only that part of the amount alleged to be owing that is in excess of the amount for which an order can be issued under this Act.
When complaint not permitted
98 (1) An employee who commences a civil proceeding with respect to an alleged failure to pay wages or to comply with Part XIII (Benefit Plans) may not file a complaint with respect to the same matter or have such a complaint investigated.
Time limit on recovery, employee’s complaint
111 (1) If an employee files a complaint alleging a contravention of this Act or the regulations, the employment standards officer investigating the complaint may not issue an order for wages that became due to the employee under the provision that was the subject of the complaint or any other provision of this Act or the regulations if the wages became due more than two years before the complaint was filed.
Same, another employee’s complaint
(2) If, in the course of investigating a complaint, an employment standards officer finds that an employer has contravened this Act or the regulations with respect to an employee who did not file a complaint, the officer may not issue an order for wages that became due to that employee as a result of that contravention if the wages became due more than two years before the complaint was filed.
2. Ontario Business Corporations Act
[24] As already mentioned above, the Plaintiffs advance a claim pursuant to s. 131 of the Ontario Business Corporations Act, against the individual Defendants, who are Medcan’s directors. Section 131 states:
Directors’ liability to employees for wages
131 (1) The directors of a corporation are jointly and severally liable to the employees of the corporation for all debts not exceeding six months’ wages that become payable while they are directors for services performed for the corporation and for the vacation pay accrued while they are directors for not more than twelve months under the Employment Standards Act, and the regulations thereunder, or under any collective agreement made by the corporation.
Limitation of liability
(2) A director is liable under subsection (1) only if,
(a) the corporation is sued in the action against the director and execution against the corporation is returned unsatisfied in whole or in part; or
(b) before or after the action is commenced, the corporation goes into liquidation, is ordered to be wound up or makes an authorized assignment under the Bankruptcy and Insolvency Act (Canada), or a receiving order under that Act is made against it, and, in any such case, the claim for the debt has been proved.
Idem
(3) Where execution referred to in clause (2) (b) has issued, the amount recoverable from a director is the amount remaining unsatisfied after execution.
Rights of director who pays debt
(4) Where a director pays a debt under subsection (1) that is proved in liquidation and dissolution or bankruptcy proceedings, the director is entitled to any preference that the employee would have been entitled to, and where a judgment has been obtained the director is entitled to an assignment of the judgment.
Idem
(5) A director who has satisfied a claim under this section is entitled to contribution from the other directors who were liable for the claim.
3. Limitations Act, 2002
[25] For present purposes, the relevant provisions of the Limitations Act, 2002 are sections 4, 5, and 15, which state:
Basic limitation period
4 Unless this Act provides otherwise, a proceeding shall not be commenced in respect of a claim after the second anniversary of the day on which the claim was discovered.
Discovery
5 (1) A claim is discovered on the earlier of,
(a) the day on which the person with the claim first knew,
(i) that the injury, loss or damage had occurred,
(ii) that the injury, loss or damage was caused by or contributed to by an act or omission,
(iii) that the act or omission was that of the person against whom the claim is made, and
(iv) that, having regard to the nature of the injury, loss or damage, a proceeding would be an appropriate means to seek to remedy it; and
(b) the day on which a reasonable person with the abilities and in the circumstances of the person with the claim first ought to have known of the matters referred to in clause (a).
Presumption
(2) A person with a claim shall be presumed to have known of the matters referred to in clause (1) (a) on the day the act or omission on which the claim is based took place, unless the contrary is proved.
Ultimate limitation periods
15 (1) Even if the limitation period established by any other section of this Act in respect of a claim has not expired, no proceeding shall be commenced in respect of the claim after the expiry of a limitation period established by this section.
General
(2) No proceeding shall be commenced in respect of any claim after the 15th anniversary of the day on which the act or omission on which the claim is based took place.
Period not to run
(4) The limitation period established by subsection (2) does not run during any time in which,
(a) the person with the claim,
(i) is incapable of commencing a proceeding in respect of the claim because of his or her physical, mental or psychological condition, and
(ii) is not represented by a litigation guardian in relation to the claim;
(b) the person with the claim is a minor and is not represented by a litigation guardian in relation to the claim; or
(c) the person against whom the claim is made,
(i) wilfully conceals from the person with the claim the fact that injury, loss or damage has occurred, that it was caused by or contributed to by an act or omission or that the act or omission was that of the person against whom the claim is made, or
(ii) wilfully misleads the person with the claim as to the appropriateness of a proceeding as a means of remedying the injury, loss or damage.
Burden
(5) The burden of proving that subsection (4) applies is on the person with the claim.
Day of occurrence
(6) For the purposes of this section, the day an act or omission on which a claim is based takes place is,
(a) in the case of a continuous act or omission, the day on which the act or omission ceases;
(b) in the case of a series of acts or omissions in respect of the same obligation, the day on which the last act or omission in the series occurs;
(c) in the case of an act or omission in respect of a demand obligation, the first day on which there is a failure to perform the obligation, once a demand for the performance is made.
E. Evidentiary Background
[26] The Plaintiffs supported their certification motion with the following evidence:
• the affidavit of Katrina Buhlman dated November 16, 2020.
• the affidavit of Nicole Curtis dated June 26, 2020.
• the affidavit of Amr Galal dated June 25, 2020.
• the affidavit of Anessa Garcia dated April 15, 2021. Ms. Garcia is a paralegal assistant at Monkman Law.
[27] The Defendants resisted the certification motion and supported their motion for summary judgment with the following evidence:
• the affidavit of Bronwen Evans dated May 5, 2021. Ms. Evans is the Chief Growth and People Officer at Medcan. Ms. Evans was cross-examined.
• the affidavits of Andrew Rinzema dated December 15, 2020 and January 28, 2021. Mr. Rinzema is the former Chief Financial Officer of Medcan. He joined the company in 2004, and he is currently Board Secretary and Officer.
F. Facts
1. The Parties
[28] Medcan provides medical, therapeutic, and personal health services including personal fitness training to consumers. It also offers these services through employee benefit plans.
[29] Messrs. Carragher, Francis, Hawken, Joseph, Laskey, Reeves, Rogers and Shepherd are Medcan’s directors.
[30] Medcan employed 743 people between April 7, 2018 and April 7, 2020. It currently employees 411 employees, many of whom earn a base salary plus commissions and bonuses. Its employees include registered nurses, fitness trainers, cooks, salespersons, and managers.
[31] Ms. Curtis was employed by Medcan from October 2011 to May 2016, first as a Client Service Specialist and then as a Corporate Sales Executive.
[32] Mr. Galal held various positions at Medcan from June 2008 to May 2019, first as an Inside Sales Agent and finally as Director, Sales and Partnerships.
[33] Ms. Buhlman was employed by Medcan from December 2009 to September 2018, as an Inside Sales Agent, a Sales Director, and as an Account Manager.
[34] Throughout their employment Ms. Curtis, Mr. Galal, and Ms. Buhlman earned their incomes mainly from variable compensation, which was called commissions. Each received a base salary, but the bulk of their remuneration came from commission payments. It is alleged that Ms. Curtis, Mr. Galal, and Ms. Buhlman did not receive the vacation pay and the public holiday pay that they were entitled to pursuant to the Employment Standards Act, 2000.
2. Medcan and the Payment of Vacation Pay and Public Holiday Pay
[35] The Employment Standards Act, 2000, which has been amended from time to time, sets standards for vacation pay and public holiday pay. Since 2003, Medcan has paid its employees in a variety of different ways, depending on their position and upon promotions or changes to other positions. Some employees are paid a base salary. Some employees are paid a base salary plus bonuses and commissions. Some employees are paid per diem for services rendered.
[36] Since 2003, Medcan has paid vacation pay and public holiday pay in a variety of ways; visualize: (a) some employees were paid pay by a continuation of their salary during their absence from work; and (b) some employees were paid a proportionate advance payment on each wage payment, which was a percentage of the employee’s wages (i.e., either 4% or 6%, depending on the requirements for that individual).
[37] Some employees, for example, Fitness Trainers who were paid per diem received vacation pay and statutory holiday pay on the per diem amount. Since these employees received no commission or bonuses, Medcan submits that they could not have a claim for unpaid vacation and public holiday pay.
[38] There is some basis in fact for concluding that in various ways, over the years Medcan was not compliant with the Employment Standards Act, 2000 in paying vacation pay and public holiday pay. This is admitted by Medcan. The admitted error is that for many employees, Medcan calculated the vacation pay and public holiday pay based on the base salary when the calculation should have been based on the employee’s total wages, including commissions and bonuses.
[39] The miscalculations perhaps began in 2003. They continued until June 2019, when a Medcan employee objected to how his vacation pay and public holiday pay had been calculated. Medcan investigated and determined that some of its employees had been underpaid. It decided not to make this mistake in the future, and beginning in January 2020, it paid the deficiency in vacation and public holiday pay to employees for the two previous years (back to December 2017).
[40] Medcan made the deficiency payments notwithstanding that some former employees had signed releases when their employment with Medcan had ended. It says that it did so as an act of good faith.
[41] Medcan takes the position that any claim for the deficiency for more than the two prior years is statute-barred under the Employment Standards Act, 2000 and under the Limitations Act, 2002.
[42] The Plaintiffs assert that some of the deficiency payments for the two-year period were miscalculated. This is denied by Medcan, which submits that the Plaintiffs’ allegation is unfair and contrary to the rule in Browne v. Dunn.[^6] The Defendants argue that they have been denied the opportunity to respond to this allegation, which they submit was raised only in the Plaintiffs’ factum.
[43] For present purposes, although I doubt that Browne v. Dunn is applicable and I doubt that the Defendants were taken by surprise, I need not decide the point. For present purposes, I simply conclude that there is some basis in fact that there may have been some underpayments of the remedial payments for vacation pay and public holiday pay. This conclusion is not prejudicial to the Defendants and rather supports their arguments below that there must be individual issues trials to determine the Class Members’ entitlements and that aggregate damages are not available in the immediate case to determine how much, if anything, is owed to individual Class Members.
G. Certification: General Principles
[44] The court has no discretion and is required to certify an action as a class proceeding when the following five-part test in s. 5 of the Class Proceedings Act, 1992 is met: (1) the pleadings disclose a cause of action; (2) there is an identifiable class of two or more persons that would be represented by the representative plaintiff; (3) the claims of the class members raise common issues; (4) a class proceeding would be the preferable procedure for the resolution of the common issues; and (5) there is a representative plaintiff who: (a) would fairly and adequately represent the interests of the class; (b) 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 (c) does not have, on the common issues for the class, an interest in conflict with the interests of other class members.
[45] For an action to be certified as a class proceeding, there must be a cause of action shared by an identifiable class from which common issues arise that can be resolved in a fair, efficient, and manageable way that will advance the proceeding and achieve access to justice, judicial economy, and the modification of behaviour of wrongdoers.[^7] On a certification motion, the question is not whether the plaintiff's claims are likely to succeed on the merits, but whether the claims can appropriately be prosecuted as a class proceeding.[^8] The test for certification is to be applied in a purposive and generous manner, to give effect to the goals of class actions; namely: (1) to provide access to justice for litigants; (2) to encourage behaviour modification; and (3) to promote the efficient use of judicial resources.[^9]
[46] For certification, the plaintiff in a proposed class proceeding must show “some basis in fact” for each of the certification requirements, other than the requirement that the pleading discloses a cause of action.[^10]
[47] The some-basis-in-fact standard sets a low evidentiary standard for plaintiffs, and a court should not resolve conflicting facts and evidence at the certification stage or opine on the strengths of the plaintiff’s case.[^11] In particular, there must be a basis in the evidence to establish the existence of common issues.[^12] To establish commonality, evidence that the alleged misconduct actually occurred is not required; rather, the necessary evidence goes only to establishing whether the questions are common to all the class members.[^13]
[48] The some-basis-in-fact standard does not require evidence on a balance of probabilities and does not require that the court resolve conflicting facts and evidence at the certification stage and rather reflects the fact that at the certification stage the court is ill-equipped to resolve conflicts in the evidence or to engage in the finely calibrated assessments of evidentiary weight and that the 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.[^14]
[49] On a certification motion, evidence directed at the merits may be admissible if it also bears on the requirements for certification but, in such cases, the issues are not decided on the basis of a balance of probabilities, but rather on the much less stringent test of some basis in fact.[^15] The evidence on a motion for certification must meet the usual standards for admissibility.[^16] While evidence on a certification motion must meet the usual standards for admissibility, the weighing and testing of the evidence is not meant to be extensive, and if the expert evidence is admissible, the scrutiny of it is modest.[^17]
H. The Cause of Action Criterion
1. General Principles
[50] The first criterion for certification is that the plaintiff's pleading discloses a cause of action. The "plain and obvious" test for disclosing a cause of action from Hunt v. Carey Canada,[^18] is used to determine whether a proposed class proceeding discloses a cause of action for the purposes of s. 5(1)(a) of the Class Proceedings Act, 1992.[^19]
[51] In a proposed class proceeding, in determining whether the pleading discloses a cause of action, no evidence is admissible, and the material facts pleaded are accepted as true, unless patently ridiculous or incapable of proof. The pleading is read generously, and it will be unsatisfactory only if it is plain, obvious, and beyond a reasonable doubt that the plaintiff cannot succeed.[^20]
[52] Bare allegations and conclusory legal statements based on assumption or speculation are not material facts; they are incapable of proof and, therefore, they are not assumed to be true for the purposes of a motion to determine whether a legally viable cause of action has been pleaded.[^21]
[53] The failure to establish a cause of action usually arises in one of two ways: (1) the allegations in the statement of claim do not plead all the elements necessary for a recognized cause of action; or, (2) the allegations in the statement of claim do not come within a recognized cause of action.[^22]
[54] To satisfy the first criterion for certification, a claim will be satisfactory, unless it has a radical defect, or it is plain and obvious that it could not succeed.[^23]
[55] Matters of law that are not fully settled should not be disposed of on a motion to strike an action for not disclosing a reasonable cause of action,[^24] and the court's power to strike a claim is exercised only in the clearest cases.[^25] The law must be allowed to evolve, and the novelty of a claim will not militate against a plaintiff.[^26] However, a novel claim must have some elements of a cause of action recognized in law and be a reasonably logical and arguable extension of established law.[^27]
[56] In R. v. Imperial Tobacco Canada Ltd.,[^28] the Supreme Court of Canada noted that although the tool of a motion to strike for failure to disclose a reasonable cause of action must be used with considerable care, it is a valuable tool because it promotes judicial efficiency by removing claims that have no reasonable prospect of success and it promotes correct results by allowing judges to focus their attention on claims with a reasonable chance of success.
[57] In Atlantic Lottery Corp. Inc. v. Babstock,[^29] the Supreme Court stated that the test applicable on a motion to strike is a high standard that calls on courts to read the claim as generously as possible because cases should, if possible, be disposed of on their merits based on the concrete evidence presented before judges at trial.
2. Analysis: Cause of Action Criterion
[58] The Plaintiffs submit that their Fresh as Amended Statement of Claim advances three causes of action; (a) breach of employment contract; (b) several violations of the Employment Standards Act, 2000; and (c) unjust enrichment.
[59] The Plaintiffs’ submission, however, somewhat misdescribes the Class Members’ causes of action. Strictly speaking, violations of the Employment Standards Act, 2000 are not a cause of action for this court. Rather, the alleged and now largely admitted violations of the Employment Standards Act, 2000 are more accurately described as the breaches of employment contracts. Similarly, the alleged breach of the trust provisions of the Employment Standards Act, 2000 are a breach of the employment contract or a breach of trust.
[60] In any event, I conclude that the Plaintiffs’ Fresh as Amended Statement of Claim satisfies the cause of action criterion. The Plaintiffs’ pleading discloses several causes of action all of which are certifiable.
[61] In the immediate case, the Defendants made an elaborate argument that no statutory trust was established with respect to the unpaid vacation pay and the unpaid public holiday pay. For present purposes, however, I need not describe this argument and say no more than while the Defendants’ argument is a quite strong argument, it does not establish that it is plain and obvious that there is no breach of trust claim in the pleaded circumstances of the immediate case.
I. Identifiable Class Criterion
1. General Principles
[62] The second certification criterion is the identifiable class criterion. The definition of an identifiable class serves three purposes: (1) it identifies the persons who have a potential claim against the defendant; (2) it defines the parameters of the lawsuit so as to identify those persons bound by the result of the action; and (3) it describes who is entitled to notice.[^30]
[63] In defining the persons who have a potential claim against the defendant, there must be a rational relationship between the class, the cause of action, and the common issues, and the class must not be unnecessarily broad or over-inclusive.[^31] An over-inclusive class definition binds persons who ought not to be bound by judgment or by settlement, be that judgment or settlement favourable or unfavourable.[^32] The rationale for avoiding over-inclusiveness is to ensure that litigation is confined to the parties joined by the claims and the common issues that arise.[^33] The class should not be defined wider than necessary, and where the class could be defined more narrowly, the court should either disallow certification or allow certification on condition that the definition of the class be amended.[^34] A proposed class definition, however, is not overbroad because it may include persons who ultimately will not have a successful claim against the defendants.[^35]
2. Analysis: Identifiable Class Criterion
[64] The original and the newly proposed class definitions are set out above.
[65] The scheme of the newly proposed class definition is that the class is current and former employees from April 7, 2005 who received variable pay, who could advance claims for all the deficient payments of vacation pay and public holiday pay during their tenure of employment. April 7, 2005 was chosen given the Defendants’ argument that claims ought to be limited to the 15-year maximum limitation period. While not accepting that this is necessarily a cut-off for the purpose of this action, the Plaintiffs are willing to limit their class definition to the 15 years preceding the commencement of their proposed class action.
[66] Without objecting to the original class definition or providing reasons why the original class definition is not certifiable, the Defendants object to the newly proposed class definition on the professed basis that on a certification motion, the court can only amend a class definition to make it certifiable if the amendment narrows or reduces the class size.
[67] In other words, the Defendants submit that on certification, the court can address only over-inclusiveness to the end of reducing class size but not under-inclusiveness, which would have the end of increasing class size. Further, the Defendants submit that it is unfair to be confronted with a larger potential class than they anticipated.
[68] In their counterargument, the Plaintiffs overcome the Defendants’ objection to the newly proposed definition by asserting that their newly proposed definition produces a smaller class than the original definition.
[69] I disagree with the Defendants’ submission about the court’s jurisdiction to revise the class definition at the certification hearing and I also agree with the Plaintiffs’ submission that the revised class definition does reduce the class size by excluding Class Members whose claim would be statute-barred by the absolute 15-year limitation period of the Limitations Act, 2002.
[70] In any event, I conclude that the Plaintiffs satisfy the identifiable class criterion for certification of their action as a class proceeding. The proposed definition identifies the persons who have a potential claim against the Defendants; defines the parameters of the lawsuit so as to identify those persons bound by the result of the action; and describes who is entitled to notice of certification.
3. The Class Definition and the Limitations Act, 2002
[71] Before moving on to the other certification criterion, it shall be important to keep in mind, that neither party wished to address the limitation period issue that is a critical feature of the immediate case as an aspect of the class definition or as a common issue.
[72] The Defendants could have argued - but did not argue - that the class size should not only be reduced by the absolute limitation period of the Limitations Act, 2002 but should also be reduced by the presumptive two-year general limitation period. The Defendants did not argue that the class definition was overinclusive by including Class Members with presumptively statute-barred claims. Had the argument been made and been successful, the class definition would have been amended. Practically speaking, the result then would have been that the class action would not have involved any limitation period defences and the class size would have been substantially reduced.
[73] Generally speaking, while it is theoretically possible, the matter of limitations is rarely a class wide issue because it is rare that there is clear evidence of class-wide commonality[^36] and in the immediate case the Defendants’ approach made the resolution of the limitation periods something necessarily to be determined at individual issues trials for a large class of former employees. The Defendants’ approach appears to have been taken to bolster their arguments that the common issues and preferable procedure criteria could not be satisfied in the immediate case and, therefore, the action should not be certified.
[74] For their part, the Plaintiffs did not ask that the matter of the rebuttal of the Limitations Act, 2002 be included amongst the common issues. In this regard, it should be noted that in their Statements of Claim, the Plaintiffs anticipated that the Defendants would raise a general limitation period defence and in their argument, the Plaintiffs submitted that Medcan’s ongoing representations that it was compliant with the Employment Standards Act, 2000 and its predecessors estopped it from relying on a limitations period defence. Further, the Plaintiffs pleaded that the past and present employees all would have discovered their claims at the same time as the problem was brought to the attention of Medcan. Notwithstanding these pleadings, the Plaintiffs did not ask that the rebuttal of the application of the general limitation period be a common issue.
[75] The point to take forward is that the forensic architecture of this class action is that the common issues trial will necessarily be followed by individual issues trials to determine the amount of the deficiencies in payment of vacation pay and public holiday pay and the individual issues trial will determine the extent to which former employees’ claims are statute-barred. This means that there is considerable traction to the Defendants’ submission that the proposed class action is ultimately mostly about the application of the Limitations Act, 2002.
J. Common Issues Criterion
1. General Principles
[76] The third criterion for certification is the common issues criterion. For an issue to be a common issue, it must be a substantial ingredient of each class member’s claim and its resolution must be necessary to the resolution of each class member’s claim.[^37]
[77] The underlying foundation of a common issue is whether its resolution will avoid duplication of fact-finding or legal analysis of an issue that is a substantial ingredient of each class member’s claim and thereby facilitate judicial economy and access to justice.[^38]
[78] In Pro-Sys Consultants Ltd. v. Microsoft Corporation,[^39] the Supreme Court of Canada describes the commonality requirement as the central notion of a class proceeding which is that individuals who have litigation concerns in common ought to be able to resolve those common concerns in one central proceeding rather than through an inefficient multitude of repetitive proceedings.
[79] All members of the class must benefit from the successful prosecution of the action, although not necessarily to the same extent. The answer to a question raised by a common issue for the plaintiff must be capable of extrapolation, in the same manner, to each member of the class.[^40]
[80] An issue is not a common issue if its resolution is dependent upon individual findings of fact that would have to be made for each class member.[^41] Common issues cannot be dependent upon findings which will have to be made at individual trials, nor can they be based on assumptions that circumvent the necessity for individual inquiries.[^42]
[81] The common issue criterion presents a low bar.[^43] An issue can be a common issue even if it makes up a very limited aspect of the liability question and even though many individual issues remain to be decided after its resolution.[^44] Even a significant level of individuality does not preclude a finding of commonality.[^45] A common issue need not dispose of the litigation; it is sufficient if it is an issue of fact or law common to all claims and its resolution will advance the litigation.[^46]
[82] From a factual perspective, the Plaintiff must show that there is some basis in fact that: (a) the proposed common issue actually exists; and, (b) the proposed issue can be answered in common across the entire class, which is to say that the Plaintiff must adduce some evidence demonstrating that there is a colourable claim or a rational connection between the Class Members and the proposed common issues.[^47]
2. Analysis: The Common Issues
[83] The eight proposed common issues are set out above. For analytical purposes, these questions can be synthesized into two questions. Proposed questions 1 to 4 are in essence just the question of: Did the Defendants breach the Class Members’ employment contracts in how vacation pay and public holiday pay was paid to Class Members? Proposed questions 5 to 8 are in essence just the question: If the Defendants failed to pay vacation pay and or holiday, can aggregate damages be assessed in whole or in part on the basis of statistical evidence, including statistical evidence based on random sampling.
[84] The factual record for this certification motion reveals that there is some basis in fact for a common issue of whether the Defendants breached the Class Members’ employment contracts in how Medcan paid vacation pay and public holiday pay to Class Members. Indeed, although the Defendants deny a breach of trust, the Defendants have conceded that they did not comply with their contractual and statutory obligations to pay vacation pay and public holiday pay. The Defendants made remedial payments precisely because they acknowledged that they had made mistakes in paying vacation and public holiday pay.
[85] Notwithstanding the Defendants’ arguments to the contrary, I conclude that the Plaintiffs have satisfied the common issues criterion for questions 1 to 4.
[86] The Defendants’ main argument against the certification of these questions is that given the many different employment categories at Medcan and the diverse way that vacation pay and public holiday pay were recorded and paid and given the inevitability of individual limitations period issues, there is no common issue and only individual issues about breaches of the employment contract and the discoverability of those breaches.
[87] However, while the Defendants’ main argument will be relevant to the preferable procedure criterion, it does not work for them with respect to whether questions 1 to 4 are certifiable. It may be that there were various ways that the putative Class Members earned vacation pay and public holiday pay but there was commonalty in Medcan making mistakes in calculating the vacation pay and public holiday pay that corresponded to the putative Class Members’ earnings. There is some basis in fact for this common issue, and it meets the low standard for a common issue that moves the litigation forward.
[88] The Defendants are, however, successful in their argument that questions 5 to 8 are not certifiable. Pursuant to s. 24 (1) of the Class Proceedings Act, 1992, aggregated damages are only available when (a) monetary relief is claimed on behalf of Class Members; (b) no questions of fact or law other than those relating to the assessment of monetary relief remain to be determined in order to establish the amount of the defendant’s monetary liability; and (c) the aggregate of the defendant’s liability can reasonably be determined without proof by individual class members.
[89] In the immediate case, individual questions of fact relating to the determination of Medcan’s liability remain to be determined and the aggregate of Medcan’s liability cannot be determined without proof by individual Class Members. The common issue is that Medcan made its vacation pay and public holiday pay calculations without taking into account individual circumstances such as commission income and bonuses. The individual circumstances of the consequences of that common mistake remain to be determined at individual issues trials. There is no statistical sampling that would assist in determining what the individual Class Members is owed.
[90] The Class Proceedings Act, 1992 is a procedural statute, and it does not create a new type of damages known as aggregate damages. All that s. 24 (1) of the Class Proceedings Act does is that it recognizes that in certain circumstances depending upon the nature of the Class Members’ claims, it may be possible to avoid individual assessments of damages and arrive at a calculation of damages equal to what the defendant would have to pay if there were individual assessments. The case at bar is not that type of case.
[91] The popularity of unjust enrichment claims where the Class Members claim compensation for the defendant’s wrongdoing based on the defendant’s gain as opposed to their individual losses is the gold standard for aggregate damages because the preconditions of s. 24 (1) will be satisfied. But the immediate case is not such a case. Although the Class Members do claim unjust enrichment, their unjust enrichment claims are just the other side of the coin of their breach of employment contract claims and these claims do not lend themselves to an aggregate assessment; rather, those claims require individual determinations of what the Class Member is owed for unpaid vacation pay and unpaid public holiday pay.
[92] In the result, I conclude that the Plaintiffs satisfy the common issues criterion for questions 1 to 4 but not for questions 5 to 8.
K. Preferable Procedure Criterion
1. General Principles
[93] Under the Class Proceedings Act, 1992, the fourth criterion for certification is the preferable procedure criterion. Preferability captures the ideas of: (a) whether a class proceeding would be an appropriate method of advancing the claims of the class members; and (b) whether a class proceeding would be better than other methods such as joinder, test cases, consolidation, and any other means of resolving the dispute.[^48]
[94] In AIC Limited v. Fischer,[^49] the Supreme Court of Canada emphasized that the preferability analysis must be conducted through the lens of judicial economy, behaviour modification, and access to justice. Justice Cromwell stated that access to justice has both a procedural and substantive dimension. The procedural aspect focuses on whether the claimants have a fair process to resolve their claims. The substantive aspect focuses on the results to be obtained and is concerned with whether the claimants will receive a just and effective remedy for their claims if established.
[95] Thus, for a class proceeding to be the preferable procedure for the resolution of the claims of a given class, it must represent a fair, efficient, and manageable procedure that is preferable to any alternative method of resolving the claims.[^50] Whether a class proceeding is the preferable procedure is judged by reference to the purposes of access to justice, behaviour modification, and judicial economy and by taking into account the importance of the common issues to the claims as a whole, including the individual issues.[^51]
[96] To satisfy the preferable procedure criterion, the proposed representative plaintiff must show some basis in fact that the proposed class action would: (a) be a fair, efficient and manageable method of advancing the claim; (b) be preferable to any other reasonably available means of resolving the class members’ claims; and (c) facilitate the three principal goals of class proceedings; namely: judicial economy, behaviour modification, and access to justice.[^52]
2. Analysis: Preferable Procedure
[97] Although the Plaintiffs have satisfied the first, second, and third of the certification criteria, in my opinion, they do not satisfy the preferable procedure criterion.
[98] The explanation as to why a class action is not the preferable procedure for the immediate case is that while enough will be accomplished in the immediate case at the common issues trial to satisfy the low bar of the common issues criterion, that accomplishment will be infinitesimal compared to what the Class Member will need to establish at his or her inevitable individual issues trial, where the Class member would be exposed to an adverse costs award if he or she were unsuccessful. In these circumstances, proceeding directly to an individual issues trial without a common issues trial is the preferable procedure to resolving the Class Members’ claims.[^53] A class proceeding is not preferable to just getting on with an individual action.
[99] In the immediate case, assuming that the Class Members are successful with respect to common issues 1 to 4, there is no possibility of an aggregate assessment of their claims and the action will inevitability proceed to individual issues trials. In other words, in terms of access to justice, there is marginal utility of a common issues trial in the immediate case for the Class Members.
[100] While there is some basis in fact to conclude that there may be some Class Members who received a deficient remedial payment of vacation pay and public holiday pay, practically speaking, there will be very few, if any, Class Members of this type. This practical truth reveals, once again, what the immediate case is really about, and what this Class Action is really about is Medcan’s decision to rely on the presumptive two-year limitation period.
[101] For the Class Members who did not receive a remedial payment for vacation pay and public holiday, it is preferable that they do not pass through a class proceeding portal for access to justice. For example, take the situation of a former employee of Medcan who was employed in 2010. What is to be gained by this employee waiting to receive notice that he or she could proceed to an individual issues trial to determine how much they were owed for unpaid vacation pay and public holiday pay? The substantive issues for that individual issues trial would be whether his or her claim was statute-barred and whether the employee had signed an enforceable release at the time of the termination of his or her employment. The onus would be on the employee to overcome the presumption of the running of the limitation period established by s. 5(2) of the Limitations Act, 2002 and to establish a basis for rescinding the release. The common issues trial simply delays access to justice for that former employee.
[102] The above analysis reveals that a class proceeding is not the preferable procedure for the resolution of a class members’ claims. The preferable procedure is a court proceeding. An administrative proceeding under the Employment Standards Act, 2000 comes too late, and although the putative class member would be confronted with a limitation period defence, that would be the case for the inevitable individual issues trial in a class proceeding. In the immediate case, the putative Class Members are only delayed by a common issues trial.
[103] I repeat what I said in Broutzas v. Rouge Valley Health System,[^54] which was a case involving an alleged breach of privacy and intrusion on seclusion and negligence claim with respect to the disclosure of hospital medical records, at paras. 293-294 [footnotes omitted]:
In undertaking a preferable procedure analysis in a case in which individual issue trials are inevitable, it should be appreciated that the Class Proceedings Act, 1992 envisions the prospect of individual claims being litigated and it should be noted that sections 12 and 25 of the Act empower the court with tools to manage and achieve access to justice and judicial economy; thus the inevitability of individual issues trials is not an obstacle to certification. In the context of misrepresentation claims, numerous actions have been certified notwithstanding individual issues of reliance and damages.
That said, in a given particular case, the inevitability of individual issues trials may obviate any advantages from the common issues trial and make the case unmanageable and thus the particular case will fail the preferable procedure criterion. Or, in a given case, the inevitability of individual issues may mean that while the action may be manageable, those individual issue trials are the preferable procedure and a class action is not the preferable procedure to achieve access to justice, behaviour modification, and judicial economy. A class action may not be fair, efficient and manageable, having regard to the common issues in the context of the action as a whole and the individual issues that would remain after the common issues are resolved. A class action will not be preferable if, at the end of the day, claimants remain faced with the same economic and practical hurdles that they faced at the outset of the proposed class action.
[104] I, therefore, conclude that the Plaintiffs’ action does not satisfy the preferable procedure criterion, and it follows that the certification motion should be dismissed.
L. Representative Plaintiff Criterion and the Defendants’ Summary Judgment Motion
1. General Principles
[105] The fifth and final criterion for certification as a class action is that there is a representative plaintiff who would adequately represent the interests of the class without conflict of interest and who has produced a workable litigation plan. The representative plaintiff must be a member of the class asserting claims against the defendant, which is to say that the representative plaintiff must have a claim that is a genuine representation of the claims of the members of the class to be represented or that the representative plaintiff must be capable of asserting a claim on behalf of all of the class members as against the defendant.[^55]
2. Analysis: Representative Plaintiff Criterion
[106] The Defendants submit that the Plaintiffs do not satisfy the Representative Plaintiff criterion.
[107] In submissions that are closely connected to the Defendants’ summary judgment motion, the Defendants submit that: (a) Ms. Curtis does not qualify as representative plaintiff because she is not a Class Member as defined by the original Statement of Claim; (b) Ms. Buhlman, Ms. Curtis, and Mr. Galal respectively do not qualify as representative plaintiffs because their claims are statute-barred; and (c) Ms. Curtis and Mr. Galal respectively do not qualify as representative plaintiffs because their claims are barred by full and final releases. Further, the Defendants argue that the Plaintiffs do not satisfy the Representative Plaintiff criterion because they have not produced a workable litigation plan.
[108] Because I am not certifying the class action, technically speaking, it is moot whether the Plaintiffs satisfy the representative plaintiff criterion. However, for completeness, I add that this criterion is satisfied. I disagree with the Defendants’ submissions to the contrary for the following reasons.
[109] First, while Ms. Curtis may not have been included in the class definition in the original Statement of Claim, she is within the class definition that satisfies the class identification criterion.
[110] Second, as noted at the outset, there are genuine issues for trial as to whether Ms. Buhlman’s, Ms. Curtis’s, and Mr. Galal’s claims are statute-barred. Further, I do not have an adequate record to decide this issue summarily. The summary judgment motion is therefore dismissed. At this juncture of the proposed class proceeding, the Plaintiffs are advancing the same claims as the other Class Members and thus they are qualified to be a representative plaintiff.
[111] Third, as noted at the outset, there are genuine issues for trial as to whether Ms. Curtis’s, and Mr. Galal’s claims are barred by releases. Further, I do not have an adequate record to decide this issue summarily. At this juncture of the proposed class proceeding, the Plaintiffs are advancing the same claims as the other class members and are qualified to be a representative plaintiff.
[112] Fourth, a litigation plan is always a work in progress and had the Plaintiffs satisfied the preferable procedure criterion, the proposed litigation plan would have been adequate for certification.
M. Conclusion
[113] For the above reasons, the summary judgment motion is dismissed, and the certification motion is dismissed.
[114] I advise the parties that my present inclination is not to make any order as to costs.
[115] However, if the parties cannot agree about the matter of costs, they may make submissions in writing beginning with the Defendants’ submissions within twenty days of the release of these Reasons for Decision followed by the Plaintiffs’ submissions within a further twenty days.
Perell, J.
Released: June 25, 2021
COURT FILE NO.: CV-20-00639259-00CP
DATE: 20210625
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
NICOLE CURTIS, AMR GALAL and NICOLE CURTIS, AMR GALAL and KATRINA BUHLMAN
Plaintiff
- and -
MEDCAN HEALTH MANAGEMENT INC, ANDREW CARRAGHER, SHAUN FRANCIS, EDWIN HAWKEN, URBAN JOSEPH, BEAU LASKEY, THOMAS REEVES, OWEN ROGERS, CRAIG SHEPHERD
Defendants
REASONS FOR DECISION
PERELL J.
Released: June 25, 2021
[^1]: Class Proceedings Act, 1992, S.O. 1992, c. 6.
[^2]: Employment Standards Act, 2000, S.O. 2000, c. 41.
[^3]: Limitations Act, 2002, S.O. 2002, c. 24, Sched. B.
[^4]: Medcan also brought a cross motion pursuant to rule 21.01(1)(b) to strike the claims against the individual Defendants. However, this motion was withdrawn when the Plaintiffs agreed to abandon their claim under s. 81 of the Employment Standards Act, 2000 and in light of the Court of Appeal’s decision in Abbasbayli v Fiera Foods Company, 2021 ONCA 95.
[^5]: Business Corporations Act, R.S.O. 1990, c B 16.
[^6]: Browne v. Dunn (1893), 1893 CanLII 65 (FOREP), 6 R. 67 67 (H.L); R. v. Quansan, 2015 ONCA 237.
[^7]: Sauer v. Canada (Attorney General), 2008 CanLII 43774 (ON SC), [2008] O.J. No. 3419 at para. 14 (S.C.J.), leave to appeal to Div. Ct. refused, 2009 CanLII 2924 (ON SCDC), [2009] O.J. No. 402 (Div. Ct.).
[^8]: Hollick v. Toronto (City), 2001 SCC 68 at para. 16.
[^9]: Hollick v. Toronto (City), 2001 SCC 68 at paras. 15 and 16; Western Canadian Shopping Centres Inc. v. Dutton, 2001 SCC 46 at paras. 26 to 29.
[^10]: Hollick v. Toronto (City), 2001 SCC 68, [2001] 3 S.C.R. 158 at para. 25; Pro-Sys Consultants Ltd. v. Microsoft Corporation, 2013 SCC 57 at paras. 99-105; Taub v. Manufacturers Life Insurance Co., (1998) 1998 CanLII 14853 (ON SC), 40 O.R. (3d) 379 (Gen. Div.), aff’d (1999), 1999 CanLII 19922 (ON SC), 42 O.R. (3d) 576 (Div. Ct.).
[^11]: Pro-Sys Consultants Ltd. v. Microsoft Corporation, 2013 SCC 57; McCracken v. CNR Co., 2012 ONCA 445.
[^12]: Singer v. Schering-Plough Canada Inc., 2010 ONSC 42 at para. 140; Fresco v. Canadian Imperial Bank of Commerce, 2009 CanLII 31177 (ON SC), [2009] O.J. No. 2531 at para. 21 (S.C.J.); Dumoulin v. Ontario, [2005] O.J. No. 3961 at para. 25 (S.C.J.).
[^13]: Pro-Sys Consultants Ltd. v. Microsoft Corporation, 2013 SCC 57 at para. 110.
[^14]: Pro-Sys Consultants Ltd. v. Microsoft Corporation, 2013 SCC 57 at para. 102.
[^15]: Cloud v. Canada (2004), 2004 CanLII 45444 (ON CA), 73 O.R. (3d) 401 at para. 50 (C.A.), leave to appeal to the S.C.C. ref'd, [2005] S.C.C.A. No. 50, rev'g (2003), 2003 CanLII 72353 (ON SCDC), 65 O.R. (3d) 492 (Div. Ct.); Hollick v. Toronto (City), 2001 SCC 68 at paras. 16-26.
[^16]: Martin v. Astrazeneca Pharmaceuticals PLC, 2012 ONSC 2744; Williams v. Canon Canada Inc., 2011 ONSC 6571, aff’d 2012 ONSC 3992 (Div. Ct.); Schick v. Boehringer Ingelheim (Canada) Ltd., 2011 ONSC 63 at para.13; Ernewein v. General Motors of Canada Ltd. 2005 BCCA 540 (C.A.), leave to appeal to S.C.C. ref’d, [2005] S.C.C.A. No. 545.
[^17]: Griffin v. Dell Canada Inc., 2009 CanLII 3557 (ON SC), [2009] O.J. No. 418 at para. 76 (S.C.J.).
[^18]: 1990 CanLII 90 (SCC), [1990] 2 S.C.R. 959.
[^19]: Wright v. Horizons ETFS Management (Canada) Inc., 2020 ONCA 337 at para. 57; Amyotrophic Lateral Sclerosis Society of Essex County v. Windsor (City), 2015 ONCA 572; Hollick v. Metropolitan Toronto (Municipality), 2001 SCC 68.
[^20]: Cloud v. Canada (Attorney General) (2004), 2004 CanLII 45444 (ON CA), 73 O.R. (3d) 401 at para. 41 (C.A.), leave to appeal to the S.C.C. refused, [2005] S.C.C.A. No. 50, rev'g, (2003), 2003 CanLII 72353 (ON SCDC), 65 O.R. (3d) 492 (Div. Ct.); Hollick v. Toronto (City), 2001 SCC 68 at para. 25; Abdool v. Anaheim Management Ltd. (1995), 1995 CanLII 5597 (ON SCDC), 21 O.R. (3d) 453 at p. 469 (Div. Ct.).
[^21]: Deluca v. Canada (AG), 2016 ONSC 3865; Losier v. Mackay, Mackay & Peters Ltd., 2009 CanLII 43651 (ON SC), [2009] O.J. No. 3463 at paras. 39-40 (S.C.J.), aff’d 2010 ONCA 613, leave to appeal ref’d [2010] SCCA 438; Grenon v. Canada Revenue Agency, 2016 ABQB 260 at para. 32; Merchant Law Group v. Canada Revenue Agency, 2010 FCA 184 at para. 34.
[^22]: 2106701 Ontario Inc. (c.o.b. Novajet) v. 2288450 Ontario Ltd., 2016 ONSC 2673 at para. 42; Aristocrat Restaurants Ltd. v. Ontario, [2004] O.J. No. 5164 (S.C.J.); Dawson v. Rexcraft Storage & Warehouse Inc., 1998 CanLII 4831 (ON CA), [1998] O.J. No. 3240 at para. 10 (C.A.).
[^23]: 176560 Ontario Ltd. v. Great Atlantic & Pacific Co. of Canada Ltd. (2002), 2002 CanLII 6199 (ON SC), 62 O.R. (3d) 535 at para. 19 (S.C.J.), leave to appeal granted, 2003 CanLII 36393 (ON SCDC), 64 O.R. (3d) 42 (S.C.J.), aff'd (2004), 2004 CanLII 16620 (ON SCDC), 70 O.R. (3d) 182 (Div. Ct.); Anderson v. Wilson (1999), 1999 CanLII 3753 (ON CA), 44 O.R. (3d) 673 at p. 679 (C.A.), leave to appeal to S.C.C. ref'd, [1999] S.C.C.A. No. 476.
[^24]: Dawson v. Rexcraft Storage & Warehouse Inc. (1998), 1998 CanLII 4831 (ON CA), 164 D.L.R. (4th) 257 (Ont. C.A.).
[^25]: Temelini v. Ontario Provincial Police (Commissioner) (1990), 1990 CanLII 7000 (ON CA), 73 O.R. (2d) 664 (C.A.).
[^26]: Johnson v. Adamson (1981), 1981 CanLII 1667 (ON CA), 34 O.R. (2d) 236 (C.A.), leave to appeal to the S.C.C. refused (1982), 35 O.R. (2d) 64n.
[^27]: Silver v. Imax Corp., 2009 CanLII 72334 (ON SC), [2009] O.J. No. 5585 (S.C.J.) at para. 20; Silver v. DDJ Canadian High Yield Fund, 2006 CanLII 21058 (ON SC), [2006] O.J. No. 2503 (S.C.J.).
[^28]: 2011 SCC 42 at paras. 17-25.
[^29]: 2020 SCC 19 at para. 87–88.
[^30]: Bywater v. Toronto Transit Commission, [1998] O.J. No. 4913 (Gen. Div.).
[^31]: Pearson v. Inco Ltd. (2006), 2006 CanLII 913 (ON CA), 78 O.R. (3d) 641 at para. 57 (C.A.), rev'g 2004 CanLII 34446 (ON SCDC), [2004] O.J. No. 317 (Div. Ct.), which had aff'd [2002] O.J. No. 2764 (S.C.J.).
[^32]: Robinson v. Medtronic Inc., 2009 CanLII 56746 (ON SC), [2009] O.J. No. 4366 at paras. 121-146 (S.C.J.).
[^33]: Frohlinger v. Nortel Networks Corporation, 2007 CanLII 696 (ON SC), [2007] O.J. No. 148 at para. 22 (S.C.J.).
[^34]: Fehringer v. Sun Media Corp., [2002] O.J. No. 4110 at paras. 12-13 (S.C.J.), aff’d [2003] O.J. No. 3918 (Div. Ct.); Hollick v. Toronto (City), 2001 SCC 68 at para. 21.
[^35]: Silver v. Imax Corp., 2009 CanLII 72334 (ON SC), [2009] O.J. No. 5585 at para. 103-107 (S.C.J.) at para. 103-107, leave to appeal to Div. Ct. refused 2011 ONSC 1035 (Div. Ct.); Boulanger v. Johnson & Johnson Corp., 2007 CanLII 735 (ON SC), [2007] O.J. No. 179 at para. 22 (S.C.J.), leave to appeal ref’d [2007] O.J. No. 1991 (Div. Ct.); Ragoonanan v. Imperial Tobacco Inc. (2005), 2005 CanLII 40373 (ON SC), 78 O.R. (3d) 98 (S.C.J.), leave to appeal ref’d 2008 CanLII 19242 (ON SCDC), [2008] O.J. No. 1644 (Div. Ct.); Bywater v. Toronto Transit Commission, [1998] O.J. No. 4913 at para. 10 (Gen. Div.)
[^36]: Fresco v. Canadian Imperial Bank of Commerce, 2020 ONSC 6098; Cloud v Canada (Attorney General), 2004 CanLII 45444 (ON CA), [2004] O.J. No. 4924 at para. 61 (C.A.).
[^37]: Hollick v. Toronto (City), 2001 SCC 68 at para. 18.
[^38]: Western Canadian Shopping Centres Inc. v. Dutton, 2001 SCC 46 at paras. 39 and 40.
[^39]: 2013 SCC 57 at para. 106.
[^40]: Batten v. Boehringer Ingelheim (Canada) Ltd., 2017 ONSC 53, aff’d, 2017 ONSC 6098 (Div. Ct.), leave to appeal refused (28 February 2018) (C.A.); Amyotrophic Lateral Sclerosis Society of Essex County v. Windsor (City), 2015 ONCA 572 at para. 48; McCracken v. CNR, 2012 ONCA 445 at para. 183; Merck Frosst Canada Ltd. v. Wuttunee, 2009 SKCA 43 at paras. 145-46 and 160, leave to appeal to S.C.C. refused, [2008] S.C.C.A. No. 512; Ernewein v. General Motors of Canada Ltd., 2005 BCCA 540 (C.A.), leave to appeal to S.C.C. ref’d, [2005] S.C.C.A. No. 545; Western Canadian Shopping Centres Inc. v. Dutton, 2001 SCC 46 at para. 40.
[^41]: Fehringer v. Sun Media Corp., [2003] O.J. No. 3918 at paras. 3, 6 (Div. Ct.).
[^42]: McKenna v. Gammon Gold Inc., 2010 ONSC 1591, [2010] O.J. No. 1057 at para. 126 (S.C.J.), leave to appeal granted 2010 ONSC 4068, [2010] O.J. No. 3183 (Div. Ct.), var’d 2011 ONSC 3882 (Div. Ct.); Nadolny v. Peel (Region), [2009] O.J. No. 4006 at paras. 50-52 (S.C.J.); Collette v. Great Pacific Management Co., 2003 BCSC 332, [2003] B.C.J. No. 529 at para. 51 (B.C.S.C.), var’d on other grounds (2004) 2004 BCCA 110, 42 B.L.R. (3d) 161 (B.C.C.A.).
[^43]: 203874 Ontario Ltd. v. Quiznos Canada Restaurant Corp., 2009 CanLII 23374 (ON SCDC), [2009] O.J. No. 1874 (Div. Ct.), aff’d 2010 ONCA 466, [2010] O.J. No. 2683 (C.A.), leave to appeal to S.C.C. refused [2010] S.C.C.A. No. 348; Cloud v. Canada (Attorney General) (2004), 2004 CanLII 45444 (ON CA), 73 O.R. (3d) 401 at para. 52 (C.A.), leave to appeal to the S.C.C. ref'd, [2005] S.C.C.A. No. 50, rev'g (2003), 2003 CanLII 72353 (ON SCDC), 65 O.R. (3d) 492 (Div. Ct.); Carom v. Bre-X Minerals Ltd. (2000), 2000 CanLII 16886 (ON CA), 51 O.R. (3d) 236 at para. 42 (C.A.).
[^44]: Cloud v. Canada (Attorney General), (2004), 2004 CanLII 45444 (ON CA), 73 O.R. (3d) 401 (C.A.), leave to appeal to the S.C.C. ref'd, [2005] S.C.C.A. No. 50, rev'g (2003), 2003 CanLII 72353 (ON SCDC), 65 O.R. (3d) 492 (Div. Ct.).
[^45]: Hodge v. Neinstein, 2017 ONCA 494 at para. 114; Pro-Sys Consultants Ltd. v. Microsoft Corporation, 2013 SCC 57 at para. 112; Western Canadian Shopping Centres Inc. v. Dutton, 2001 SCC 46 at para. 54.
[^46]: Harrington v. Dow Corning Corp., 2000 BCCA 605, [2000] B.C.J. No. 2237 (C.A.), leave to appeal to S.C.C. ref’d [2001] S.C.C.A. No. 21.
[^47]: Kuiper v. Cook (Canada) Inc., 2020 ONSC 128 (Div. Ct.).
[^48]: Markson v. MBNA Canada Bank, 2007 ONCA 334 at para. 69, leave to appeal to SCC ref’d [2007] S.C.C.A. No. 346; Hollick v. Toronto (City), 2001 SCC 68.
[^49]: 2013 SCC 69 at paras. 24-38.
[^50]: Cloud v. Canada (Attorney General) (2004), 2004 CanLII 45444 (ON CA), 73 O.R. (3d) 401 at para. 52 (C.A.), leave to appeal to the S.C.C. ref'd, [2005] S.C.C.A. No. 50, rev'g (2003), 2003 CanLII 72353 (ON SCDC), 65 O.R. (3d) 492 (Div. Ct.).
[^51]: Markson v. MBNA Canada Bank, 2007 ONCA 334; Hollick v. Toronto (City), 2001 SCC 68.
[^52]: Musicians’ Pension Fund of Canada (Trustee of) v. Kinross Gold Corp., 2014 ONCA 901; AIC Limited v. Fischer, 2013 SCC 69; Hollick v. Toronto (City), 2001 SCC 68.
[^53]: R.G. v. The Hospital for Sick Children, 2017 ONSC 6545, aff’d 2018 ONSC 7058 (Div. Ct.), leave to appeal to C.A. dismissed March 15, 2019. See also Bennett v. Lenovo , 2017 ONSC 1082; Dennis v. Ontario Lottery and Gaming Corp. 2010 ONSC 1332, aff’d 2011 ONSC 7024, aff’d 2013 ONCA 501, leave to appeal refused [2013] S.C.C.A. No. 373; Loveless v. Ontario Lottery and Gaming Corp., 2011 ONSC 4744; Williams v. Mutual Life Assurance Co.; Zicherman v. Equitable Life Insurance Co. of Canada 2003 CanLII 48334 (ON CA), [2003] O.J. No. 1160 and 1161 (C.A.), aff’g 2001 CanLII 62770 (ON SCDC), [2001] O.J. No. 4952 (Div. Ct.), which aff’d (2000), 2000 CanLII 22704 (ON SC), 51 O.R. (3d) 54 (S.C.J.); Mouhteros v. DeVry Canada Inc., 1998 CanLII 14686 (ON SC), [1998] O.J. No. 2786 (Gen. Div.) with respect to the preferable procedure criterion and the balance between common and individual issues.
[^54]: 2018 ONSC 6315.
[^55]: Drady v. Canada (Minister of Health), 2007 CanLII 27970 (ON SC), [2007] O.J. No. 2812 at paras. 36-45 (S.C.J.); Attis v. Canada (Minister of Health), [2003] O.J. No. 344 at para. 40 (S.C.J.), aff'd [2003] O.J. No. 4708 (C.A.).