Singh v. RBC Insurance Agency Ltd., 2023 ONSC 1439

COURT FILE NO.: CV-19-00618043-00CP

DATE: 20230302

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

Jeremy Devereux and Ted Brook, for the defendant RBC Insurance Agency Ltd.

Paul J. Martin and Pavel Sergeyev, for the defendant Aviva General Insurance Company

HEARD: February 13 and 14, 2023

REASONS FOR DECISION

NATURE OF THE MOTION AND OVERVIEW

Nature of the motion

[1] The proposed representative plaintiff, Deval Trivedi (“Trivedi”)[^1] brings a motion for an order certifying this action as a class proceeding pursuant to s. 5 of the Class Proceedings Act, 1992, S.O. 1992, c. 6 (the “CPA”).[^2] The defendants, RBC Insurance Agency Ltd. (“RBC IA”) and Aviva General Insurance Company (“Aviva General”) oppose the motion.

Overview

[2] The proposed class action arises out of the alleged failure of the defendants to pay vacation and public holiday pay to Property & Casualty Insurance Advisors, Field Sales (the “P&C Advisors”) who worked for RBC General Insurance Company (“RBC General”) from November 1, 2012 to June 30, 2016,[^3] and for RBC IA from July 1, 2016 until the date notice is delivered to the class.

[3] P&C Advisors earned both salary and variable compensation. All P&C Advisors were subject to the same compensation policy (the “Compensation Policy”) which stated that “[a]ll Variable Compensation components of the Plan have been established at a level that includes both Vacation Pay and Statutory Holiday Pay.”

[4] The P&C Advisors allege that they were not paid vacation and public holiday pay on top of their variable compensation, in breach of the employment standards legislation (the “ESL”) of each of the seven provinces where they were employed: Alberta, Ontario, Quebec, Newfoundland and Labrador, New Brunswick, Nova Scotia, and Prince Edward Island (the “Provinces”). The plaintiff alleges that the terms of the Compensation Policy violate the ESL, which requires that variable compensation be treated as wages for the purposes of calculating the required vacation and public holiday pay.

[5] For the reasons that follow, I grant the motion for certification against RBC IA, subject to modifications to the common issues and class definition set out in these reasons.

[6] I also find that (i) the Claim does not disclose a cause of action for Trivedi under s. 5(1)(a) against Aviva General and (ii) there is no basis in fact for Trivedi to be an adequate representative plaintiff under s. 5(1)(e) for the claim against Aviva General. Neither the pleadings nor the record rebuts the presumption that Trivedi’s claim against Aviva General is statute-barred.

[7] Consequently, I certify the class action against Aviva General, subject to modifications to the common issues and class definition set out in these reasons, but such certification is conditional upon Class Counsel bringing a motion within 100 days for the appointment of a representative plaintiff who can plead and provide a basis in fact for a claim which is not statute-barred against Aviva General.

[8] At present, I do not order the defendants to produce records listing the P&C Advisors. Class Counsel shall attempt to locate a new representative plaintiff for the claim against Aviva General. However, a motion may be brought by Class Counsel to seek such relief if required, and I will consider the record and law on that issue at that time.

FACTS

Procedural background

[9] On April 12, 2019, Singh commenced his proposed class action. On July 20, 2019, he delivered his motion for certification.

[10] On December 9, 2019, Aviva General delivered its statement of defence. RBC IA has not yet delivered its defence.

[11] On January 20, 2020, in Singh v. RBC Insurance Agency Ltd., 2020 ONSC 182, I dismissed a motion by Aviva General to have its proposed summary judgment motion heard before the certification motion.

[12] On May 8, 2020, Aviva General delivered its responding motion record. On May 15, 2020, RBC IA delivered its responding motion record.

[13] On September 9, 2020, I released the Conflict Reasons. Consequently, Trivedi (instead of Singh) is now proposed as the representative plaintiff.

Evidence at the hearing

[14] The plaintiff filed affidavit evidence from three P&C Advisors, Singh, Trivedi, and Tomi Boxall (“Boxall”),[^4] who worked for both RBC General and RBC IA during the relevant time periods.

[15] RBC IA filed affidavits from (i) Sarabjeet Bhaura, the current Head of Human Resources for RBC IA and (ii) Sean Bartman (“Bartman”), the previous Head of Human Resources for RBC IA.

[16] Aviva General filed an affidavit from Daniel Davies (“Davies”), the Chief People Officer of Aviva Canada.

The acquisition of RBC General by Aviva Canada and the formation of RBC IA

[17] Prior to July 1, 2016, RBC General was a subsidiary of Royal Bank of Canada (“RBC”), a Canadian chartered bank. RBC General was a property and casualty insurance company that underwrote insurance and sold that insurance to the public through its employees licensed as insurance agents, including P&C Advisors, a role created effective November 1, 2012.

[18] Effective July 1, 2016, Aviva Canada, through a subsidiary, purchased RBC General (the “Acquisition”). Aviva Canada is a subsidiary of Aviva plc, a UK-based multinational insurance company.

[19] However, Aviva Canada did not acquire RBC General’s insurance sales and distribution business. Prior to the completion of the Acquisition, that business component of RBC General was transferred to a new entity, RBC IA, a wholly owned subsidiary of RBC. Aviva Canada only acquired the insurance underwriting and claims handling business of the former RBC General.

[20] At or around that time, RBC General’s name was changed to Aviva General, and it continued to operate as a property and casualty insurance company. Since the sale, RBC has held no ownership interest in RBC General (renamed as Aviva General).

[21] As of July 1, 2016, the P&C Advisors ceased to be employees of RBC General and became employees of RBC IA. All P&C Advisors were advised of this change in writing prior to July 1.

[22] The P&C Advisors entered into new contracts of employment with RBC IA. They did not enter into an employment agreement with Aviva General or any other Aviva-related entity following the Acquisition.

[23] Aviva General continues to operate as a licensed insurance company in Ontario and elsewhere in Canada and offers branded property and casualty insurance products to members of the public, both through Aviva Canada’s licensed insurance agents and through other third-party corporate insurance agencies, including RBC IA.

[24] Unlike Aviva General, RBC IA is not an insurance company. It is licensed as a corporate insurance agency to sell insurance products underwritten by insurance companies. Since the Acquisition, RBC IA has sold property and casualty insurance products underwritten by Aviva General. Individuals employed by RBC IA as insurance agents offer those property and casualty insurance products to the public.

[25] There is no common ownership between Aviva General (or any other Aviva Canada related entity) and RBC IA (or any other RBC-related entity). Both entities are subsidiaries of two separate publicly traded financial institutions.

The proposed class

[26] The proposed class comprises (i) former RBC General P&C Advisors in each of the Provinces from November 1, 2012 until June 30, 2016, and (ii) current and former RBC IA P&C Advisors in each of the Provinces from July 1, 2016 until the date when the certification notice is delivered to the class.

[27] The proposed class period begins on November 1, 2012, when the P&C Advisors began to earn commissions and the Compensation Policy was put into effect.

Compensation of the P&C Advisors

[28] The P&C Advisors were paid both (i) a fixed annual base salary and (ii) performance-based “variable compensation”.

[29] The variable compensation was based on certain bonuses or commissions that would be available depending on various factors set forth in the Compensation Policy.

[30] The average salary of P&C Advisors was $46,617.67 in 2019 and $44,973.18 in 2020. Trivedi’s salary was $50,000 and Singh’s salary ranged from $35,000 to $47,000 at different times.

[31] The average variable compensation for the P&C Advisors was $9,861.77 in 2019 and $10,529.94 in 2020. Trivedi’s variable compensation was approximately $130,000 per year. Singh’s variable compensation for 2018 was $10,618.91.

The Compensation Policy

[32] RBC IA compensates the P&C Advisors based on the Compensation Policy, which governs all P&C Advisors.

[33] The Compensation Policy states under the heading “Miscellaneous” that:

(i) “As an Advisor, you are expected to use time off for rest and relaxation throughout the year in keeping with applicable RBC policy. Your vacation entitlement is based on your position level and will increase according to the length of service as outlined in the applicable RBC policy”; and

(ii) “All Variable Compensation components of the Plan have been established at a level that includes both Vacation Pay and Statutory Holiday Pay.” [Emphasis added.]

[34] The Compensation Policy provides a mathematical calculation of earnings that sets out total compensation. That total compensation calculation does not include any calculation for vacation and public holiday pay.

Vacation and public holidays for P&C Advisors

[35] The entitlement of P&C Advisors to vacation days is set out in the RBC IA Vacation Policy (the “Vacation Policy”). The policy at RBC General, prior to July 1, 2016, was the same. Under the Vacation Policy, P&C Advisors are entitled to 15 days of vacation when they commence employment plus one floater day off and a second floater day off for P&C Advisors in Ontario and Quebec where Remembrance Day is not a holiday. Therefore, P&C Advisors are entitled to 16 or 17 days of vacation when they commence employment.

[36] In 2018, Singh took the equivalent of 21 days of vacation. Trivedi took the 17 days to which he was entitled under the Vacation Policy.

[37] P&C Advisors in Ontario received a day off with salary for each of the nine Ontario public holidays. Ontario P&C Advisors also received an additional day off with salary for the August Civic Holiday, even though it is not a public holiday.

[38] The base salary of P&C Advisors continues to be paid while they are off work for vacation (including floater days) and public holidays.

Calculation of monies paid to P&C Advisors during vacation and public holiday time

[39] RBC IA prepared, as Schedule “C” to its factum, a chart setting out its calculations of the vacation and public holiday pay paid to Singh and the average P&C Advisor (the “Schedule C Calculations”).

[40] As I set out in more detail below, the Schedule C Calculations do not address the legal issue of whether the plaintiff’s theory is correct that by failing to pay vacation and public holiday pay on variable compensation, RBC IA and Aviva General (named RBC General at the relevant time) are in breach of ESL requirements since the P&C Advisors received less total compensation under this approach.

Evidence relevant to common employer/joint venture/partnership claim

[41] Bartman’s evidence is that from July 1, 2016, the P&C Advisors were employed only by RBC IA, and that RBC IA had sole control over their hiring, promotion, dismissal, hours of work, location of work, compensation, vacation pay, holiday pay, and benefits. The P&C Advisors did not receive any payments or benefits from Aviva General.

[42] Davies’ evidence is that:

[Singh’s] sole relationship with Aviva General Insurance related to his having been licensed under the Ontario Insurance Act to sell the insurance products of Aviva General Insurance Company and, in turn, having Aviva General Insurance agree to sponsor his license and the licenses of other RBC Insurance Agency Ltd.’s agents to do so.

[43] Davies further states that:

(i) there is no common ownership between Aviva General (or any other Aviva related entity) and RBC Insurance (or any other RBC related entity), and both entities are subsidiaries of two separate publicly traded financial institutions;

(ii) P&C Advisors of the former RBC General had their employment transferred to RBC IA and were employed and compensated exclusively by RBC IA after July 1, 2016; and

(iii) the only relationship between Aviva General and the P&C Advisors post-Acquisition was in relation to Aviva General having sponsored their licenses under the Ontario Insurance Act, R.S.O. 1990, c. I.8, a legislative requirement for any insurance agent to sell insurance products underwritten by Aviva General.

[44] In cross-examination, Davies confirmed that Aviva General’s relationship with RBC IA is no different than its relationship with any other broker licensed to sell insurance products underwritten by Aviva General.

[45] None of the affiants gave evidence that they entered into an employment agreement with Aviva General after the Acquisition or that they understood themselves to have been simultaneously employed by both RBC IA and Aviva General following July 1, 2016. On cross-examination, Trivedi acknowledged that:

(i) he was remunerated for his work as a P&C Advisor by “RBC” and received T4 forms from “RBC” on an annual basis;

(ii) Aviva General did not compensate him for any of his business expenses;

(iii) his business card made no reference to Aviva[^5] and contained only his name, the name and logo of RBC and the address of his RBC home branch;

(iv) although he was subject to RBC’s code of conduct, he was not subject to any Aviva code of conduct or similar standards;

(v) while he participated in RBC’s group life plan, he did not participate in any employment benefits program offered by Aviva;

(vi) Aviva was not involved in the pension plan that he was enrolled in; and

(vii) other P&C Advisors at RBC IA sold life insurance products even though Aviva General does not underwrite life insurance products in Ontario.

STATUTORY FRAMEWORK

[46] The statutory framework for payment of vacation and public holiday pay is similar under the ESL of each of the Provinces.[^6]

[47] Using Ontario’s Employment Standards Act, 2000, S.O. 2000, c. 41 (the “ESA”) as an example, I set out the statutory framework below.

[48] Under ss. 24-32 of the ESA, employees must be paid additional public holiday pay above and beyond their regular pay. For employees with variable compensation, this pay is to be an average of what they made over the preceding 20 days: see ESA, s. 24(1)(a).

[49] Employees must also be paid additional vacation pay above and beyond their regular pay. This pay must be at least four percent of the wages earned by the employee for those with less than five years’ seniority and six percent for those with greater than five years’ seniority: see ESA, s. 35.2.

[50] While employers can offer more than the statutory minimums, no employee may opt out of a benefit of the ESA unless the employee receives a greater benefit: see ESA, s. 5(1). Employers are required to keep detailed records of their vacation time payments: see ESA, s. 15.1.

ANALYSIS

[51] The defendants raise six objections to certification of all or part of the Claim:

(i) The common employer/joint venture/partnership objections: The defendants submit that the “common employer”, “joint venture” or “partnership” allegations in the Claim do not disclose a cause of action and there is no basis in fact for those claims, and as such they do not satisfy the requirements under s. 5(1)(a) and (c). In response to this objection, Class Counsel withdrew those claims at the hearing.

(ii) The non-ESL cause of action objections: The defendants acknowledge that the allegation that they breached the ESL discloses a cause of action. However, the defendants submit that (a) the Claim does not disclose a cause of action for breach of contract, breach of trust, or unjust enrichment, and (b) there is no basis in fact for those claims as a common issue, and as such these claims do not satisfy the requirements under s. 5(1)(a) and (c).

(iii) The starting date of the class definition objection: The defendants submit that the starting date of the class definition under s. 5(1)(b) should be restricted to April 12, 2017, i.e., the two-year limitation period prior to the date Singh commenced this proposed class action.

(iv) The class-wide losses objections: The defendants submit that certification must be denied in its entirety because there is no basis in fact for class-wide losses, and as such, the Claim does not satisfy the requirements under s. 5(1)(c) or the preferable procedure requirement under s. 5(1)(d).

(v) The aggregate damages objection: The defendants submit that there is no basis in fact for the proposed common issue (“PCI”) as to whether damages can be assessed in the aggregate, and as such, PCI 7 does not satisfy the requirements under s. 5(1)(c).

(vi) The Aviva General Ragoonanan objections:[^7] Aviva General submits that certification against it must be denied because (i) the Claim does not disclose a cause of action for Trivedi under s. 5(1)(a) against Aviva General and (ii) there is no basis in fact for Trivedi to be an adequate representative plaintiff under s. 5(1)(e) because neither the pleadings nor the record rebuts the presumption that Trivedi’s claim against Aviva General is statute-barred.

[52] I now review each of the objections summarized above.

The common employer/joint venture/partnership objections under ss. 5(1)(a) and (c)

[53] As discussed above, Class Counsel withdrew the common employer, partnership, and joint venture allegations during the hearing. Consequently, I address this issue only briefly below.

[54] The pleadings did not disclose a cause of action for any of the common employer, partnership, or joint venture claims.

[55] The pleadings only set out bald assertions that RBC IA and Aviva Canada (whose role was to acquire RBC General and rename it as Aviva General), were (i) “common employers subsequent to the Acquisition”, (ii) “exercised control” over the plaintiff, (iii) “formed a partnership following the Acquisition” which was a “strategic partnership with a view to making a profit for both organizations”, and (iv) were “in a formal or informal partnership or joint venture”. These conclusory pleadings do not set out the material facts to support the claims.

[56] There are no facts pleaded to establish a “common employer” by “an intention to create an employer/employee relationship”, as required under the test in O’Reilly v. ClearMRI Solutions Ltd., 2021 ONCA 385, 460 D.L.R. (4th) 487, at paras. 50 and 70.

[57] Trivedi and Singh led no evidence in their affidavits to establish any intention of Aviva General and RBC IA to be common employers. Both Singh and Trivedi recognized RBC IA as their employer after the Acquisition and gave no evidence that would link Aviva General to them, other than sponsoring the licenses of the P&C Advisors, which does not create a common employer relationship. There is no basis in fact for the common employer allegation.

[58] The pleadings do not disclose a “joint venture” relationship. A joint venture must have a contractual basis and there is no pleading that Aviva General and RBC IA entered into a joint venture agreement. None of the hallmarks of a joint venture are pleaded, such as joint ownership of property, a right of mutual control or management, or a sharing of profits or losses: see Canlan Investment Corp. v. Gettling (1997), 1997 4126 (BC CA), 37 B.C.L.R. (3d) 140 (C.A.), at para. 31. Further, there is no evidence from the plaintiff to establish some basis in fact for the joint venture allegation.

[59] Finally, the pleadings do not disclose a “partnership” relationship. A partnership exists only where (i) a business (ii) is carried on in common (iii) with a view to a profit: see Mahendran v. 9660143 Canada Inc., 2022 ONSC 3908 (Div. Ct.), at paras. 23-24. None of these hallmarks are pleaded. There is no allegation that Aviva General and RBC IA carried on a single business by owning property or by sharing profits or losses. Further, there is no evidence from the plaintiff to establish some basis in fact for the partnership allegation.

[60] For the above reasons, Class Counsel properly withdrew these allegations from the Claim, and withdrew PCIs 8 and 9 based on those claims.

The non-ESL cause of action objections under ss. 5(1)(a) and (c)

The applicable law

[61] The applicable test under s. 5(1)(a) is summarized by Perell J. in Price v. H. Lundbeck A/S, 2018 ONSC 4333, at para. 87, rev’d on other grounds, 2020 ONSC 913 (Div. Ct.):

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. [Footnotes omitted.]

[62] Consequently, the court must look at the material facts pleaded to determine if there is a cause of action. Simply stating that there is a cause of action does not satisfy the requirement for the s. 5(1)(a) test.

[63] Conversely, if the material facts support such causes of action, adding an allegation that there is a breach of contract, breach of trust or unjust enrichment does not assist the analysis. As the court held in Markevich v. Canada, 2003 SCC 9, [2003] 1 S.C.R. 94, at para. 27, a cause of action is “only a set of facts that provides the basis for an action in court”.

Application of the law to the present case

[64] The defendants do not challenge that the Claim discloses a cause of action for breach of the ESL. In Kinch v. Dufferin Communications Inc. (c.o.b. Evanov Radio Group), 2015 ONSC 6610, 342 O.A.C. 18 (Div. Ct.), the court held that a variable compensation policy that included vacation and public holiday pay was not valid since the employer had not satisfied the court that (i) the employee was aware of vacation pay entitlements under the Canada Labour Code, R.S.C. 1985, c. L-2 (the “CLC”) and (ii) by agreeing to the arrangement, the employee was receiving a benefit that was either equal to or greater than those entitlements: at paras. 9, 16.

[65] In Kinch, the court, at para. 19, relied on the decision of the British Columbia Supreme Court in Atlas Travel Services Ltd. v. Director of Employment Standards (1994), 1994 2331 (BC SC), 99 B.C.L.R. (2d) 37, in which the court considered a similar variable compensation policy and held, at para. 9, that the defendant employer’s interpretation would lead to an “absurd” result since employees who work longer would, in effect, be paid less variable compensation (before ESL vacation and public holiday pay) then their colleagues with less seniority.

[66] In the present case, Trivedi has pleaded that (i) the defendants were required to pay vacation and public holiday pay in accordance with the ESL, (ii) he was not paid vacation and public holiday pay on his variable compensation, (iii) the Compensation Policy violates the ESL, and (iv) the P&C Advisors are owed additional compensation as a result of the ESL breaches.

[67] Consequently, Trivedi has pleaded a cause of action for breach of the ESL. The defendants submit, however, that the Claim does not disclose a cause of action for breach of contract, breach of trust, and unjust enrichment. I do not agree.

[68] As discussed above, it is not necessary for Trivedi to plead a breach of contract, breach of trust, or unjust enrichment. The issue before the court is whether the facts pleaded disclose such claims.

[69] In Kumar v. Sharp Business Forms Inc. (c.o.b. Bell Label Ticket & Tag), 2001 28301 (ON SC), [2001] O.T.C. 326 (S.C.), the court certified a breach of contract claim for non-payment of ESA entitlements and rejected the defendant’s submission that the claim could only arise under the ESA: at para. 8. The court held, at para. 36, that “the minimum standards mandated by the ESA in respect of wages (including vacation pay, public holiday pay and overtime pay) are implied terms of the employment contract of the plaintiff.”

[70] Courts have consistently certified breach of contract claims for non-payment of ESA entitlements: see also Curtis v. Medcan Health Management Inc., 2021 ONSC 4584, at paras. 58-60, certified on appeal, 2022 ONSC 5176 (Div. Ct).

[71] With respect to the breach of trust claims, the trust provisions of the ESL are pleaded, and a breach is pleaded since the plaintiff alleges that the P&C Advisors were not paid vacation and public holiday pay on top of the variable compensation. Consequently, a cause of action for breach of trust is pleaded: see Curtis (2021), at paras. 58-60.

[72] Similarly, claims for unjust enrichment based on ESA breaches have been certified. If there is no juristic reason for the employer’s enrichment (i.e., if the defendants are found to have breached the ESL and the Compensation Policy is struck down), then the defendants would be enriched, and the class would suffer a corresponding deprivation.

[73] Consequently, I follow the approach taken in cases such as Montaque v. Handa Travel Student Trip Ltd. (c.o.b. I Love Travel), 2020 ONSC 6459, at paras. 12-13; Omarali v. Just Energy Group Inc., 2016 ONSC 4094, at paras. 58, 61, leave to appeal ref’d, 2016 ONSC 7096 (Div. Ct.); and Baroch v. Canada Cartage, 2015 ONSC 40, [2015] C.L.L.C. para. 210-028, at para. 21, leave to appeal ref’d, 2015 ONSC 3227, [2015] C.L.L.C. para. 210-052 (Div. Ct.), in which the courts all certified unjust enrichment claims based on ESL entitlement.

[74] The above analysis applies equally to the s. 5(1)(c) objections raised for these causes of action. By leading (i) documentary evidence as to the existence of the Compensation Policy and (ii) the affidavit evidence of P&C Advisors that they were not paid separate vacation or public holiday pay on their variable compensation, there is some basis in fact to support the existence of each of the breach of contract, breach of trust, and unjust enrichment claims.

[75] Further, the uncontested evidence that the same Compensation Policy applied to all P&C Advisors provides some basis in fact for the commonality requirement.

[76] Consequently, I dismiss these objections by the defendants.

[77] At the hearing, I advised Class Counsel that PCIs 1 and 2 would need to be redrafted to make clear that the allegation of breach of contract relates only to the failure to pay vacation and public holiday pay as required by the ESL. Consequently, I order that PCIs 1 and 2, which currently raise general issues of contractual terms and breaches, be consolidated into one common issue: are the defendants (or any defendant) in breach of contract as a result of failing to pay the class members vacation pay and public holiday pay as required by the ESA or comparable provisions in the applicable province?

[78] Finally, I note that while the defendants did not submit that the cause of action for failing to keep proper records under the ESA did not disclose a cause of action, they still submitted in their factum that there was no basis in fact under s. 5(1)(c) for PCIs 3 and 4 which raised those issues, and that the plaintiff had not pleaded a breach of the ESA requirement to keep records.

[79] However, all the ESL impose requirements on employers to keep accurate records of vacation and public holiday pay. Consequently, if the defendants were required to and failed to pay the vacation and public holiday pay, ESL record-keeping requirements could be breached because the records, if they exist, would not be accurate.

[80] Also, whether the defendants kept any records of vacation and public holiday pay is a common issue for which there is a basis in fact.

[81] At the hearing, the only objection of the defendants to the record-keeping PCIs before the court was to change the reference in PCI 3 from “hours worked” to “vacation and public holiday pay”, so that PCIs 3 and 4 could properly reflect the issue before the court. Class Counsel agreed to that change, and I agree that it is appropriate.

The objection as to the starting date of the class definition under s. 5(1)(b)[^8]

[82] The defendants ask the court to restrict the starting date of the class definition to April 12, 2017, two years before Singh commenced the present class action. I do not agree.

[83] For the reasons that follow, I find that a discoverability issue remains available to the class members, since a court could find an implied representation by RBC General and RBC IA in the Compensation Policy that including vacation and public holiday pay in variable compensation complied with the ESL.

[84] First, I address the general principles of certification law applicable to a class definition.

[85] Second, I consider the general principles applicable to temporal limits of a class definition set out in Amyotrophic Lateral Sclerosis Society of Essex County v. Windsor (City), 2015 ONCA 572, 387 D.L.R. (4th) 603.

[86] Third, I review the case law which has considered the temporal limits issue in the context of ESL-entitlement class actions.

[87] Fourth, I apply the relevant principles to the facts of the present case.

[88] Fifth, in the event that the discoverability principle is found not to apply to extend the temporal limit of the class definition beyond the statutory limitation period, I briefly review the arguments raised by the plaintiff that, in any event, there are no applicable limitation periods to the Claim.

General principles of certification law

[89] Under general principles of certification, a plaintiff must establish “some basis in fact” for the proposed class definition. The test to establish “some basis in fact” was summarized by Perell J., in Price, at paras. 81-83, as requiring a “low evidentiary standard” which does not engage a “preliminary review of the merits of the claim”:

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. 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. 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) providing access to justice for litigants; (2) encouraging behaviour modification; and (3) promoting the efficient use of judicial resources.

The purpose of a certification motion is to determine how the litigation is to proceed and not to address the merits of the plaintiff’s claim; there is to be no preliminary review of the merits of the claim. However, the plaintiff must show “some basis in fact” for each of the certification criteria other than the requirement that the pleadings disclose a cause of action. In the context of the common issues criterion, the “some basis in fact” standard involves a two-step requirement that: (1) the proposed common issue actually exists; and (2) the proposed issue can be answered in common across the entire class.

The “some basis in fact” test 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. In particular, there must be a basis in the evidence to establish the existence of common issues. 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. [Footnotes omitted; emphasis added.]

[90] Consequently, it is not the role of the court to assess the merits of the plaintiff’s claim on a certification motion. As Strathy J. (as he then was) stated in Penney v. Bell Canada, 2010 ONSC 2801, at para. 45, “[t]here is no assessment of the merits at the certification stage. Certification is a procedural motion focusing on the form of the action.”

[91] Temporal limits on a class definition must be considered in light of the above principles. Restricting the starting date of class definition to the presumptive start of a statutory limitation period constitutes a substantive decision that no class members outside the presumptive limitation period could rely on the discoverability principle. Unless there is no basis in fact to inquire into the applicability of the discoverability principle, such an approach is inconsistent with the “purposive and generous” approach to certification “to give effect to the goals of class actions; namely: (1) providing access to justice for litigants; (2) encouraging behaviour modification; and (3) promoting the efficient use of judicial resources”: Price, at para. 81.

[92] Consequently, if the plaintiff can show some basis in fact for the possibility that the discoverability principle could apply to class members, the court should not assess the merits of such a position. The court must consider the record before it to determine if discoverability could apply to permit class members to bring claims outside the presumptive limitation period.

General principles on temporal limits to a class definition as set out in Amyotrophic

[93] In Amyotrophic, at para. 41, the court set out the general principle that temporal limits based on limitation periods should be imposed only if the plaintiff cannot establish some basis in fact that a factual inquiry is necessary to determine discoverability: “where the resolution of the limitation issue depends on a factual inquiry, such as when the plaintiff discovered or ought to have discovered the claim, the issue should not be decided on the motion for certification”.

[94] If the representative plaintiff has “timely” claims (i.e., those within the presumptive limitation period), the class action can proceed for claims which are presumptively statute-barred but for which there is some basis in fact for discoverability by class members. In Amyotrophic, the court held, at para. 56: “[t]he representative plaintiffs, like many class members, may have claims that are both timely and presumptively time-barred. They have an interest, at least at the present time, in advancing both types of claims. They certainly have an interest with all class members in the common issues of liability and damages.”

[95] The court in Amyotrophic, at paras. 42-43, held that manageability concerns could arise if the class definition extends too far back and engages too many potential class members: “[a]ll parties appear to agree that a class definition stretching back more than four decades may make the proceeding unmanageable. In my view, the temporal boundary of the class can be defined in a rational way by reference to the ultimate limitation period in s. 15(2) of the Limitations Act, 2002, S.O. 2002, c. 24, Sched. B]”.

[96] In the present case, no manageability concerns are raised by the defendants. The evidence is uncontested that even if the class definition began in November 2012 as proposed, the class size would be approximately 458 P&C Advisors, which would be manageable.

Application of the Amyotrophic principles in ESL-entitlement class actions

[97] The defendants did not provide the court with any ESL-entitlement class action in which the court restricted the starting date of the class definition. For the reasons that follow, I find that where there is some basis in fact for the possibility that a class member can establish reliance on an employer’s representation (express or implied) of compliance with ESL, then the possibility of establishing discoverability remains open to class members outside the presumptive limitation period.

[98] The general principle relied upon by the defendants is not in dispute: if a party knows all the material facts necessary to bring an action, “[e]rror or ignorance of the law or legal consequences of the facts does not postpone the running of the limitation period”: see Magill v. Expedia Canada Corp., 2010 ONSC 5247, at para. 66.

[99] Further, reliance on a party’s representation that they have the right to proceed in the impugned manner does not generally postpone running of a limitation period. In Graham v. Imperial Parking Canada Corp (c.o.b. Impark), 2010 ONSC 4982, 74 B.L.R. (4th) 172, at paras. 37, 39, 160-61 and 165-66; leave to appeal refused, 2011 ONSC 991, 85 B.L.R. (4th) 167 (Div. Ct.), at paras. 55-56, the courts applied the above principle summarized in Magill and held that the limitation period ran from the demand for payment, despite a representation in the demand letter, cited at para. 37 of Graham (2010), that “[t]his contract has been upheld in a ruling made by the Federal Court of Appeal”. The courts limited the class to a starting date within the two-year limitation period.

[100] However, neither Graham nor Magill arose in the ESL-entitlement context.

[101] The courts have recognized that despite knowing the material facts about their employment, employees may be able to establish at trial that they did not reasonably know that taking legal action was appropriate if the employer misrepresented, directly or indirectly, that they were complying with ESL. On that basis, the courts have not imposed a temporal limit on the starting date of the class definition in ESL-entitlement cases.

[102] In Fresco v. Canadian Imperial Bank of Commerce, 2022 ONCA 115, 160 O.R. (3d) 173, the defendant bank made “repeated misrepresentations throughout the 16-year class period that the bank's overtime policies complied with federal labour law”: at para. 97, citing Fresco v. Canadian Imperial Bank of Commerce, 2020 ONSC 6098, at para. 33, per Belobaba J. The Court of Appeal upheld Belobaba J.’s decision and did not restrict the starting date of the class to the two-year limitation period. The court reviewed Belobaba J.’s finding that the representation could be viewed by a common issues judge as delaying discoverability, and held, at paras. 96-98:

The discoverability issue rested, for the motion judge, on the third branch: whether class members knew taking legal action was appropriate. This turns on the interpretation of ss. 5(1)(a)(iv) and 5(1)(b).

The motion judge found that the “appropriate means” requirement applied so that the limitations period would “not begin to run if taking legal action was not reasonably appropriate given the plaintiff’s circumstances.” He gave two main reasons for concluding that the “appropriate means” test was not met. First, “some (and perhaps many) of the class members feared reprisal and were afraid that they might lose their job if they sued the bank for unpaid overtime”. Second, “some (and perhaps many) of the class members reasonably relied on the bank's repeated misrepresentations throughout the 16-year class period that the bank's overtime policies complied with federal labour law.”

The motion judge found that these reasons combined to require individual assessments of when discoverability was met for an individual claimant, consistent with the general rule that “the viability of a limitations defence is best determined on an individual basis with individual assessments - hence its usual relegation to the individual hearings phase.” The motion judge concluded:

The defendant bank has not established on the evidence that the limitation period that applies to every class member’s claim (outside the limitation periods noted in its Schedule) can be determined in common on a class-wide basis and that individual discoverability is not needed. In my view, the evidence strongly suggests that individual discovery will be needed in at least some cases to fairly determine whether the class member delayed in taking legal action because they were in reasonable fear of losing their job; because they reasonably relied on the bank's misrepresentations about the legality of its overtime policy; or because they were otherwise impeded by the bank's systemic policies and practices.

[Footnotes omitted; emphasis added.]

[103] The Court of Appeal, at paras. 99-101, did not accept that the reprisal factor could serve as the basis to extend the temporal limits of a class definition but held that the misrepresentation could do so, given the employer-employee relationship:

We are not persuaded that the first factor, that “some (and perhaps many) of the class members feared reprisal and were afraid that they might lose their job if they sued the bank for unpaid overtime” is a valid basis on which the limitations period can be suspended. However, there is merit in the second factor of reasonable reliance on misrepresentation. The applicable law is set out in this court’s decision in Presley v. Van Dusen. Sharpe J.A. discussed the governing principles, and then referred to one of the “guiding principles” expressed by Pardu J.A. in Presidential MSH Corp. v. Marr Foster & Co. LLP: “Resort to legal action may be ‘inappropriate’ in cases where the plaintiff is relying on the superior knowledge and expertise of the defendant, which often, although not exclusively, occurs in a professional relationship.”

Sharpe J.A. added:

Moreover, reliance on superior knowledge and expertise sufficient to delay commencing proceedings is not restricted to strictly professional relationships. I acknowledge that the previous cases where this court has made a finding that it was reasonable for the plaintiff to rely on the defendant’s superior knowledge and expertise have concerned defendants belonging to traditional expert professions…. However, recent Superior Court decisions have applied the superior knowledge and expertise prong of Presidential MSH to persons who are members of non-traditional professions or who are not professionals at all.

He pointed to a case involving a franchisor-franchisee relationship, and another involving portfolio managers and investors. The categories are not closed.

On the facts of this case, it is quite plausible, as the motion judge found, that some class members reasonably relied on the Bank’s misrepresentations that its overtime policies complied with federal labour law. The influence of this factor on individual class members is really a matter best left to individual assessment, as this court noted in the earlier certification decision. [Footnotes omitted; emphasis added.]

[104] The approach of the Court of Appeal in Fresco to permit an employer’s misrepresentation to possibly delay discoverability of an ESL-entitlement claim is consistent with its earlier decision in Evangelista v. Number 7 Sales Ltd., 2008 ONCA 599, 240 O.A.C. 389.[^9]

[105] In Evangelista, the respondent employee had not been paid public holiday or vacation pay since 1996, but the trial judge held that the limitation period did not run until the employee became aware of his entitlement, which arose when the employer first paid vacation pay to the employee in December 2003. O’Connor A.C.J.O. held, at paras. 45-46:

As to the Limitations Act, 2002, the appellant first paid the respondent vacation pay in December 2003. The trial judge accepted the respondent’s evidence that he was not aware of his entitlement to vacation or public holiday pay before that time. The trial judge held that the respondent’s lack of awareness as to his entitlement went to the issue of discoverability. As a result, the respondent’s action, which was commenced in July 2004, was well within the two year limitation period in the Limitations Act, 2002.

I see no basis to interfere with the trial judge’s conclusion that the respondent’s entitlement to public holiday and vacation pay should not be reduced on the basis of the operation of a limitation period.

[106] In Omarali (S.C.), Belobaba J. dismissed, at para. 65, the submission of the defendants to restrict the class to those persons employed as of May 4, 2013, two years before the statement of claim was issued on May 4, 2015. Belobaba J. held that representations of the employer as to independent contractor status could extend discoverability. He stated, at para. 66:

I am not persuaded that the class should be narrowed at this stage of the proceeding. The defendants may well prevail on the limitations point but more evidence on the issue of reasonable discoverability is needed, particularly where the defendants themselves were continually representing to the sales agents through words and actions (e.g. pay slips) that they were ICs and not employees. On these facts, I prefer to follow the case law as summarized in the leading text on class actions, that “the limitations issue should not be resolved on a pleadings motion or on a motion for certification.” [Emphasis added.]

[107] The Divisional Court approved Belobaba J.’s approach, noting that “[i]t was reasonable to leave the issues of time bars and discoverability to be determined later on the merits, rather than to determine these issues on a certification motion, which is procedural in nature”: Omarali (Div. Ct.), at para. 6.

[108] Consequently, even though a potential class member in Omarali would have known all the facts required to establish that they were entitled to ESL benefits as an employee, the implied misrepresentation of the employer that they had properly classified them as an independent contractor could allow potential class members to raise a discoverability issue to be determined after certification.

[109] Consistent with the above case law, the courts in other ESL-entitlement cases have not limited the starting date of the class definition.

[110] In Fulawka v. Bank of Nova Scotia, 2012 ONCA 443, 111 O.R. (3d) 346, the court certified a class of more than 5,000 employees who worked in the bank’s branch offices from January 1, 2000, based on the alleged ESL non-compliance of the employer who required pre-approval when employees regularly worked overtime. The overtime pay was represented to be “based on Canada Labour Code guidelines”: at para. 22.

[111] In Heller v. Uber Technologies Inc., 2021 ONSC 5518, 73 C.C.E.L. (4th) 45, the court certified a class size of 366,359 Uber drivers from January 1, 2012 until March 1, 2021, who were allegedly misclassified as independent contractors: at para. 72. The court rejected the defendants’ submission that a temporal limit based on the presumptive limitation period should be imposed: see Heller, at paras. 175-79.

[112] In Le Feuvre v. Enterprise Rent-A-Car Canada Co., 2022 ONSC 4136, the issue was whether the employees were improperly classified as “managers” and as such were deprived of overtime pay. The court, at paras. 21-22, certified the class which began in 2010:

As the Court of Appeal observed in Fresco v. Canadian Imperial Bank of Commerce, 2022 ONCA 115, at para 101, the question of whether a class member can rebut the presumption of discoverability “is really a matter best left to individual assessment”. That individualized analysis can take place after certification of the class and as part of the ultimate exercise in determining who meets or does not meet the class definition. In the meantime, and for the purposes of the certification motion itself, the Court of Appeal has concluded that in the workplace context the employees’ reliance on their employer’s representations as to the legality of its overtime polices can be a basis to suspend applicable limitation periods: Fresco, at paras 99-101.

Accordingly, limitation periods, which turn on the issue of discoverability, are best left for another post-certification day. I agree with the Plaintiff that there is some basis in fact for the contention that the employer's representations of the legality of the management labels here might impact on the applicable limitation period. In all, I am confident that the Plaintiff has presented facts on which to base a viable class that passes the section 5(1)(b) hurdle. [Emphasis added.]

[113] In Navartnarajah v. FSB Group Ltd., 2021 ONSC 5418, class members who sold personal and commercial insurance products as “producers” were classified by the employer as independent contractors. The class members alleged that they were employees and were entitled to ESL benefits such as minimum wage, overtime pay, vacation pay and holiday pay. The court accepted the plaintiff’s submission for “a class definition that extends back substantially more than two years”, certifying a class that began work in 2004: at paras. 11-12.

[114] Similarly, in Lee v. Allstate Insurance Co. of Canada, 2023 ONSC 8, the court certified a class of variable compensation employees who worked for the defendant from September 1, 2009: at para. 29.

Application of the law to the present case

[115] The position of the defendants would preclude any P&C Advisor outside the two-year limitation period from relying on the doctrine of discoverability to claim damages.

[116] In all the ESL-entitlement cases discussed above, the class members know all the facts necessary to give rise to a cause of action, subject to the legal consequences of those facts. In the independent contractor misclassification cases, the class members know whether they are directed as to how, when, and where to work by the purported employer, whether they are disciplined by the purported employer, and all facts that would be relevant to the question of who operates the business.

[117] In the overtime cases, the class members know that they are employees who are not paid overtime.

[118] In the vacation and public holiday pay cases based on variable compensation, the employees know that they are not paid separately on top of the variable compensation, since the compensation policy on its face states that vacation and public holiday pay are included in the variable compensation.

[119] In all the above ESL-entitlement cases, the proposed class members were not aware of the legal consequences of the particular situation. However, given the purported misrepresentation by the employer upon which an employee could rely, the courts did not impose a temporal limit (based on the statutory limitation period) on the start of the class definition.

[120] RBC General (from November 1, 2012 until June 30, 2016) and RBC IA (from July 1, 2016 onwards) repeatedly represented to class members that their variable compensation pay was “established at a level that includes Vacation Pay and Statutory Holiday Pay”. Given that the ESL entitlements are an implied term of every employment contract, the representation by RBC General and RBC IA may be considered by a common issues court to imply compliance with the ESL, just as in the above cases in which discoverability was left to a common issues trial.

[121] If neither RBC General nor RBC IA paid vacation or public holiday pay on variable compensation as required under the ESL (which is the basis of the proposed class action), then there is some basis in fact for discoverability if a factual inquiry is required to determine whether the P&C Advisors reasonably relied on the defendants’ misrepresentation and, as such, would not reasonably know that “taking legal action was appropriate”: Fresco, at para. 96. See also paras. 99-101.

[122] There is some basis in fact that RBC General and RBC IA did not pay vacation or public holiday pay as required under the ESL. As such, there is some basis in fact that the representation in the Compensation Policy was false or misleading. Consequently, if a P&C Advisor can establish reliance on the representation, such reliance could serve as a basis for the “appropriate means” requirement to postpone the limitations period.

[123] The defendants submit that the Fresco principle applies only when the plaintiff has pleaded discoverability. They note that in Amyotrophic, at para. 12, “the plaintiffs pleaded a discoverability/concealment issue.”

[124] I do not agree that a pleading of discoverability is required to engage the Fresco and Amyotrophic principles. In particular, the court in Amyotrophic held that the representative plaintiffs “may have claims that are both timely and presumptively time-barred” but can act as a representative plaintiffs since “[t]hey have an interest, at least at the present time, in advancing both types of claims” and “certainly have an interest with all class members in the common issues of liability and damages”: at para. 56.

[125] It is not the pleading which engages the discoverability principle, but rather, as stated by the court in Amyotrophic at para. 41, the principle that “where the resolution of the limitation issue depends on a factual inquiry, such as when the plaintiff discovered or ought to have discovered the claim, the issue should not be decided on the motion for certification”. Having provided some basis in fact that the Compensation Policy stated that vacation and public holiday pay was included in the variable compensation and given the settled law that ESL entitlements are an implied term of any employment contract, a discoverability issue may arise if a class member can establish reliance on the representation.

[126] Further, in both cases relied upon by the court in Amyotrophic, at para. 41, for the above principle, there is no indication that there was a pleading of reliance on a representation. The court considered only whether there was a discoverability issue based on the factual inquiry in the case before it: see Serhan (Trustee of) v. Johnson & Johnson (2006), 2006 20322 (ON SCDC), 85 O.R. (3d) 665 (Div. Ct.), at paras. 140-45, leave to appeal to C.A. refused (unreported), leave to appeal to S.C.C. refused, [2006] S.C.C.A. No. 494; McKenna v. Gammon Gold Inc., 2010 ONSC 1591, at paras. 38-39, varied on other grounds, 2011 ONSC 3782, 87 C.C.L.T. (3d) 123 (Div. Ct.).

[127] For the above reasons, the resolution of the limitation issue depends on a factual inquiry into discoverability, which can be based on the defendants’ alleged misrepresentation. Consequently, I find that the starting date of the class is November 1, 2012.

Other limitation issues raised by the plaintiff

[128] If the Amyotrophic principle as applied in Fresco and the other cases cited above were found not to apply, I would not accept the plaintiff’s remaining submissions that no limitation period could apply at all. I address these arguments briefly below.

[129] The plaintiff asserts, based on Kinch, that limitation periods for all the class members’ claims run from the end of the employment relationship. However, the decision in Kinch arose under s. 188 of the CLC which states that “[w]hen an employee ceases to be employed, the employer shall pay to the employee within 30 days after the day on which the employee ceases to be employed (a) any vacation pay then owing by the employer to the employee under this Division in respect of any prior completed year of employment” (emphasis added).

[130] In Kinch, the court held that this statutory language indicated that “all outstanding vacation pay owing to the employee for any of the years of employment must be paid within thirty days of her last day of employment”: at para. 22.

[131] However, the present case relies on provincial ESL. Section 11(5) of the ESA provides for payment no later than seven days after the employment ends for any wages to which the employee is entitled. Section 36(1) requires that vacation pay be paid “before the employee commences his or her vacation.” Under s. 38, “[i]f 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)”. Consequently, there is no cumulative right under the ESA to claim vacation pay which has not been paid over many years, unlike under the CLC.[^10]

[132] The plaintiff further submits that no limitation period applies to claims for vacation pay under the ESL because the monies are held in a deemed trust. The plaintiff relies on the Ontario Labour Relations Board’s decision in Weiliang Chen v. CE Innovations Ltd. and Director of Employment Standards, 2019 80994. However, that decision considered the limitation period to bring an administrative complaint to the Ministry of Labour under the ESA. The Board made no finding as to the limitation period applicable to a civil claim in the courts.

[133] In New Tec Building Envelopes Ltd. v. Deciantis Construction Ltd., 2015 ONSC 5462, 340 O.A.C. 127 (Div. Ct.), at para. 13, the court held that the limitation periods in the Limitations Act apply to civil actions based on statutory deemed trusts:

The Construction Act [R.S.O. 1990, c. C. 30] sets out a comprehensive procedure relating to liens, holdback funds and trust funds among other things. Strict compliance with the Act is required. The Act sets out a specific point in time when holdback funds are payable as noted above. The appellant is correct that a payor holds holdback funds in trust for a payee. Limitation periods provide reassurance to parties that they will not be exposed to claims after a certain period of time has passed. The appellant suggests that there is no limitation period with respect to making a claim for holdback fund because they are trust funds. This position is contrary to the principles of certainty and finality which underlie the Limitations Act. Accordingly, I find that the trial judge made no error in this regard. [Emphasis added.]

[134] For the above reasons, if the Amyotrophic principle was found not to apply such that the temporal limit sought by the defendants could be imposed, I would not accept the plaintiff’s remaining submissions that no limitation period could apply at all.

The objections that there is no basis in fact for class-wide losses under s. 5(1)(c) and (d)

[135] The defendants rely on the Schedule C Calculations prepared by RBC IA to submit that there is no basis in fact to establish class-wide losses, and as such there is no “core of commonality” under s. 5(1)(c).

[136] The defendants further submit that each individual class member would be required to bring an individual action given the lack of class-wide losses. Consequently, the defendants submit that a class action is not the preferable procedure under s. 5(1)(d) since there is no benefit to a class action and the class members could bring an ESL administrative claim.

[137] I do not agree. There is a basis in fact that there were class-wide losses, as established by the Schedule C Calculations themselves.

[138] I first consider the objection under s. 5(1)(c) that there is no basis in fact for a class-wide damages claim and then consider the related objection under s. 5(1)(d) that a class action is not the preferable procedure.

The objection under s. 5(1)(c) that there is no basis in fact for a class-wide damages claim

[139] In this section, I first review the competing theories of the parties as to how losses arising from the alleged failure to pay vacation and public holiday pay should be calculated.

[140] Second, I apply the competing theories by way of an example based on the 2019 average salary and variable compensation earned by a P&C Advisor entitled to two weeks of vacation pay under the ESL.

[141] Third, I apply the example and theories to the general principle that the court should not consider the merits of the case on certification.

(i) The competing theories of the parties

[142] The plaintiff’s theory is based on total compensation that an employee should receive if vacation and public holiday pay is properly paid under the plaintiff’s interpretation of the ESL.

[143] The plaintiff submits that variable compensation is to be treated no differently than salary under the ESL, and as such, the defendants were required to pay vacation and public holiday pay based on four percent of total compensation (for a P&C Advisor entitled to two weeks of vacation). The plaintiff submits that the defendants breached that ESL obligation by not paying any vacation and public holiday pay on the variable compensation component of the P&C Advisors’ wages.

[144] The plaintiff submits that while RBC General and RBC IA chose to provide more vacation time then statutorily required, they were still required to pay vacation pay for the additional vacation time based on the combined salary and variable compensation. In effect, by providing more vacation days but breaching the alleged statutory requirement to calculate vacation pay both on salary and variable compensation, the defendants caused an even greater loss to the P&C Advisors who received an additional week of vacation but were paid only for salary during that time.

[145] Put differently, the plaintiff’s position is that the defendants cannot comply with the ESL by paying less during vacation and public holidays than required but providing more vacation and public holiday time than required at the lower (salary only) amount.

[146] Finally, the plaintiff’s theory is based on the premise that the Compensation Policy is either invalid since it arguably permits the defendants not to pay separate vacation and public holiday pay on variable compensation,[^11] or that in any event, the defendants breached the ESL by not paying vacation and public holiday pay “on top of” the variable compensation.

[147] The defendants take a different approach. The defendants submit that by providing P&C Advisors with at least 15 days of vacation, the total amount they receive as vacation and public holiday pay is greater than the amount the class members would have received if the defendants had limited the P&C Advisors to the two weeks of statutorily mandated vacation time and pay based on total compensation (salary and variable compensation). Pursuant to the Compensation Policy, the P&C Advisors were expected to use the vacation entitlement “in keeping with applicable RBC policy”.

[148] Consequently, the defendants do not consider the total compensation earned by a P&C Advisor over the 52-week work year, and the 3 weeks of vacation. Instead, they rely on the total amount paid during the 15-day vacation period.[^12] On that basis, even though the P&C Advisor was only paid salary during the three weeks of vacation, the total amount of such pay would be greater than for two weeks even if those two weeks had been paid on the basis of wages and variable compensation.

(ii) Application of the Schedule C Calculations to the theories of the parties using the example of the 2019 average P&C Advisor

[149] The example below is based on the average 2019 earnings of a P&C Advisor statutorily entitled to two weeks’ vacation.

[150] The average P&C Advisor earned $46,617.67 in salary in 2019 ($896.49 per week), and $9,861.77 ($189.65 per week) in variable compensation (for a total of $1,086.14 per week).

[151] I review the calculations under the plaintiff and defendants’ approach.

(a) Calculations under the plaintiff’s approach

[152] Under the plaintiff’s approach, the salary and wages would be combined for purposes of calculating vacation pay, for total wages of $56,479.44.

[153] Consequently, an average P&C Advisor who worked 52 weeks would be entitled to 2 weeks’ vacation pay (at 4 percent of $56,479.44) for $2,259.18. Public holiday pay would be paid on the combined wages, and as such be included in the $56,479.44 amount (assuming the P&C Advisor did not work on the public holidays). Under this approach, the total amount earned by the P&C Advisors over the 54-week period would be $58,738.62.

[154] If the defendants provided an additional week of vacation, then the P&C Advisor would be entitled to an additional $1,086.14, based on one week’s total wages. Consequently, the total compensation earned over the 55-week period for that P&C Advisor would be $59,824.76.

(b) Calculations under the defendants’ approach

[155] In the present example, the P&C Advisor is entitled to the statutory minimum of two weeks holiday pay. The defendants submit that under the plaintiff’s claim, a P&C Advisor would be entitled to $2,259.18 for two weeks’ vacation (based on four percent of total wages). The defendants submit that since they provided three weeks of vacation based on salary, the P&C Advisor received $2,689.48 (three weeks’ salary based only on an annual salary of $46,617.67) over that period, so the P&C Advisor received an additional $430.30 ($2,689.48 less $2,259.18) on top of their statutory entitlement and did not suffer a loss.[^13]

[156] The compensation earned by the P&C Advisor over the 55-week period (52 weeks of work and 3 weeks of vacation) would be $46,617.67 in salary plus $9,861.77 for variable compensation and $2,689.48 for three weeks of vacation. Public holiday pay would be based on salary and as such would be included in the $46,617.67 amount (assuming the P&C Advisor did not work on the public holidays).

[157] Consequently, the total compensation under the defendants’ approach, for the same 55-week period would be $59,168.92, which is $655.84 ($59,824.76 less $59,168.92) less than the total compensation paid under the plaintiff’s approach.

(iii) Analysis

[158] While I set out the above example, my analysis may be subject to other factors and adjustments which may be raised by counsel and considered at a common issues trial.

[159] The law is settled that the court should not decide the merits of competing approaches on a certification motion. The only issue before the court is whether there is some basis in fact for the damages alleged by the plaintiff.

[160] As discussed above, “[t]here is no assessment of the merits at the certification stage. Certification is a procedural motion focusing on the form of the action”: Penney, at para. 45.

[161] The defendants ask the court to dismiss the certification motion based on their calculation of damages. This would require a deep dive into the theories of the parties, which should not be done on certification. The issue before the court on certification is whether there is a basis in fact for the damages claim.

[162] In Fehr v. Sun Life Assurance Company of Canada, 2018 ONCA 718, 84 C.C.L.I. (5th) 124, at para. 86, the Court of Appeal overturned the certification judge for analyzing the evidence as to whether Sun Life had breached the contract:

[T]he motions judge went beyond determining whether there was “some basis in fact” for the common issue. Rather, he decided the proposed common issue by interpreting the contract and making a finding that there was no breach. This, respectfully, was an error in principle. This determination was a task for the judge at the common issues trial, not the judge dealing with certification. [Emphasis in original.]

[163] I follow the approach in Fehr and do not decide the damages issue on the merits. The plaintiff has provided a basis in fact for the alleged underpayment, from (i) the affiants who state that they were not paid vacation and public holiday pay on top of their variable compensation, (ii) the Compensation Policy which confirms that approach, and (iii) the Schedule C Calculations themselves, which confirm class-wide losses based on the plaintiff’s theory.

[164] Consequently, there is a basis in fact for the plaintiff’s theory that the defendants’ approach breaches the ESL requirements to pay vacation and public holiday pay. Under the plaintiff’s approach, the P&C Advisors received less total compensation than they should have if the vacation and public holiday pay were calculated in accordance with ESL (i.e., according to the plaintiff, “on top of” variable compensation).

[165] In effect, the defendants ask the court to accept, on the merits, that there is no basis in fact for any class-wide damages. However, the defendants’ approach focuses only on vacation and public holiday paid, while the plaintiff’s approach focuses on total compensation that ought to have been paid under the ESL. Choosing amongst those approaches is not permitted on certification, which is a procedural motion on the low threshold of the some basis in fact test.

[166] For the above reasons, I dismiss this objection.

The objection under s. 5(1)(d) that a class action is not the preferable procedure

[167] The defendants rely on the alleged failure to establish class-wide losses as the basis to submit that a class action is not the preferable procedure. However, for the reasons I discuss above, there is a basis in fact for class-wide losses.

[168] The issue of whether there has been a breach of the ESL (and as such, either a breach of contract, breach of trust or unjust enrichment) is a common issue which significantly advances the litigation. The Compensation Policy is either valid or it is not. The defendants either complied with the ESL or they have not. It is the employer’s conduct which is the subject of review on a class action and such conduct does not depend on any individual conduct of a P&C Advisor.

[169] No evidence is required from an individual P&C Advisor to determine whether the employer’s conduct complies with the ESL.

[170] In Curtis (2022), also a case based on the alleged failure of an employer to pay vacation and public holiday pay on variable compensation (in that case, commissions) under the ESA, the court reviewed the applicable case law and held that “class proceedings have repeatedly been found to be the preferable procedure for employment and ESA-related cases”: at para. 54.

[171] I rely on the analysis in Curtis (2022) and find that there is some basis in fact that the s. 5(1)(d) requirement has been met. In brief:

(i) Access to justice would be promoted by a class action since the individual claims would be relatively modest (as shown by the analysis of the Schedule C Calculations).

(ii) Behaviour modification would be advanced if the class action was successful, since the defendants continue to take the position that they (a) have not breached the ESL, (b) can rely on the Compensation Policy, and (c) have not underpaid the P&C Advisors. If individual employees are required to address these alleged wrongs, there will be little financial incentive for employers to follow the requirements demanded by the legislation.

(iii) Judicial economy would occur by avoiding repetitive litigation based on the same common issues.

[172] There is some basis in fact that a class proceeding would be a fair, efficient, and manageable method of advancing the claim. The common issues can be addressed for all class members in a manner that is fair to all the parties, as the court found in Curtis (2022).

[173] For the above reasons, I dismiss this objection.

The objection under s. 5(1)(c) that damages cannot be assessed in the aggregate

[174] The defendants submit that damages cannot be determined in the aggregate because “it would be necessary to subtract the excess amounts paid to the class member for salary while on vacation or holiday from any amounts that the Court finds should have been paid for vacation and holiday pay on the class member’s variable compensation”, which would “require individualized enquiries for each class member.” I do not agree.

[175] The defendants rely on Omarali (S.C.), in which the court certified a class action concerning whether the class members had been improperly classified as independent contractors paid commissions, or whether they were employees entitled to minimum wage, overtime pay, and vacation and public holiday pay under the ESA: at paras. 1-2.

[176] In Omarali (S.C.), the court found that aggregate damages were not available since individualized inquires would be necessary to “subtract the ‘commissions received’ amount from the ‘ESA benefits that should have been paid’ amount”: at para. 95.

[177] However, the issue in Omarali (S.C.) does not arise in the present case.

[178] All P&C Advisors were paid vacation and public holiday pay based on their salaries, and that amount is not challenged as contrary to the ESL. The only issue is whether vacation and public holiday pay should have been paid on top of variable compensation. Consequently, any additional amounts owed on variable compensation are to be added to (not subtracted from) the salary-based vacation and public holiday pay already received by the class members. Individual enquiries are not required for each class member.

[179] The court on certification of aggregate damages must be satisfied that there is a basis in fact to establish a reasonable likelihood that the conditions for an aggregate assessment would be satisfied at a common issues trial: see Markson v. MBNA Canada Bank, 2007 ONCA 334, 85 O.R. (3d) 321, leave to appeal refused, [2007] S.C.C.A. No. 346, at paras. 42-44.

[180] The court certifying a common issue for aggregate damages does not determine whether they are appropriate in the case. That issue is determined by the common issues judge, and only if liability is established. In Pro-Sys Consultants Ltd. v. Microsoft Corporation, 2013 SCC 57, [2013] 3 S.C.R. 477, the court held, at para. 134:

The question of whether damages assessed in the aggregate are an appropriate remedy can be certified as a common issue. However, this common issue is only determined at the common issues trial after a finding of liability has been made. The ultimate decision as to whether the aggregate damages provisions of the CPA should be available is one that should be left to the common issues trial judge. Further, the failure to propose or certify aggregate damages, or another remedy, as a common issue does not preclude a trial judge from invoking the provisions if considered appropriate once liability is found.

[181] Pursuant to s. 24(1) of the CPA, aggregate damages may be ordered in whole or in part if: (a) monetary relief is claimed on behalf of some or all 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 or a part of the defendant's liability to some or all class members can be reasonably determined without proof of individual claims.

[182] In the present case, if liability is established, the only remaining issue would be the quantum of damages.[^14] It is the defendants who have the evidence of alleged damages, based on their payroll records.

[183] Consequently, there is a reasonable possibility that a common issues judge could determine aggregate damages without proof of individual claims for at least those claims within the statutory limitation period, and possibly for the other class members if they can toll the limitation period based on discoverability.

[184] For the above reasons, I dismiss this objection.

The Aviva General Ragoonanan objections under s. 5(1)(a) and (e)

[185] Aviva General submits that certification against it must be denied because (i) under s. 5(1)(a), the Claim fails to disclose a cause of action as it is statute-barred against Aviva General, and (ii) under s. 5(1)(e), Trivedi is not a proper representative plaintiff since there is no basis in fact to rebut the presumption that his claim against Aviva General is statute-barred.

[186] There is no dispute that the Claim discloses a cause of action against RBC IA. Trivedi brought the Claim within the presumptive limitation period against RBC IA. Under the principle stated in Amyotrophic, at para. 56, Trivedi can bring both the timely claims and those which are presumptively statute-barred against RBC IA.

[187] However, since Class Counsel withdrew any claims related to the common employer/partnership/joint venture, Aviva General cannot stand in the shoes of RBC IA for claims arising as of July 1, 2016. Instead, Aviva General can only be responsible for claims arising from breach of the ESL for vacation and public holiday pay during the period from November 1, 2012 until June 30, 2016, when RBC General was the employer, prior to its acquisition by Aviva Canada (and renaming as Aviva General).

[188] Consequently, under the Ragoonanan principles, Trivedi must establish both that (i) the Claim (without the common employer/partnership/joint venture allegations) discloses a cause of action against Aviva General under s. 5(1)(a) and (ii) he is an adequate representative plaintiff under s. 5(1)(e) with a basis in fact for a claim against Aviva General.

[189] First, I address the general principles under the leading cases of Ragoonanan and Hughes.

[190] Second, I consider each of the objections raised by Aviva General.

[191] Third, I consider the appropriate process to address the Ragoonanan issues raised in the present case.

The applicable law on the Ragoonanan principles

[192] In Vecchio Longo Consulting Services Inc. v. Aphria Inc., 2021 ONSC 5405, 157 O.R. (3d) 92, at paras. 128-30, Perell J. set out a summary of the Ragoonanan principles:

The so-called Ragoonanan principle is that for a cause of action against a defendant to be certified under the Class Proceedings Act, 1992, there must be a representative plaintiff who personally has a cause of action against that defendant.

As developed by the cases, discussed below, a corollary of the Ragoonanan principle is that if a plaintiff has a cause of action against one defendant but no cause of action against a co-defendant, then for the cause of action against the co-defendant to be certified, there must be another plaintiff with a cause of action against the co-defendant and who thus would qualify to be a representative plaintiff against the co-defendant.

As developed by the cases, discussed below, it is more a premise of and not so much a corollary of the Ragoonanan principle, but if a plaintiff has no cause of action against any defendant, then he or she does not qualify to be a representative plaintiff against any defendant.

[193] At para. 7(a) of Vecchio, Perell J. cites Ragoonanan and Hughes as the source of the principles summarized above.

[194] Similarly, the court in Stone v. Wellington County Board of Education (1999), 1999 1886 (ON CA), 120 O.A.C. 296 (C.A.), at para. 10, leave to appeal refused, [1999] S.C.C.A. No. 336, dismissed the class action because the claim of the proposed representative plaintiff was statute-barred:

Where a representative plaintiff, for reasons personal to that plaintiff, is definitively shown as having no claim because of the expiry of a limitation period, he or she cannot be said to be a member of the proposed class. The continuation of the action in those circumstances would be inconsistent with the clear legislative requirement that the representative plaintiff be anchored in the proceeding as a class member, not simply a nominee with no stake in the potential outcome.

[195] I now address each of the Ragoonanan objections raised by Aviva General.

The objection under s. 5(1)(a) that the Claim does not disclose a cause of action against Aviva General

[196] Trivedi’s claim against Aviva General for amounts owed to P&C Advisors who worked for RBC General is presumptively statute-barred, since he stopped working for RBC General as of July 1, 2016 but did not commence the Claim[^15] until April 12, 2019.

[197] There is no pleading in the Claim that Trivedi relied on the alleged misrepresentation made directly or indirectly by Aviva General in the Compensation Policy, i.e. that the defendants complied with the ESL by including vacation and public holiday pay in the variable compensation.

[198] Aviva General pleaded a limitation defence in its statement of defence served on December 9, 2019. Despite a subsequent amendment to his pleading, Trivedi does not allege that (i) as of July 1, 2016, he relied on an alleged misrepresentation of RBC General, or (ii) as such, he did not appreciate that he should pursue a claim.

[199] Trivedi did not file a Reply.

[200] Consequently, under s. 5(2) of the Limitations Act, Trivedi is presumed to have discovered his claim against Aviva General when he received his last commission payment from RBC General and, in any event, no later than July 1, 2016.

[201] In these reasons, I have reviewed the law that permits the court to extend the starting date of a class definition when there is some basis in fact for discoverability. I did not limit the starting date of the class period given that there was some basis in fact for the court to find a representation that could extend discoverability.

[202] However, if the only claim a proposed representative plaintiff has against a particular defendant is presumptively statute-barred, and there is no pleading to address a limitations defence, the Ragoonanan principle applies so that the proposed class action cannot be certified under s. 5(1)(a) as against that defendant. The court ought not permit a class action to proceed against a defendant when it is statute-barred if the pleadings are taken as true.

[203] The plaintiff requests leave to amend the Claim (if necessary) to plead reliance on the alleged misrepresentation from the Compensation Policy.

[204] Leave to amend a statement of claim should be denied “only in the clearest of cases”, if a pleading contains “radical defects … incapable of being cured by amendment”: Piedra v. Copper Mesa Mining Corporation, 2011 ONCA 191, 332 D.L.R. (4th) 118, at para. 96. See also paras. 94-95, 97-98.

[205] In this case, Trivedi has already been cross-examined as to his knowledge of the alleged breach by the defendants to fail to pay vacation and public holiday pay, and his lack of reliance on any representation by the defendants. I discuss this evidence in more detail below under the objection by Aviva General pursuant to s. 5(1)(e) that Trivedi cannot be a representative plaintiff for the claim against Aviva General since there is no basis in fact that his personal claim can proceed based on discoverability.

[206] Consequently, if Trivedi remains the only representative plaintiff, I do not grant leave to amend the Claim to plead reliance on the alleged misrepresentation because even if leave were granted, certification would still be denied under s. 5(1)(e).

[207] However, if another representative plaintiff is put forward to address any claims against Aviva General, the new proposed representative plaintiff may seek leave to amend the Claim to plead reliance on the alleged misrepresentation.

[208] Such an amended pleading, if permitted after a hearing in which Aviva General may raise any objections to the proposed new representative plaintiff or the amended claim, may resolve the s. 5(1)(a) requirement. Further, the issue of whether the new representative plaintiff has put forward any basis in fact to rebut the presumptive limitation period against Aviva General may still need to be considered under the s. 5(1)(e) requirement, if opposed by Aviva General based on the evidentiary record at that time.

[209] For the above reasons, I accept the s. 5(1)(a) objection, but grant the plaintiff leave to bring a motion to amend the pleading if a new representative plaintiff is proposed for the claim against Aviva General.

The objection under s. 5(1)(e) that Trivedi is not a proper representative plaintiff since there is no basis in fact to rebut the presumption that his claim against Aviva General is statute-barred

[210] Aviva General submits that there is no basis in fact that Trivedi is an adequate representative plaintiff under s. 5(1)(e), because he cannot rebut the presumption that his claim against Aviva General is statute-barred. For the reasons that follow, I agree with this objection.

[211] Trivedi did not offer any affidavit evidence as to why he delayed in bringing the action. He led no evidence as to any reliance on the alleged misrepresentation of RBC General that the Compensation Policy complied with the ESL requirements.

[212] Trivedi was cross-examined by counsel for Aviva General. I summarize the relevant evidence as follows:

(i) Trivedi acknowledged receiving copies of an updated version of the Compensation Policy as provided by RBC IA.

(ii) Trivedi “was part of the [RBC General and RBC IA] organization for the last 10 years” and “every now and then we have raised this matter with RBC” regarding “why we’ve not been paid on our variable compensation or vacation pay and all that. So, that sort of thing is always in our mind back then, because that’s never been answered to the best of our knowledge and interpretations” (emphasis added).

(iii) These matters were raised in conferences with RBC “management” or a “senior person” (a “manager or regional vice president and head of the department”) in which Trivedi “asked questions about that”, and “once a year or twice a year definitely it was a discussion by us with them.”

(iv) Trivedi agreed with the statement that “whatever you were told initially [in response to the inquiries] you were not satisfied with that response” (emphasis added).

(v) Trivedi also agreed with the statement that “right up until the time you left, which I understand was June of 2017, I gather that was still in your mind an unresolved issue” (emphasis added).

(vi) Trivedi had similar discussions with other P&C Advisors “on and around the time when we were going on vacations” since “these issues are always on everybody’s mind that when … especially producers who are making a good amount of money. When they were planning their vacations, and coming after the vacations when they saw their pay cheque” so “there was kind of a discussion in our eight o’clock morning meetings” (ellipsis in original; emphasis added).

(vii) Trivedi also stated: “I can say when I was present in some of the meetings it’s been raised by all my team members within the branch I worked for” since it was a “live issue” (emphasis added).

[213] Consequently, there is no basis in fact for Trivedi to rebut the statutory presumption that his claim against Aviva General was statute-barred. Not only did Trivedi understand the terms of the Compensation Policy, but he also disagreed with it, believed it to be wrong, challenged it frequently, and did not accept the responses from RBC General and RBC IA. In such circumstances, he did not claim to, nor could he, rely on any purported misrepresentation in the Compensation Policy. He knew all the facts required to bring an action and had no basis to extend discoverability due to the purported misrepresentation.

[214] Based on the evidence and the Ragoonanan principles, I accept the objection of Aviva General and find that Trivedi is not a proper representative plaintiff.

Process to address Ragoonanan issues

[215] There are two issues which arise in addressing the Ragoonanan concerns discussed above.

[216] First, the court must consider whether to conditionally certify the class action against Aviva General.

[217] Second, if the first issue is answered in the affirmative, the court must consider whether either or both defendants should be ordered to produce records to assist Class Counsel in locating a new representative plaintiff.

[218] I address each issue below.

(i) Conditional certification

[219] In Vecchio, Perell J. held that if the Ragoonanan principle applied such that the proposed representative plaintiff had no cause of action against a defendant, then the “conventional answer to the problems posed in practice by the Ragoonanan principle” was that “Class Counsel should … be given an opportunity to recruit an eligible representative plaintiff to assert causes of action” against that particular defendant, if there is “some basis in fact to conclude” that another class member could serve as a representative plaintiff against the particular defendant: at paras. 126, 182.

[220] I follow the principle summarized in Vecchio, at para. 183, and find that Class Counsel should be provided with an opportunity to locate a new representative plaintiff who may have a claim which is not statute-barred against Aviva General. In Vecchio, Perell J. ordered, at para. 9(e), the certification of the claim “conditional upon Class Counsel bringing a motion within 100 days for the appointment of a representative plaintiff for a class of Class Members that purchased Aphria shares in the primary market during the Class Period.”

[221] A similar approach was also followed in Graham (2010), at para. 201, where the court held that “[t]here is, however, undoubtedly Class Members with claims and, therefore, I will certify the class action conditional on the substitution of a new representative plaintiff to be added by motion on notice to Impark or on consent of the parties.”

[222] In Sondhi v. Deloitte Management Services LP, 2017 ONSC 2122, the court followed a similar approach, at para. 46:

The certification motion is adjourned under s. 5(4) of the CPA for 60 days so that the class definition problem can be addressed and the proposed representative plaintiff can be replaced. Counsel should arrange to re-attend before or shortly after the 60 day mark. If the required amendments have not been effected by class counsel within this time period, the motion for certification will be dismissed.

[223] Following the approach in the above case law, I certify the class action against both RBC IA and Aviva General, subject to the modifications to the proposed common issues and class definition as set out above. Certification against Aviva General is conditional upon Class Counsel bringing a motion within 100 days (or as otherwise scheduled at a case conference or on consent) for the appointment of a representative plaintiff for a class of P&C Advisors that were employed by RBC General from November 1, 2012 to June 30, 2016. If Class Counsel does not meet this timetable, the motion for certification will be dismissed as against Aviva General.

[224] It may be practical to hold a single hearing to address the issues of leave to amend and any s. 5(1)(a) and (e) objections (if a new representative plaintiff is proposed), but that is a matter which can be discussed further at a case conference if required.

(ii) Production of records by the defendants

[225] In both Graham and Sondhi, the court did not order the defendants to produce records to assist Class Counsel in locating a plaintiff.

[226] In Vecchio, the court ordered the defendants to produce records to assist Class Counsel. Perell J. relied on evidence that “Class Counsel has had difficulty in identifying and recruiting … [potential] candidates” to be a representative plaintiff: at para. 183.

[227] In Vecchio, the evidence was consistent with the nature of the proposed class action, since it would be difficult for class counsel to identify who might have purchased securities from certain underwriters during the prospectus offering: at para. 183.

[228] There is no evidence before me on this certification motion that Class Counsel would have any difficulty in locating a new representative plaintiff who worked at RBC General during the relevant period. Class Counsel has obtained the evidence of three affiants who worked at RBC General, and there is no reason to believe that Class Counsel could not contact further P&C Advisors who worked with the affiants while at RBC General.

[229] Consequently, at this point in time, I am not prepared to make a Vecchio type order requiring Aviva General or RBC IA to produce employment records of the P&C Advisors so that Class Counsel can contact them.

[230] Further, making an order requiring an employer to disclose employee names and contact information to Class Counsel may raise privacy issues which were not addressed by the parties in preparation for the certification hearing. Such factual and legal issues should be fully considered on a motion to produce the defendants’ records.

[231] It should not be an automatic right of class counsel to compel production of employment records to find a potential representative plaintiff. No such requirement is imposed on defendants before a class action is brought – either a representative plaintiff contacts class counsel or class counsel may find a representative plaintiff for a proposed class action they are considering on behalf of a potential class.

[232] If particular circumstances arise such that Class Counsel cannot find a proposed representative plaintiff for a claim against Aviva General, they may return before me on a motion for such an order and I will consider whether the defendants should be compelled to produce employment records at that time.

ORDER AND COSTS

[233] I certify the class action against RBC IA, subject to the modifications to the proposed common issues and class definition as set out above. Certification against Aviva General is conditional based on the terms as discussed above. If Class Counsel does not meet the timetable or is otherwise unable to satisfy the conditions for certification against Aviva General, the motion for certification will be dismissed as against Aviva General.

[234] There was divided success on this motion. Further, the issue of whether the class action will be certified as against Aviva General must await the result of a subsequent motion for leave to amend the Claim and name a new representative plaintiff. The additional motion will likely raise further costs issues involving the plaintiff and Aviva General.

[235] Consequently, it is not appropriate to fix costs at this time. Following the conclusion of the remaining steps in this matter, counsel shall convene a case conference so that a process can be put into place to address costs of the present certification motion and any subsequent related motions, unless counsel can agree to costs.

GLUSTEIN J.

Date: 20230302

COURT FILE NO.: CV-19-00618043-00CP

DATE: 20230302

ONTARIO

SUPERIOR COURT OF JUSTICE

KABIR SINGH

Plaintiff

AND:

RBC INSURANCE AGENCY LTD. and AVIVA GENERAL INSURANCE COMPANY

Defendants

reasons for decision

Glustein J.

Released: March 2, 2023

[^1]: In Singh v. RBC Insurance Agency Ltd., 2020 ONSC 5368 (the “Conflict Reasons”), I found that Monkhouse Law (“Class Counsel”) was in a conflict of interest in seeking to act for the proposed representative plaintiff Kabir Singh (“Singh”) in both his individual action and the class action. After that decision, Class Counsel ceased to act for Singh in his individual action and Trivedi was proposed as the representative plaintiff. A draft Amended Statement of Claim (the “Claim”) is before the court on this motion which names Trivedi as the plaintiff. [^2]: Unless otherwise stated, all statutory references in these reasons are to the CPA. [^3]: As discussed in more detail at paras. 18-20 below, Aviva Canada Inc. (“Aviva Canada”) acquired RBC General as of July 1, 2016 and changed the company’s name to Aviva General. Counsel for Aviva General advised that on the current record, Aviva General would be responsible for any claims during the pre-acquisition period. [^4]: RBC IA objected to the admissibility of Boxall’s evidence because she was not available for cross-examination due to a health issue. Both the plaintiffs and RBC IA agree that there is no relevant evidence in Boxall’s affidavit that is not contained in either the Singh or Trivedi affidavits. Consequently, I do not address whether Boxall’s evidence is admissible, as submitted by the plaintiff (with the court considering the weight of the evidence based on a lack of cross-examination), or whether it is inadmissible, as submitted by RBC IA. [^5]: I refer to the name “Aviva” when counsel for Aviva General used that term in the Trivedi cross-examination. [^6]: The statutory framework of Ontario’s ESL is set out at paras. 48-50 of these reasons. For the statutory framework of the other provinces’ ESL, see Employment Standards Code, R.S.A. 2000, c. E-9, ss. 14, 21-22, 34-34.2 and 109 (Alberta’s ESL); Act respecting labour standards, C.Q.L.R. c. N-1.1, ss. 46, 52, 55, 67-69 and 74 (Quebec’s ESL); Labour Standards Act, R.S.N.L. 1990, c. L-2, ss. 8-9, 15, 25 and 37 (Newfoundland and Labrador’s ESL); Employment Standards Act, S.N.B. 1982, c. E-7.2, ss. 18, 21-22 and 24-25 (New Brunswick’s ESL); Labour Standards Code, R.S.N.S. 1989, c. 246, ss. 10, 15, 32, 35-36 and 42 (Nova Scotia’s ESL); Employment Standards Act, R.S.P.E.I. 1988, c. E-6.2, ss. 5.3, 10-12 and 15-15.1 (Prince Edward Island’s ESL). [^7]: The “Ragoonanan principles” are based on the decisions in Ragoonanan Estate v. Imperial Tobacco Canada Ltd. (2000), 2000 22719 (ON SC), 51 O.R. (3d) 603 (S.C.) and in Hughes v. Sunbeam Corp. (Canada) Ltd. (2002), 2002 45051 (ON CA), 61 O.R. (3d) 433 (C.A.), leave to appeal refused, [2002] S.C.C.A. No. 446. In brief, these principles establish that if there is no representative plaintiff with a claim against a particular defendant, the action cannot be certified as against that defendant. [^8]: The defendants also objected to the language which defined the class to include P&C Advisors as “employees of RBC INSURANCE AGENCY and AVIVA GENERAL … since November 1, 2012 until the date when the notice is delivered to the class”, since it presupposed the legal conclusions that both defendants could be common employers responsible for the entire period. At the hearing, I agreed with the defendants and held that the class definition should be changed to define the P&C Advisors as those who were employed by RBC General from November 1, 2012 until June 30, 2016 and employed by RBC IA from July 1, 2016 until the date when the notice is delivered to the class. Such a definition avoids the dispute over which of the parties is liable for any vacation and public holiday pay for the RBC General period, although Aviva General acknowledged that on the record before the court in this motion, it would be responsible for any amounts owed to P&C Advisors who worked at RBC General. [^9]: In Brown v. Procom Consultants Group Ltd., 2021 ONSC 4185, I considered both the Evangelista decision and the approach of this court in Omarali (S.C.) and (Div. Ct.), when considering whether there was a “tenable” claim on a motion for leave to substitute a representative plaintiff. My analysis of those cases at paras. 104-06 of these reasons is taken from Brown, at paras. 16-20. [^10]: There is also no cumulative right to claim vacation pay which has not been paid over many years in the other Provinces’ ESL: see footnote 6 above. [^11]: This approach is similar to the principle that termination clauses which permit an employer not to comply with the ESA are invalid: see Wood v. Fred Deeley Imports Ltd., 2017 ONCA 158, 134 O.R. (3d) 481, at paras. 68-69. [^12]: The defendants acknowledge that the P&C Advisors would have earned less for public holiday pay under their approach since that pay was based only on salary while the plaintiffs submit it should have been paid based on total compensation. However, if the defendants’ theory is accepted at a common issues trial, the Schedule C Calculations still establish a small net profit when vacation and public holiday pay are combined. [^13]: See footnote 12 above. [^14]: Pursuant to the approach in Amyotrophic, some class members may also require individual trials if they seek to rely on discoverability to rebut a presumptive limitation period. [^15]: The Claim was brought by Singh as the proposed representative plaintiff.