Ontario overtime class actions: A map for certification?

Laura Fric, Lauren Tomasich

Mar 20, 2015

Canadian Employment Law Today

(Recap)

“When is an overtime misclassification case not a misclassification case?” asked Justice Edward P. Belobaba in Baroch v. Canada Cartage, a recent overtime class action decision. His answer: “When it is framed as a complaint about the systemic policies or practices of the defendant employer.”

Ontario has seen a significant development in the case law surrounding overtime class actions in the past several years. In Justice Belobaba’s view, this case law has resulted in a clear delineation of what is certifiable and what is not.

While every case turns on its unique facts and the evidence supporting common issues, Ontario’s class action jurisprudence – for now – provides plaintiffs with a map to certification. The plaintiff employee’s counsel, in this case, used this map to frame the case for certification and was not successful. However, it is unclear how far certification within the confines of this framework can get a class. As noted by Belobaba, the mere fact of a systemically unfair overtime policy does not equate to damages, it remains to be seen whether an overtime class action certified on the basis of “systemic” practices can effectively be determined in a common issues trial or whether damages can or should be awarded to the entire class. Justice Belobaba left those questions open for the trial judge to decide.

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