In Le Feuvre v Enterprise Rent-A-Car Canada Company, 2022 ONSC 4136, the Ontario Superior Court of Justice dismissed the plaintiff’s motion for certification of a proposed employment misclassification class action. Justice Morgan’s decision, released July 15, 2022, provides helpful guidance on the importance of the factual basis for a common claim. Justice Morgan also addresses the need for a viable methodology for certifying an aggregate damages claim.
Background
This class action was commenced on behalf of a national class of Branch Rental Managers, Assistant Branch Rental Managers, or Station Managers employed by the Defendant. The Plaintiff claimed that class members are entitled to overtime pay, which hourly non-managerial employees are eligible to receive but managerial employees are not. The Plaintiff alleged that, although the positions are classified as managerial by the Defendant, they have job functions and duties that are indistinguishable from non-managerial positions.
There was a complicated factual background to this certification motion, with both the Plaintiff and Defendant submitting affidavits from putative class members describing their job functions.
The Plaintiff’s affiants were class members who mainly worked in smaller branches. They described having supervision over only a few employees and spending 65%-90% of their time on non-managerial functions such as serving customers and washing and parking cars.
The affidavits submitted by the Defendant were largely from putative class members in larger centres who supervise many employees and focus their time on managerial tasks like financial and fleet management. The Defendant affiants submit that they spend only 10%-30% of their time on non-managerial functions.
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