As a recent example of the shifting nature of employment law in Ontario, Curtis v. Medcan Health Management Inc. 2022 ONSC 5176 (Medcan), highlights that class proceedings are the preferable procedure for employment and ESA-related cases.
Background and Certification
Medcan involves a group of former and current employees who brought a class action against their former employer and its directors. The plaintiffs alleged that the defendants failed to pay vacation and public holiday pay as required under the Employment Standards Act, 2000, S.O. 2000, c. 41 (“the ESA”) going back to 2003. It was discovered that vacation pay and public holiday pay were being calculated based only on the base salary of its employees. Medcan attempted to remedy the issue through additional payments, but they did not make any payments for the period before 2018, relying on the presumptive two-year limitation period and full and final releases signed by employees.
At the certification stage, the court found that four of the five certification requirements of the Class Proceedings Act (“the CPA”) were met. In considering whether a class action would be a preferable procedure, as required by s. 5(1)(d) of the CPA, the certification judge found that a class action would not be a preferable procedure and that individual court proceedings would be preferable to a class action.
As illustrated in Fischer v. IG Investment Management Ltd., 2013 SCC 69, “The court has to consider the extent to which the proposed class action may achieve the three goals of the CPA, but the ultimate question is whether other available means of resolving the claim are preferable, not if a class action would fully achieve those goals." In Navartnarajah v. FSB Group Ltd., 2021 ONSC 5418, the defendants’ counsel argued that the issues in the action could be dealt with by way of complaints to the Ministry of Labour. However, the court found that this was not a preferable alternative to a class action, as it would exclude at least some members of the class from access to justice, as the Ministry of Labour process is subject to a strict deadline of two years from the date of the infraction alleged against the employer. In Medcan, Justice Nishikawa stated that had the certification judge “considered the ability of individual actions to address the barriers to access to justice, he would have found that individual actions could not address those barriers. The access to justice barriers that could be addressed by means of a class action would be left in place."
Access to Justice and Preferable Procedure - Divisional Court Reasoning
With approximately 2,000 potential class members in Medcan, it is critical to consider the barriers to access to justice in such proceedings. Justice Nishikawa posits that individual claims under the ESA and individual actions offer significantly less effective solutions, failing to achieve the goals of the CPA. This is because litigating individual actions often creates an uneven financial state for the plaintiff, where the cost of the individual process surpasses the sought relief and considerably reduces the likelihood of plaintiffs bringing an individual claim. In the case of Medcan employees, both former and current employees are negatively influenced by these barriers to justice, leaving them fearful of the implications for their employment status should they seek individual actions against Medcan. Evidently, what is often left undiscussed is the psychological and economic implications of access to justice within individual actions, which not only place substantial financial and emotional burden on the plaintiffs but also decrease the number of individuals seeking out action against an employer. In these cases, class actions provide class members with accessible proceedings and level their access to justice by reducing negative economic repercussions and providing the security, reduced emotional turmoil, and knowledge that accompany class proceedings.
Future Implications
Class actions have been found to be the preferable procedure in numerous employment actions, and the Medcan decision further indicates that Ontario courts are increasingly favoring class action proceedings to address employment-related claims, indicating that there is a very high bar to showing that they are not the preferred procedure.
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