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."
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