Class actions in the realm of employment law are a relatively new but growing field. Class actions in employment law are an ideal way for workers to have access to justice. Not only do they allow employees to maintain anonymity and prevent reprisals from their employer, but they also allow recovery of small amounts for employees, for claims that would not be financially viable for individuals to bring on their own.
This article explores a few changes and trends being seen in employment law class actions.
RECENT CHANGES TO THE CLASS PROCEEDINGS ACT
In October 2020, a number of major amendments to the Class Proceedings Act, 2002 (“CPA”) came into effect in Ontario. The goal of these amendments was to make Ontario’s class actions regime more efficient and fair for both plaintiffs and defendants.
One of the most significant changes to the CPA in the 2020 amendment was an addition to the certification test. For a claim to proceed as a class action, the Court must first determine whether it meets the requirements for certification. One of these requirements is that a class action be the “preferable procedure” for the resolution of the common issues for the class.
The 2020 amendment added the requirement that not only a class action is the preferable procedure, but that a class action is “superior to all reasonably available means of determining the entitlement of the class members to relief or addressing the impugned conduct of the defendant” and that the questions of law or fact that are common to the class outweigh the individual issues. This requirement is a heightened hurdle for plaintiffs to overcome for their action to be certified. In the employment context, this factor requires the employee to show that a class action is superior to bringing an individual action, complaint to the Ministry of Labour or a Canada Revenue Agency assessment.
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