What Will be Determined at the Common Issues Trial?

One of the features of a class action lawsuit is that it is a means of resolving “common issues” that may affect a “class” of people. In this case, the Court has “certified” (i.e., authorized) the case to proceed as a class action on behalf of a “class” of all persons who were, at any time between March 1, 2006 and January 30, 2015, employed by Canada Cartage and entitled to received overtime in accordance with federal laws and regulations.

The Court has also “certified” a list of “common issues” that will be determined at a common issues trial. The determination of these common issues may affect all class members who do not opt-out of the class action.  The common issues to be determined are:

(a)  Was it a term of Class members’ contracts of employment with Canada Cartage that they would be paid for overtime in a manner that complied with the applicable provisions of the Canada Labour Code and its regulations?

(b)  Did Canada Cartage have, at any time between March 1, 2006 and January 30, 2015, a policy or practice of avoiding or disregarding its obligations to pay overtime to Class members in accordance with their contractual entitlements?

(c)  Did Canada Cartage owe Class members a duty (in contract or otherwise) to act in good faith and deal with them in a manner characterized by candour, reasonableness, honesty and/or forthrightness in respect of Canada Cartage’s obligations to pay overtime to Class members?

(d)  If the answer to (c) is “yes”, did Canada Cartage breach this duty owed to Class members?

(e)  Did Canada Cartage owe Class members a duty (in contract or otherwise) to take reasonable steps to ensure that it met its obligations to pay overtime to Class members by, for example, having reasonable and effective systems, procedures and/or policies in place to monitor and accurately record the hours worked and duties performed by Class members and to ensure that all Class members were paid for all overtime hours worked?

(f)  If the answer to (e) is “yes”, did Canada Cartage breach this duty owed to Class members?

(g)  Was Canada Cartage enriched at any time during the Class Period by failing to pay overtime to Class members in accordance with its obligations?

(h)  If the answer to (g) is “yes”, did Class members suffer a corresponding deprivation?

(i)  If the answer to (h) is “yes”, is there a juristic reason for Canada Cartage’s enrichment?

(j)  Did the Assurance of Voluntary Compliance (“AVC”) issued by the Labour Program of HRSDC to Canada Cartage on April 26, 2012 require Canada Cartage’s compliance in paying overtime to all Class members who worked in excess of their standard hours of work (as prescribed by the Canada Labour Code and its regulations) and did Canada Cartage fail to take necessary and effective steps to comply with the AVC?

(k)  If the answer to some or all of the common issues is “yes”, is Canada Cartage potentially liable on a class-wide basis? If “yes”:

(i)  Can damages be assessed on an aggregate basis? If “yes”:

  1. What is the quantum of aggregate damages owed to Class members?
  2. What is the appropriate method or procedure for distributing the aggregate damages award to Class members?

(ii)  Is the Class entitled to an award of aggravated, exemplary or punitive damages based upon Canada Cartage’s conduct towards some or all Class members? If “yes”:

  1. What is the appropriate quantum of aggravated, exemplary or punitive damages that should be awarded to the Class?