On December 10, 2014, Mr. Justice Belobaba heard the plaintiff’s motion regarding whether or not this case should be certified as a class action. The main issue that the Court was concerned with was whether, as framed, the case raises issues that are capable of being resolved on a class-wide (as opposed to an individual) basis. On behalf of the plaintiff, we argued that Canada Cartage has a policy or practice of avoiding or disregarding its obligations to pay overtime to the potential class members, and that this is a common issue because the answer to this question, if decided in favour of the class, can be applied or extrapolated to all class members. Canada Cartage’s position, on that other hand, was that this case did not have any “common issues” and was instead made up of a number of individualized complaints about overtime. We disagree with Canada Cartage’s position.
Justice Belobaba heard the arguments of the plaintiff and the defendants, and reserved his decision. We expect that we will receive a ruling on whether the case can move forward as a class action in the coming weeks or months.
There has been a flurry of activity in the past few weeks in the proposed class action against Canada Cartage and Direct Distribution regarding unpaid overtime.
Most of this activity relates to the fact that we are approaching the court hearing to be held before Mr. Justice Edward Belobaba, which will determine whether this action should be formally “certified” as a class action. This hearing takes place next week, on Wednesday and Thursday, December 10-11, 2014 in Toronto. We encourage any of you who are interested to come and watch the hearing. We expect representatives from Canada Cartage will also attend. If you plan on attending, please arrive at the courthouse 20 minutes before the start of the hearing, as you will be required to pass through security to enter the courthouse. Cell phones must be silenced when entering the courtroom. We hope to see you there.
The court proceedings begin at 10:00 a.m. on both Wednesday and Thursday, and will be held in Courtroom #5 of Osgoode Hall, located at 130 Queen St. West, in Toronto. To view directions to Osgoode Hall, click here.
In preparation for this court hearing, we have prepared written arguments for the Court (known as a factum). This has now been delivered to Canada Cartage, and to the Court. If you would like to read a copy of our factum, please visit the Court Documents page.
We are busy preparing for the court hearing and are committed to advancing the strongest arguments possible in an effort to convince the court that this case should be be “certified” as a class action.
— Eric Hoaken, Ian Matthews, Larissa Moscu and Lauren Epstein.
We are pleased to announce that Larissa Moscu, who recently joined Lax O’Sullivan Lisus Gottlieb LLP from a large national law firm, has joined our class action team. Larissa will work with Eric Hoaken, Ian Matthews and Lauren Epstein on behalf of the proposed representative plaintiff Marc-Oliver Baroch.
On July 20, 2014 we received responding materials from the lawyers for Canada Cartage in opposition of our motion to certify this action as a class action. The responding materials included the Affidavit of Bradley Gehring (VP of Human Resources for Western Canada) and the Affidavit of Gord Russell (National Director, Owner Operator and Driver Agency Programs). These affidavits will form part of the evidence that will be presented to Mr. Justice Edward Belobaba in support of our motion to have this case certified as a class action. This motion will take place between December 10-12, 2014 in Toronto. To view the Notice of Motion, visit the Court Documents page.
We intend to Reply to Canada Cartage’s responding materials, and will do so before August 22, 2014.
Last week, Eric Hoaken, Ian Matthews and Lauren Epstein, lawyers on behalf of the proposed representative plaintiff Marc-Oliver Baroch, served materials on the legal team for Canada Cartage.
The materials were submitted in support of a motion to certify this action as a class action, and included a Notice of Motion, the Affidavit of Marc-Oliver Baroch, the Affidavit of Dawid Juszczak and the affidavit of Lilly Iannacito. The affidavits will form the evidence that will be relied on when we argue the motion in front of Mr. Justice Edward Belobaba between December 10-12, 2014 in Toronto. To view the Notice of Motion, visit the Court Documents page.
Canada Cartage will respond to these affidavits by filing evidence of their own, which we expect to occur in the next month or two. We plan to post their responding materials when they are received.
Justice Edward Belobaba of the Ontario Superior Court of Justice has been appointed to manage this proposed class action.
Earlier today, Lax O’Sullivan Lisus Gottlieb LLP lawyers Eric Hoaken, Ian Matthews and Lauren Epstein attended the first case conference in this matter with Justice Belobaba, along with the lawyers for Canada Cartage and Direct Distribution. The parties agreed that the motion for certification of this action as a class action – the next major step in this proceeding – will be argued December 10-12, 2014, in Toronto. In the meantime, we will begin to prepare our materials and gather evidence in preparation for the motion for certification. These materials will be posted as they become available.
In the weeks ahead, we will continue to reach out to the many employees who have contacted us to continue to learn about Canada Cartage’s overtime practices. We are grateful for your continued interest in this case.
The proposed class action against Canada Cartage has received media attention in a number of publications, such as the Canadian Lawyer, Canadian Manufacturing, Land Line Now, Truck News, and Truckstop Canada.
On November 21, 2013, the lawyers for Canada Cartage and Direct Distribution served their Notice of Intent to Defend this proposed class action. A copy of this Notice is available here.
On November 12, 2013, the law firm of Lax O’Sullivan Lisus Gottlieb LLP released a press release announcing the launch of the class action against Canada Cartage and Direct Distribution Centres. Press Release Nov 12 2013
On November 8th, 2013, the law firm of Lax O’Sullivan Lisus Gottlieb LLP filed a Statement of Claim seeking compensation for unpaid overtime hours worked by certain former and current employees of Canada Cartage and Direct Distribution Centres. Details are provided in the Statement of Claim.