Case Update – June 12, 2017

We write to provide an update on the status of this class action.

We are currently in the “discovery” stage of the case. What this means is that both sides (that named plaintiff on one hand, and Canada Cartage on the other hand) have an obligation to disclose and exchange all relevant documents; that is, all documents that relate to the common issues that have been “certified” by the court. for a description of the certified common issues, click here to see our earlier post on this topic.

Because Canada Cartage has possession of the vast majority of the documents that will be relevant to this lawsuit, we have had to wait for its documents to be produced. We have now received production of a significant number of documents from Canada Cartage (numbering in the tens of thousands) and are busy reviewing them.

Once we are finished reviewing the documents, we will have an opportunity to examine representatives of the defendants under oath. These examinations are currently scheduled to take place in the fall of 2017.

The discovery stage of a case of this magnitude generally takes a bit of time. If you are a member of the class, we encourage you to be patient as we work through this important stage of the case. While it may be timing consuming, the purpose of discovery is to gather evidence that can be used to prove the case at trial. We want to make sure that we have carefully reviewed and catalogued everything received from Canada Cartage so that we will be in the strongest possible position to advance this case on behalf of class members in the future.

Case Update – October 5, 2016

In our last update of September 2, 2016, we told you that Canada Cartage was seeking to appeal the decision of Justice Belobaba, dated April 27, 2016, requiring Canada Cartage to produce certain documents as part of the discovery process. Before Canada Cartage can appeal Justice Belobaba’s decision, it must first ask the Ontario Divisional Court for permission to do so (this is known as a “motion for leave to appeal”). Justice Dambrot of the Ontario Divisional Court considered Canada Cartage’s leave to appeal motion on September 13, 2016 and released his decision on September 20, 2016.

We are happy to report that Justice Dambrot refused to grant Canada Cartage permission to appeal the decision of Justice Belobaba. This means that Canada Cartage is required to produce certain categories of documents relating to its head office policies and individual terminal practices with respect to payment for overtime.

In reaching its conclusion, the Court accepted the arguments made by Eric Hoaken, Ian Matthews and Lisa Lutwak on behalf of the plaintiff that the decision of Justice Belobaba does not conflict with another court decision and that it would not be desirable to grant leave in this case.

To read a copy of the decision of Justice Dambrot, please click here.

Case Update – September 2, 2016

The case is currently in the “discovery” stage. In this stage, the parties must exchange relevant documents and produce representatives to be examined. We are gathering the relevant documents of the representative plaintiff, Marc-Oliver Baroch and we expect that Mr. Baroch will be examined for discovery at the appropriate time. Meanwhile, Canada Cartage has begun to produce documents to us that we are beginning to review. Pursuant to the April 27, 2016 court order of Justice Belobaba, Canada Cartage was required to produce a batch of documents to us on July 30, 2016 (which it has done), with further batches to follow on October 14 and November 30.

Canada Cartage is seeking to appeal the decision of Justice Belobaba requiring it to produce certain documents. This issue will be considered by the Ontario Divisional Court on September 13, and we expect the Court will issue reasons for decision shortly after that date. We expect to report the results of this decision in our next update.

Case Update – April 7, 2016

In our last update of November 25, 2015, we indicated that Canada Cartage had raised an issue relating to the alleged union membership of certain employees who may be included in this lawsuit. This resulted in a motion that was argued before Justice Belobaba on December 17, 2015, in Toronto.

Based on the comments made by Justice Belobaba at the hearing of the motion, further negotiations were held between the Plaintiff and Canada Cartage in January, February and March 2016. As a result of these negotiations, Justice Belobaba issued an Order on March 29, 2016 that changed the class definition (i.e., the description of current and former Canada Cartage employees who may be affected by this lawsuit). A copy of the March 29, 2016 court order can be found on the Court Documents page.

The Court Order has an impact on the claims that current or former Canada Cartage employees can advance with respect to unpaid overtime. Specifically, for current or former employees who worked at Canada Cartage at any time between March 1, 2006 and January 30, 2015 (the “Class Period”) and were entitled to receive overtime compensation, these employees will be unable to advance overtime claims through this class action in relation any period of time that their terms and conditions of employment were governed by a collective agreement between Canada Cartage and a union. If this affects you, you should speak with your union representative. If you have any questions, please contact us.

***Note: This Court Order has no impact on the overtime claims of current or former employees of Canada Cartage during the Class Period for any time during which these employees were not subject to a collective agreement. These claims continue to be part of the class action.***

Case Update – November 25, 2015

In the past weeks, we have received Canada Cartage’s Statement of Defence, and delivered a Reply to this Statement of Defence. These documents have been posted and can be found on the Court Documents page.

Canada Cartage has raised an issue relating to the alleged union membership of certain employees who may be included in this lawsuit. This issue is scheduled to be argued before Justice Belobaba on December 17, 2015.

As always, if you have any questions about the case, please email info@canadacartageclassaction.com or contact Eric HoakenIan MatthewsLarissa Moscu or Lisa Lutwak, who are the lawyers for the plaintiff.

 

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?

Case Update – June 15, 2015

We are very happy to report that, on June 15, 2015, Mr. Justice Lederman released his decision refusing to grant permission (known as “leave”) to Canada Cartage to appeal the decision of Justice Belobaba that certified this case as a class action. The decision of the Court means that Canada Cartage has no further ground of appeal on which to prevent this case from moving forward as a class action. In reaching its conclusion, the Court accepted the arguments made by Eric HoakenIan MatthewsLarissa Moscu and Lauren Epstein on behalf of the plaintiff.

The claim will now proceed as a class action that covers a “class” of current and former Canada Cartage employees who worked at the company between March 1, 2006 and January 30, 2015. One of the common issues approved by the Court alleges that during this time period, Canada Cartage had a policy or practice of avoiding or disregarding its overtime obligations to class members.

In the coming weeks, we will be asking the Court to direct Canada Cartage to file a Statement of Defence, and to begin to disclose documents to us as part of the document discovery process. We will also seek the approval of a notice, to be sent to all class members, advising them that the case has been certified as a class action. We will provide a further update in the weeks ahead as these steps are implemented. In the meantime, we view this decision as being a very positive outcome for all class members.

To read a copy of the decision of Justice Lederman, please visit the Court Documents page.

Case Update – January 30, 2015

We are very happy to report that, on January 30, 2015, Mr. Justice Belobaba released his decision certifying this case as a class action. The decision of the Court means that this case has been formally authorized to move forward as a class action. In reaching its conclusion, the Court accepted the arguments made by Eric HoakenIan MatthewsLarissa Moscu and Lauren Epstein on behalf of the plaintiff that there was a basis in the evidence to think that the proposed common issues could be resolved on a class-wide basis.

The claim, as certified, covers a “class” of current and former Canada Cartage employees who worked at the company between March 1, 2006 and January 30, 2015. One of the common issues approved by the Court alleges that during this time period, Canada Cartage had a policy or practice of avoiding or disregarding its overtime obligations to class members.

It is open to Canada Cartage to seek “leave” (permission from the Court) to appeal this decision, and they have 15 days to decide if they wish to do so. We will provide a further update in the event that Canada Cartage seeks leave to appeal. In the meantime, we view this decision as being a very positive outcome for all class members.

To read a copy of the decision of Justice Belobaba, please visit the Court Documents page or click here to read the decision online.