Effective October 28, 2015, Lax O’Sullivan Scott Lisus LLP, the law firm representing representing the plaintiff and the class members in this class action, changed its name to Lax O’Sullivan Lisus Gottlieb LLP. The firm’s contact information has remained the same.
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”:
- What is the quantum of aggregate damages owed to Class members?
- 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”:
- What is the appropriate quantum of aggravated, exemplary or punitive damages that should be awarded to the Class?
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 Hoaken, Ian Matthews, Larissa 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.
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 Hoaken, Ian Matthews, Larissa 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.
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.
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.
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.