Class certification decisions often turn on whether the claims of the proposed class raise sufficiently "common issues" to allow the action to proceed as a class action, pursuant to the Class Proceedings Act4. Some past "overtime" class action attempts have failed to be certified when courts found that the claims would require specific assessments of individual entitlements to overtime (see McCracken v. CNR5 and Brown v. CIBC6).
As a national trucking company, Canada Cartage is subject to the federal Canada Labour Code, and including the Motor Vehicle Operators Hours of Work Regulations.3 Those regulations specify how many hours certain groups of employees must work before being entitled to overtime pay:
- For non-drivers: over 40 hours
- For city drivers: over 45 hours
- For highway drivers: over 60 hours
The statement of claim alleges Canada Cartage only paid overtime if the 60 hour threshold was exceeded, regardless of the type of employee, and that this policy was contrary to the regulations.
...$100 million class action lawsuit for unpaid overtime... |
However, in Baroch, class plaintiff counsel avoided past pitfalls presented by the commonality requirement by defining the class to include only those who were entitled to receive overtime compensation. Determining who was entitled was not the triable issue. Rather, the pleadings focussed on the "systemic policies or practices that allegedly amount to breaches of the employment agreements".7
Keep in mind that none of the claim's allegations against Canada Cartage have been proven. The certification decision means only that the claim may continue as a class action. Canada Cartage is defending this class action and the certification decision will be appealed.
For the time being, the certification represents a stark warning to corporations about overtime pay policies, and a particular caution to those operating pursuant to the Motor Vehicle Operators Hours of Work Regulations.
1 See e.g. McCracken v. CNR, 2012 ONCA 445; Brown v. CIBC, 2014 ONCA 677; Fresco v. CIBC, 2012 ONCA 444; and Fulawka v. Bank of Nova Scotia, 2012 ONCA 443.
2 Baroch v. Canada Cartage, 2015 ONSC 40.
3 CRC, c. 990.
4 RSC 1985, c. L-2.
5 McCracken, supra note 1.
6 Brown, supra note 1.
7 Baroch, supra note 2 at para 12.
