On January 2, 2014, Justice Perell certified a class action
alleging that, among other things, a group of over 500 putative
class members had been wrongfully dismissed by their former (now
insolvent ) employer. Justice Perell's decision in Brigaitis v. IQT Ltd., c.o.b. as IQT
Solutions comes on the heels of a flurry of
employment-related certification decisions focusing almost
exclusively on claims
pertaining to eligibility for overtime pay . Accordingly, it is
one of only a few recent decisions from the class action bench in
Ontario to address the certification of mass wrongful dismissal
The action in Brigaitis was brought on behalf of a
group of former employees whose employment with IQT Solutions, a
telemarketing firm, had been terminated after the company commenced
insolvency proceedings in the U.S. and Canada in 2011. The action,
which named the company and its directors, followed allegations in
the U.S. that executives of the company had mismanaged and misused
funds for their own personal benefit and had done so during periods
in which they ought to have known the company was insolvent or
approaching insolvency The putative class members sought damages
for wrongful dismissal, negligence, conspiracy, inducing breach of
contract, oppression and breach of fiduciary duties.
On certification, the proposed class was vigorously challenged
by the defendants on the basis that a large number of class members
had already obtained relief under the Ontario Employment
Standards Act, 2000 and in proceedings before the Ontario
Labour Relations Board. The defendants argued that section 97 of
the ESA barred over 70 percent of the class from advancing civil
claims for wrongful dismissal. The defendants likewise argued that
the other causes of action advanced by putative class members were
properly viewed as disguised claims for the same wrongful dismissal
damages that a significant portion of the class were barred from
pursuing, and brought a corresponding motion to strike the
In his reasons, Justice Perell categorized the putative class
members into three groups: (i) the "Section 97 Group",
consisting of individuals who had filed a complaint under the ESA;
(ii) those who had been assessed by the Ministry of Labour under
the ESA on a non-voluntarily basis; and (iii) members with no ESA
claims. Ultimately, Justice Perell declined to entirely exclude the
members of the Section 97 Group (the largest group by far, made up
of 236 former employees), finding that although they could not
pursue damages for wrongful dismissal, they were free to advance
claims for negligence, oppression and inducing breach of contract
alongside the remaining class members. Justice Perell likewise
declined to exclude the second category of class members who he
found had not voluntarily sought relief under the ESA,
from any aspect of the claim. Rather, Justice Perell held that
section 97 of the ESA, by its express wording, referred to
individuals who filed claims and thus did not oust these
claimants' ability to pursue wrongful dismissal actions.
Although they may have already received some compensation, Justice
Perell noted that there would be ample opportunity to offset
earnings received in the individual damage trials that would be
necessary to determine damages for the wrongful dismissal
Justice Perell went on to acknowledge that the quantum of
damages for the other causes of actions advanced might overlap or
be commensurate with the damages claimed for wrongful dismissal,
but still declined to accept the defendant's argument that the
remaining claims were properly viewed as "disguised"
wrongful dismissal claims. Rather, he found that, with the
exception of the breach of fiduciary duty claim (which he found to
be improperly advanced pursuant to New York law), all of the
remaining claims could be certified as free-standing claims for
wrongdoing that arose before the wrongful dismissal,
notwithstanding an express acknowledgement that the defendants had
a "strong argument" that class members could not advance
an oppression claim.
This case, combined with the recent overtime class actions,
suggests to us that the plaintiffs' bar is refocusing its
efforts on employment class actions and these claims are likely to
certified even where the plaintiff class has been awarded some
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
To print this article, all you need is to be registered on Mondaq.com.
Click to Login as an existing user or Register so you can print this article.
Unfortunately, reasonable accommodation for employees in the workplace continues to be the source of significant litigation and even today we continue to see outrageous examples of employers behaving badly.
We are now beginning to see reported cases involving charges and subsequent fines laid against employers for failing to provide information, instruction and supervision to protect a worker from workplace violence.
On October 13, 2016, the Supreme Court of Canada denied leave to appeal an Ontario Court of Appeal decision which ordered an employer to pay a former employee 37 months of salary and benefits following termination.
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).