On January 16, 2014, the Supreme Court of Canada released its
long-anticipated decision in Vivendi Canada Inc. v. Dell'Aniello. The
decision affirmed the Quebec Court of Appeal's 2012 judgment
certifying a class proceeding by retirees of Vivendi Canada
(formerly Seagram) and their beneficiaries over the company's
unilateral reductions in their post-retirement health and welfare
Prior to Vivendi, the question of whether or not a group of
retirees could successfully bring a class proceeding against their
former employer for changes in post-retirement benefits was, to
quote Donald Rumsfeld, a "known unknown". Different
courts across the country had reached different conclusions.
Because these claims so often rely on different versions of plan
documents, presentations and statements made to employees and
retirees, sometimes over the span of decades, some courts have
found the claims to be so individualized that a class proceeding is
simply not the appropriate way to move forward. Other courts have
The stakes can be high. Following a class proceeding, an
unsuccessful company could be on the hook for damages to each and
every retiree affected by a reduction in post-retirement benefits,
even if only a small and vocal group of retirees made the initial
In Ontario, the results have been mixed. In Nadolny v. Peel (Region) (2009), the Superior
Court declined to certify a class proceeding against the defendant
government for its decision to unilaterally raise retiree benefit
premiums. It was not clear to the Court whether all of the members
of the class had received the same or similar documents and
statements that the purported representative plaintiff claimed she
had relied on. The Superior Court reached an opposite result and
granted class certification to a group of retirees challenging
benefit reductions in its 2011 decision in O'Neill v. General Motors of Canada
All of this brings us back to Vivendi. The dispute here involved
a series of unilateral reductions that Vivendi made to its
post-retirement benefit coverage and the validity of the
contractual provision that purported to give Vivendi the ability to
do so. Mr. Dell'Aniello sought to bring a class proceeding on
behalf of all employees of the company and its predecessor Seagram
who had retired between 1971 and 2003.
Based in part of the array of benefit plan texts, booklets and
statements in issue, the Quebec Superior Court found that the
claims were too individual-specific to proceed by way of class
action. The Court of Appeal and Supreme Court each held
According to the Supreme Court, the retirees' claims raised
a sufficiently "identical, related or similar question of law
or fact" such that the resolution of this question would move
the action forward (one of the requirements for certification under
Quebec's Code of Civil Procedure). The Court held that
Qucbec's "commonality requirement" is flexible and
that the criterion for commonality "may be met even if the
common questions raised by the class action require nuanced answers
for the various members of the group".
So what does Vivendi mean for employers in Ontario? Companies
are increasingly reexamining their post-retirement benefit plans
with a view to cost savings. Sky-rocketing drug costs, longer
lifespans and the prolonged economic downturn have combined to make
many of these plans unsustainable. But whether or not a company can
make changes to these arrangements, and if so, to what extent, has
long been a complicated legal question. When individual retirees
have challenged these decisions en masse, employers at least had
the chance, according to decisions like Nadolny, to argue that a
class proceeding was not the appropriate means to do so.
Vivendi may change that. While the Supreme Court's decision
depended on the particular wording of Quebec legislation, Ontario
courts will no doubt consider its comments on the commonality
requirement when faced with similar claims over post-retirement
benefits. The fact that such claims allege that a number of former
employees each relied on different versions of booklets, brochures,
PowerPoints and statements over many decades may no longer be
enough to defeat a motion for class certification.
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.
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