"When is an overtime misclassification case not a
misclassification case?" asked Justice Belobaba in Baroch v. Canada Cartage, a recent
overtime class action decision. His answer is "When it is
framed as a complaint about the systemic policies or practices of
the defendant employer".
Ontario has seen a significant development in the case law
surrounding overtime class actions in the past several years. In
Justice Belobaba's view, this case law has resulted in a clear
delineation of what is certifiable and what is not.
Certification Of Common Issues Based On "Systemic"
In Baroch, the defendant was a national provider of
trucking and other distribution services. The defendant was subject
to the Canada Labour Code and other federal employment
regulations. The plaintiff in Baroch alleged that, as a
matter of policy and practice, the defendant lacked a proper
overtime policy and did not pay overtime in accordance with the
In Belobaba J.'s view, the Baroch action had been
"carefully framed" to avoid the pitfalls of proposed
overtime class actions that had previously been declared to be
individual in nature. In McCracken and Brown, two previous overtime class
action decisions of the Ontario Court of Appeal, the central
allegation was that employees had been "misclassified".
This meant that it would be necessary to consider each
individual's job title, and whether the employer had
misclassified them to avoid paying overtime. By contrast, in
Fresco and Fulakwa, the plaintiff focused on the
"systemic" policies or practices of the employer that
were alleged to result in unpaid overtime.
In Baroch, the plaintiff's counsel did attempt to
apply these principles to construct a certifiable class action.
Following Fresco and Fulakwa, some of the certified common
issues in Baroch were about the employment law contract;
the defendant's systemic policy, or lack thereof, in respect of
payment of overtime; and about whether there is a duty to have
reasonable and effective systems, procedures and/or policies to
monitor and record hours worked.
Belobaba J. also certified a common issue about whether the
defendant owed class members a duty of good faith, candour and
honesty in respect of its overtime obligations, and if so, whether
this duty was breached. This was apparently based on the recent
Supreme Court of Canada Decision in Bhasin, which articulated a duty of
honesty in contractual performance in the context of an employment
No Certification Of The Issues Of Contractual Breach or General
The certification judge did not certify the question of
breach of employment agreements. Belobaba J. found that the fact of
disregarding overtime obligations would not amount to a breach of
the employment agreements. The possibility or risk that a class
member may not be paid overtime because of an employer's
impugned practice is not a breach of the employment agreement.
Rather, a breach is failing to pay overtime that is actually owed,
and this determination can only be made on an individual basis.
Belobaba J. also refused to certify a general question that asked
what remedies would be available to the class in the event
liability was proven on a common issue.
A Possible Map To Certification – But Where Does It
While every case turns on its unique facts and the evidence
supporting common issues, Ontario's overtime class action
jurisprudence – for now – provides plaintiffs with a
map to certification. The plaintiff's counsel, in this case,
used this map to frame the case for certification and was
successful. However, it is unclear how far certification within the
confines of this framework can get a class. As noted by Belobaba
J., the mere fact of a systemically unfair overtime policy does not
equate to damages. It remains to be seen whether an overtime class
action certified on the basis of "systemic" practices can
effectively be determined in a common issues trial or whether
damages can or should be awarded to the entire class. Justice
Belobaba left those questions open for the trial judge to
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