The Supreme Court of Canada upheld the right of former employees
to pursue a class action against their former employer after the
employer unilaterally amended their post-retirement health
insurance benefits to their detriment in Vivendi Canada Inc. v Dell'Aniello,
2014 SCC 1. The Quebec Superior Court had originally disallowed
the action on the basis that it did not raise "identical,
similar or related" questions within the meaning of Article
1003(a) of the Quebec Code of Civil Procedure. It
found 5 different groups of employees who, based on their
retirement date, had received different information and might have
different rights from those of the petitioning employee. It felt
that a determination of that employee's rights would not have
resolved the dispute for the majority of the remaining employees.
That assessment was rejected by the Quebec Court of Appeal. In the
opinion of the Court of Appeal, the validity of the plan amendments
was an 'identical, similar or related' question for all
group members. The individual questions to be determined for each
employee could co-exist with the determination of that common
On further appeal, the Supreme Court agreed with the Court of
Appeal. It held that an issue could be "identical, similar or
related" if addressing that issue enabled all the claims to
move forward and avoided duplication of the analysis for each group
member. It could meet that criterion even if the issue was answered
differently for one group member than for another, as long as the
answer did not give rise to conflicting interests among the
members. The Court also noted that the Article 1003(a) requirement
was broader and more flexible than the 'common issue'
requirement for a class action in the common law provinces,
suggesting that its decision may have limited application outside
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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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