Canada: US Supreme Court Allows Use Of Sampling On Certification: What Does This Mean To Canada?

Last Updated: April 8 2016
Article by Sabrina Callaway

Last week, the US Supreme Court affirmed a $5.8 million judgment and upheld the District Court's decision to certify a class action on behalf of pork-processing workers employed by Tyson Foods Inc., the second largest meat producer in the world.1 Of note, the Court ruled that workers could use statistical sampling, averages and other statistical analyses to support certification. Given that some of these methods are not currently permitted on certification in Ontario and Canada, those practicing in class actions should consider the possible relevance of the US Supreme Court's decision to their practices.

In 2011, an Iowa federal jury had awarded workers $2.9 million, which was subsequently raised to $5.8 million, for uncompensated time spent putting on (i.e. donning) and taking off (i.e. doffing) required uniforms and protective clothing or equipment, as well as time spent walking.2 This judgment was upheld in 2014 by an Eighth Circuit panel. In both instances, the workers relied on a study that analyzed how long various donning and doffing activities took, averaged the time, and then added the estimates to the timesheets of each employee to ascertain which class members worked more than 40 hours a week and the value of damages across the class.

Tyson Foods appealed to the Supreme Court, arguing that the decisions of the lower courts ran counter to such landmark cases as Wal-Mart Stores Inc. v. Dukes,3 in which Justice Scalia found that a class action should only be allowed where the damages suffered by the class are identical to those of the named plaintiff. The judgment of the lower courts in Tyson relied on "extrapolation and averaging" where there was in fact some variance in the amount of time it took various workers to put on and take off their protective equipment. Thus not all cases were identical.

However, Justice Kennedy, writing for a 6-2 majority, found that the statistical analyses were necessary to fill an evidentiary gap left by the lack of records kept by Tyson Foods regarding don-doff times. If any worker had commenced an individual action, Justice Kennedy found that they would have had to rely on similar studies to prove the additional hours worked and thus damages suffered. The fact that this action was brought on behalf of a class should not bar the plaintiffs from using statistical methods if appropriate.

Justice Kennedy did caution that the acceptance of statistical evidence in cases that do not involve inferences of hours worked within the context of the FLSA should depend on the facts and circumstances of that particular case. Further, Justice Kennedy noted that this decision did not contradict Wal-Mart v Dukes, which did not state that a representative sample could never be used for establishing class-wide liability.

The Supreme Court of Canada has rejected the approach in Wal-Mart v Dukes on two separate occasions. In Pro-Sys Consultants Ltd v Microsoft Corporation, Justice Rothstein, writing for the majority, found that, at the certification stage, expert methodology need only offer a realistic prospect of establishing loss on a class-wide basis.4 To force Canadian courts to weigh and review conflicting expert testimony in a "robust" and "rigorous" manner, as required by the US Supreme Court in Wal-Mart v Dukes, would be inappropriate given that discoveries in Canada typically occur after certification, rather than before in the US. Further, in Vivendi Canada Inc v Dell-Aniello, Justices LeBel and Wagner, writing for the majority, found that authorization of class proceedings in Quebec is more flexible that the current American approach identified in Wal-Mart v Dukes.5

Although Canadian courts rely on the less stringent "some basis in fact" test on certification, it is interesting to note developments south of the border arising out of Wal-Mart v Dukes. Although many will likely see this as a big win for plaintiffs counsel (and the catalyst for a new wave of lawsuits) the decision appears to be quite narrow. Yes, plaintiffs may use statistics to fill evidentiary gaps, but only where similar sampling studies "could have been used to establish liability in an individual action."6

In Canada, most provincial class proceedings statutes allow for the admissibility of statistical evidence in respect of remedies where it would otherwise be inadmissible.7 In Ontario, where damages are certified as a common issue, sections 23 and 24 of the Class Proceedings Act, 2002 ("CPA") allow the court to admit statistical information to determine issues relating to the quantum or distribution of a monetary award, and to undertake an aggregate assessment of the quantum of monetary damages owed to the class members.8

Although statistical information is permitted, according to the Ontario Court of Appeal, section 24(1)(c) of the CPA does not permit the sampling of class members in order to conduct an aggregate assessment of damages, as was done in Tyson Foods.9 Although Justice Belobaba recently followed such authority in Nolevaux, he left a detailed critique of the Court of Appeal's conclusion on random sampling to provide the basis for a partial or aggregate assessment of damages:

In other words, even if random sampling of a handful of class members is the very method that would be used by a trial judge in a parallel mass tort or contract action (to try to monetize the intangible "loss of use" claims), this same approach – the random sampling of the same handful of class member claimants – cannot be used by the common issues trial judge in a class action because this would be in breach of s. 24(1)(c).

I frankly do not understand this interpretation of s. 24(1)(c). With respect, this is not a generous or purposive reading of the CPA.

Justice Belobaba's critique is fully consistent with the reasoning in Tyson Foods. Canadian class action counsel might wish to consider the effect of Tyson Foods on the certification of common issues concerning aggregate damages going forward.

Class proceedings aside, Tyson Foods does provide a good reminder to Canadian employers of their duty to keep adequate records under both federal and provincial legislation.10


1 Tyson Foods Inc v Bouaphakeo et al, Case No.: 14-1146 in the Supreme Court of the United States.

2 In the US, this is called a "don-doff" dispute. Under the Fair Labor Standards Act ("FLSA"), employers may be required to compensate employees for time spent putting on and taking off certain work clothes and protective equipment where the activity is an integral and indispensable part of the employee's job.

3 Wal-Mart Stores, Inc v Dukes et al, Case No.: 10-277 in the Supreme Court of the United States.

4 Pro-Sys Consultants Ltd v Microsoft Corporation, [2013] 3 SCR 477 at paras 117-119.

5 Vivendi Canada Inc v Dell-Aniello, [2014] 1 SCR 3 at para 57.

6 Tyson Foods Inc v Bouaphakeo et al at 14.

7 Class Proceedings Act, 1992, SO 1992, c 6, ss 23-24. Section 23 can be used to calculate damages on a global scale while section 24 can be used to determine a way to distribute the aggregate sum to class members.

8 See Canadian Imperial Bank of Commerce v Green, [2015] 3 SCR 801 at para 204.

9 Fulawka v The Bank of Nova Scotia, 2012 ONCA 443 at para 137; Nolevaux v King and John Festival Corp, [2013] OJ No 4454 at para 14 (Sup Ct) ("Nolevaux").

10 Canada Labour Standards Regulations, CRC, c 986, s 24; Employment Standards Act, 2000, SO 2000, c 41, s 15.

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

Click to Login as an existing user or Register so you can print this article.

In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
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).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.