Lawyer Monthly Magazine - September 2021 Edition

for certification are similar in the other common law Canadian jurisdictions, although each province has its own statute. Recent legislative changes to Ontario CPA have inserted more robust sub-requirements of superiority and predominance into the preferable procedure criteria. These requirements are similar to those of Rule 23(b) (3) under the United States Federal Rules of Civil Procedure. “Superiority” requires that a class action must be superior to all reasonably available means of resolution. “Predominance” dictates that the questions of fact or law common to the class must predominate over any individual issues. Under this new legislation, the plaintiff bears the burden of satisfying the additional requirements of preferability; previously, the defendant relying on an alternative procedure bore the burden of proving preferability against a high bar. Thus, the Ontario CPA may pave the road for more successful challenges to certification. Where a class action has been certified, the case then proceeds to determination of the merits, which can be contested at trial or summary judgment. The case can also be settled through settlement discussions and mediations, and any settlement requires court approval to demonstrate that the settlement is in the best interests of the class. Occasionally, the case can disposed of by way of a decertification motion. How might this differ when the subject of the lawsuit is employee misclassification? The defence strategy of misclassification class actions has changed over time as the jurisprudence concerning whether a class action raises common issues has evolved. When employee misclassification class actions were first commenced in Canada, variations in job authority, control, responsibility, and independence within the putative class could be raised as a successful defence strategy at certification. Decisions to deny certification were upheld by appellate courts in both Brown v. CIBC and McCracken v. CNR on the basis that extensive job variation within the putative class indicated a lack of commonality. The courts concluded that the need for individual analyses ran contrary to the goals of judicial economy and access to justice legislated by the CPA. However, in 2016 in Rosen v. BMO, the court approved certification by distinguishing the case from 62 WWW.LAWYER-MONTHLY.COM | SEP 2021 EXPERT INSIGHT Both the Federal and Ontario governments passed legislation to prohibit classifying workers in a way that avoids minimum statutory obligations.