Lawyer Monthly Magazine - September 2021 Edition

Eric S Block, Partner Justine Lindner, Associate McCarthy Tétrault 66 Wellington Street West, Suite 5300, TD Bank Tower Box 48, Toronto ON M5K 1E6, Canada T: +1 416-362-1812 F: +1 416-868-0673 E: eblock@mccarthy.ca; jlindner@mccarthy.ca www.mccarthy.ca Be sure to view this feature on the Lawyer Monthly website, where a variety of useful sources are included. Eric S. Block is a partner in McCarthy Tétrault’s Litigation Group in Toronto and is lead counsel on many alleged worker misclassification class actions. Justine Lindner is an associate in McCarthy Tétrault’s Labour & Employment Group in Toronto who is counsel on a number of employment class actions. McCarthy Tétrault is a leading Canadian law firm that advises on complex and significant matters for Canadian and international interests with a focus on delivering integrated business law, labour & employment law, tax law, property law and litigation services. The 2018 Acritas Survey ranked the firm as the second-strongest law firm brand in Canada. EXPERT INSIGHT 63 SEP 2021 | WWW.LAWYER-MONTHLY.COM can be found where the class members do not share a “substantial common ingredient” given their work variation, or when allowing the matter to proceed as a class action would not avoid duplication of fact-finding or legal analysis. Have there been any recent legislative developments affecting employee classification in Canada? Do you foresee any major changes on the horizon? Within the past five years, several legislative changes came into effect regarding employee classification. For example, both the Federal and Ontario governments passed legislation to prohibit the misclassification of workers to avoid minimum statutory obligations. When looking to the future, we see the potential for change in the definition of “employee” in minimum employment standards legislation. Calls for an expansion of the definition to include dependent contractors, and related concerns regarding the potential unintended consequences of such a change, have been raised in recent years. Any change to the definition of “employee” in minimum employment standards legislation may impact employee misclassification class actions. McCracken and Brown on the basis that the job functions were sufficiently similar – in that case, ensuring overtime pay eligibility could be decided on a class- wide basis. Following Rosen, there has been a significant increase in certified employee misclassification class actions. How courts distinguish recent cases from the decisions in Brown and McCracken often entails a quantitative analysis of job variation. For example, in Montaque v. Handa Travel Student Trip, the court found commonality where the class included three substantially similar positions in comparison to the 52 positions at issue in Brown. Overall, courts appear to be more amenable to job variation if it “exists at the margins of the working relationship and not at its core”. However, opportunities for successful defence strategies Where a class action has been certi ed, the case then proceeds to determination of the merits, which can be contested at trial or summary judgment.