Lexpert magazine features articles and columns on developments in legal practice management, deals and lawsuits of interest in Canada, the law and business issues of interest to legal professionals and businesses that purchase legal services.
Issue link: https://digital.carswellmedia.com/i/1511709
opportunity for profit, and the assumption of financial risk. ese diverse factors, together with the different legislative regimes across the country, made a cross-Canada misclassification claim impractical to manage: Differences in employment standards legislation could likely be accommodated in a multi-jurisdictional class action when that is the principal variable… But it becomes an analytical quagmire when the dimensions of individual differences and time are layered into the equation. e combined effect would be a class action that is inherently unmanageable or requires an [sic] inordinate resources from the courts and litigants to complete. 8 British Columbia has its own agenda e British Columbia Court of Appeal has routinely held that the director of employment standards holds exclusive jurisdiction over employment standards disputes in British Columbia. 9 is raises the question of whether a multi-jurisdictional employment standards class proceeding could ever include employees in British Columbia. is was not addressed by the court in either Cunningham or Virani, as neither were ultimately certified for a class that included employees in British Columbia. Takeaways for employers We anticipate that class proceedings will be increasingly used in Canada to advance ESA-related claims on behalf of groups of employees. Particular- ly, large employers with operations in multiple Canadian jurisdictions are likely to see this type of litigation strategy used more frequently. To minimize risk of this occurring, employers should consider the fol- lowing best practices: • Ensure vacation and public holiday pay are properly calculated and paid on all "wages" including commission and, in many cases, bonus payments. • Provide employees with clear information on how and when ESA-relat- ed payments are calculated and paid. • Periodically self-audit pay practices to ensure they comply with minimum ESA requirements. • With the assistance of employment law counsel, regularly evaluate every independent or dependent contractor relationship to ensure they are defensible as against an employee misclassification claim. Matthew Badrov and Priya Sarin are lawyers with Sherrard Kuzz LLP, one of Canada's leading employment and labour law firms, representing employers. Matthew and Priya can be reached at 416.603.0700 (Main), 416.420.0738 (24-hour), or by visiting www.sherrardkuzz.com. The information contained in this article is provided for general information purposes only and does not constitute legal or other professional advice, nor does accessing this information create a lawyer-client relationship. This article is current as of October 25, 2023, and applies only to Ontario, Canada, or such other laws of Canada as expressly indicated. Information about the law is checked for legal accuracy as at the date the article is prepared but may become outdated as laws or policies change. For clarification or for legal or other professional assistance, please contact Sherrard Kuzz LLP. 1 Smith, Allen. "Top 10 wage and hour class actions cost nearly $500m" (January 28, 2020) . 2 See Fresco v. Canadian Imperial Bank of Commerce, 2020 ONSC 4288, aff'd on appeal Fresco v. Canadian Imperial Bank of Commerce, 2022 ONCA 115. 3 2022 ONSC 5862 ("Cunningham"). 4 The proposed class action did not include BC or Alberta as investment advisors in those jurisdictions are exempt from the vacation and public holiday provisions of their respective employment standards legislation. 5 Supra, note 2, at para 45. 6 See Heller v. Uber Technologies Inc., 2021 ONSC 5518. 7 2023 ABKB 240 ("Virani"). 8 Ibid at para 89. 9 See Macaraeg v. E Care Contact Centers Ltd., 2008 BCCA 182. Matthew Badrov and Priya Sarin Sherrard Kuzz LLP