THE NEXT CLASS ACTION?
Historically, class actions have proven to be a challenge in
employment law. Employees are thought to be a poor tar-get
for class action lawyers as they are notoriously difficult
to access and organize, and individual claims tend to be of
relatively low value. Most problematic, however, is that the claims
tend to lack the required “common issues” between employees to
permit a court to certify a class action. By their nature, the claims
advanced are often inherently individual and tend not to be ame-nable
to common proof. As a result, proceeding as a class action
tends not to avoid the duplication of fact-finding or legal analysis
that class proceedings are designed to avoid.
However, several recent certifications of employee over-time-
related class actions have shown that the challenge is not
insurmountable. In fact, in recent years, Ontario courts have
shown a greater willingness to stretch boundaries and find com-mon
issues on the understanding that certain losses can arise from
systemic causes. Contemporaneously, there has been an increased
strain on the resources of enforcement agencies and pressure to-wards
greater judicial economy.
Although they have avoided the crosshairs in Canada so far,
statutory vacation entitlements may prove to be the subject of fu-ture
class action proceedings.
OVERVIEW OF VACATION ENTITLEMENTS
Vacation entitlements are governed by provincial or federal
employment standards legislation. As a result, the rules and en-titlements
will vary between provinces. In Ontario, for example,
statutory “vacation” is divided into the following two parts:
1. “Vacation Time” – Employees are entitled to at least two
weeks of vacation time after each 12-month vacation
entitlement year (pro-rated for any stub period); and
2. “Vacation Pay” – Employees are entitled to at least 4 per cent
of wages (excluding any vacation pay) earned in the 12-month
vacation entitlement year (or stub period, if applicable).
a. Note that recently, Ontario put forward Bill 148, which,
if passed, will increase an employee’s entitlement to three
weeks of time and 6 per cent of wages after five years of
By Kathleen Chevalier and Alex Lemoine
Tond Van Graphcraft / Shutterstock.com
HRPROFESSIONALNOW.CA ❚ OCTOBER 2017 ❚ 37