Employee sought to pursue class action for employees denied overtime pay

Real contest in proposed class action would be over individual issues, not common issues

Labour and Employment Law - EMPLOYMENT STANDARDS LEGISLATION - Civil actions

Employee was employed by paving company. Employee was paid time and a half for overtime hours worked in excess of 55 hours per week. Employment Standards Act required that overtime rates be paid for time worked in excess of 44 hours per week with exceptions made for managers and on-side road construction workers. Employee sought to pursue class action on behalf of all non-unionized, non-managerial employees of employer denied rightful overtime pay. Employee’s motion for certification was denied. Employee appealed. Appeal dismissed. Motions judge properly exercised his discretion to refuse certification. Plaintiff failed to pursue lists of proposed class members before certification motion. Plaintiff failed to amend his pleadings to allege cause of action against one of two defendants. Plaintiff failed to put forward litigation plan. Real contest in proposed class action would be over individual issues, not common issues. Plaintiff failed to show that there were at least two members of his proposed class. Plaintiff did not establish that there were no preferable procedures available to plaintiff and other class members. Case was seven years old by time it reached motions judge for decision on certification and it was no error for motions judge to decide motion on basis of materials before him.

Bartholomew v. Coco Paving Inc. (2019), 2019 CarswellOnt 7890, 2019 ONSC 2919, D.L. Corbett J., Myers J., and Sheard J. (Ont. Div. Ct.); affirmed (2017), 2017 CarswellOnt 16082, 2017 ONSC 6014, M.L. Edwards J. (Ont. S.C.J.).

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