Ontario Civil

Civil Practice and Procedure

Class and representative proceedings

Representative or class proceedings not under class proceedings legislation

Failure to obtain representation order within two year limitation period was fatal to action

Limitation period. Family-owned meat processing business went bankrupt and 800 employees were terminated without notice or severance. Two actions were commenced against bankrupt businesses, other allegedly family-owned companies and two individuals alleged to be common employers. Actions were intended to be representative actions, one on behalf on unionized employees and one on behalf of non-unionized employees, and sought damages for wrongful dismissal as well as punitive damages on basis of common employer, conspiracy and oppression. Solvent defendants brought motion to dismiss representative actions on basis they were time-barred because required representation order was not obtained within two-year limitation period. Motion granted in part; action on behalf of unionized employees dismissed. Failure to obtain representation order within two-year limitation period was fatal to action on behalf of unionized employees, because it was brought under R. 12.08 of Rules of Civil Procedure, which required representation order be made before proceeding was commenced. Action on behalf of non-unionized employees was brought under R. 10.01, which contemplated prior proceeding and later representation order. Nothing in R. 10.01 plainly and obviously required representation order be obtained within two-year period. Action on behalf of non-unionized employees could proceed, on proviso plaintiffs apply for representation order forthwith, upon which defendants could pursue arguments about balance of convenience and prejudice.

Caetano v. Quality Meat Packers Holdings Ltd. (2017), 2017 CarswellOnt 4093, 2017 ONSC 1199, Edward P. Belobaba J. (Ont. S.C.J.).

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