Class Action on Unpaid Vacation Pay and Public Holiday Pay for Variable Income Can Proceed:

In Curtis v. Medcan Health Management Inc., 2022 ONSC 5176, the Ontario Divisional Court overruled the decision of Judge Perell who denied certification.

The action is based on the premise that both vacation pay and statutory holiday pay are to be paid on all income, not just on base pay. In this class of employees all of them had some component of either commission income or bonuses which are wages under the ESA.

Medcan sought to remedy this mistake by paying monies owing for the two years prior but refused to pay before that date, relying upon the two year limitation period in the Limitations Act 2002.

This class action seeks compensation for the period before the two years.

The Div Court found that the class action was preferable over individual civil actions because this would provide a greater access to justice, given, among other factors, the unwillingness of current employees to sue their employer directly.

Moreover the trial judge failed to consider the behaviour modification aspects of the application, namely that by holding the employer responsible for the actual damages incurred by the class, it will serve as a message to other non compliant employers that they cannot just ignore the ESA for decades and then get out of the problem by only paying up for the last 2 years if they are caught.

The Court then certified the class.

Class counsel was Monkhouse Law and Employer counsel was Hicks Morley .

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