In Navaratnarajah v FSB Group ( 2021 ONSC 5418) Justice Morgan certified a class action on behalf of insurance sales agents ( called producers) who are claiming that they are employees rather than independent contractors.
What I found interesting about the case was the common issues that related solely to the remedy if there was a finding that they were employees.
These issues included : overtime pay, termination and severance pay, minimum wage protection, vacation pay, requirement to record hours of work, and reimbursement of EI and CPP excess payments made by class members.
Another interesting issue was whether a class action was the preferable procedure when each producer could file its own ESA complaint with the Ministry of Labour. However as that procedure is subject to a strict 2 year limitation period ( whereas in a class action the discoverability issue can be argued) then the Ministry approach would ” exclude at least some members from any access to justice.”
Moreover even though the fact that if the Plaintiff succeeds it may result in a unfavourable tax and business situation for many of the class members was held not to be a valid consideration in the certification process.
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