Shafik Bhalloo
Tuesday, April 29th, 2014    Posted by Shafik Bhalloo (posts) and Devin Lucas (posts)
Shafik Bhalloo
Shafik Bhalloo has been a partner of Kornfeld LLP since 2000. His practice is focused on labour and employment law, and on commercial and civil litigation. He is also an Adjudicator on the Employment Standards Tribunal and an Adjunct Professor in the Faculty of Business Administration at Simon Fraser University.
Devin Lucas
Devin Lucas maintains a general civil litigation practice with a focus on corporate and commercial litigation and landlord tenant and real property disputes. His commercial litigation experience includes contractual disputes, employment matters, and debtor-creditor law.

INTRODUCTION

The steps to receiving a suspension when appealing a determination of the Director of Employment Standards (the “Director”) to the Employment Standards Tribunal (the “Tribunal”) can be confusing and full of potholes, so it is best to plan ahead and know the terrain.  For applicants wanting to map out their route, this article will provide a brief primer of the law governing a suspension request when appealing a determination by the Director.  It will also serve as a practical guide for adjudicators who are reviewing these applications.  Part I examines the statutory scheme behind this remedy.  Part II documents a number of previous decisions where suspensions have been ordered and where they have been refused, as well as decisions regarding reconsideration of appeals and suspension orders rendered moot.  Part III sets out five common errors made by applicants and seven instructive principles for consideration by both applicants and adjudicators.

PART I.         LEGISLATIVE FRAMEWORK

Section 113 of the Employment Standards Act (the “Act”) and Rule 31 of the Tribunal’s Rules of Practice and Procedure (the “Rules”) govern requests to suspend a Director’s determination.  The two provisions are complementary and should be viewed collectively by an applicant seeking a suspension of a determination:

Director’s determination may be suspended

113     

(1)        A person who appeals a determination may request the tribunal to suspend the effect of the determination.

(2)        The tribunal may suspend the determination for the period and subject to the conditions it thinks appropriate, but only if the person who requests the  suspension deposits with the director either

(a)        the total amount, if any, required to be paid under the determination, or

(b)        a smaller amount that the tribunal considers adequate in the circumstances of the appeal.

Rule 31           Request to Suspend a Determination

Requirements for application to suspend a determination

(1)        In order to request a suspension under s. 113 of the Act an appellant or applicant must, in writing, at the same time as filing the appeal or application for reconsideration:

(a)        state the reasons for the request to suspend the determination;

(b)        state the amount to be deposited with the Director; and

(c)        if that amount is less than the amount required to be paid by the Director, state the reasons why depositing a lesser amount would be adequate in the circumstances.

Notice of suspension request

(2)        The Tribunal may notify the other parties of the request to suspend the determination and set a time limit for responding to the request.

Suspension decision

(3)        If the request is not otherwise resolved, the Tribunal will advise the parties in writing of its decision on the request.

Section 113(1) of the Act grants an applicant appealing a determination the ability to seek a suspension of a determination pending an appeal; subsection (2) gives the Tribunal the authority to consider such an application.  The language of subsection (2) is permissive and vests in the Tribunal the sole discretion to grant a suspension.  As such, a suspension is not granted by the Tribunal as a matter of course.  Further, respondents are given the opportunity to file submissions in response to an applicant’s suspension request.

Subsection (2) holds that the Tribunal is to exercise its discretion to suspend a determination subject to terms and conditions considered sufficient by the Tribunal.  The Tribunal has the option of ordering either the total amount, if any, required to be paid under the determination to be deposited with the Director, or a smaller amount that the Tribunal considers appropriate in the circumstances of the appeal.  The amount is held in trust by the Director pending a further order by the Tribunal on the merits of the appeal.

Rule 31(1) goes further and explains the procedural requirements governing a suspension request.  It requires the applicant to submit in writing, “at the same time as filing the appeal or application for reconsideration”, the reasons for the request to suspend the determination, the amount the applicant is willing to deposit with the Director, and if that amount is less than the full amount ordered by the Director in the determination then the reasons why the lesser amount would be adequate in the circumstances.

It is important to note that an applicant is only permitted to request the Tribunal to suspend a determination that was issued pursuant to section 79 of the Act.  Section 113 does not apply in respect of a determination issued under section 119.  Section 119 deals with reciprocating jurisdictions under the Act and allows an employee in a reciprocating jurisdiction to have an order from that jurisdiction enforced in British Columbia.  Pursuant to section 119, a determination can be appealed, but only to the Supreme Court of British Columbia and not to the Tribunal.  Accordingly, only the Supreme Court of British Columbia has the authority to suspend a section 119 determination.

PART II.        HELPFUL DECISIONS DEALING WITH SECTION 113 AND RULE 31

Numerous Tribunal decisions have considered section 113 applications.  The practice that has emerged recently with respect to these decisions is for the Tribunal to issue its reasons on an application to suspend the effect of a determination separately from the reasons regarding the actual merits of an applicant’s appeal.

A.        Suspensions Ordered

The 1997 Tribunal ruling in Tricom Services Inc.[1] is a leading decision on the factors that a Tribunal must evaluate when considering a suspension of a determination request.  In that decision, a security business appealed a determination by the Director, whereby the employer was ordered to pay the total sum of $34,076.82 representing unpaid wages and interest.  The employer, Tricom Services Inc. (“Tricom”), also sought a suspension of the determination pending the outcome of the appeal.

The Tribunal released an initial decision regarding the employer’s request to suspend the determination.  The Director strenuously objected to the suspension request because the company was in a financially precarious position.  The Director raised the concern that if the determination was suspended without any monetary deposit the employees would be severely financially prejudiced.  In response, the employer stated that although it was able to pay the full amount of the determination, such payment would have a significant negative effect on its cash flow and, on the basis of its strong meritorious appeal, the suspension ought to be ordered with no, or very little, money being deposited.

In its preliminary decision on the suspension request, the Tribunal made reference to two earlier Tribunal decisions.  First, the Tribunal distinguished Motion Works Group Ltd.[2], where the Tribunal ordered the suspension of a determination (in the amount of $16,039.58) upon deposit of the sum of $5,000.  In Motion Works Group Ltd., the Tribunal issued an order suspending the determination primarily for the reason that the determination appeared to overstate the unpaid wage entitlement of the employees.  The Tribunal, in Tricom, noted that, unlike the case at bar, the allegation had been particularized in Motion Works Group Ltd.  In that regard, the Tribunal stated:

… Tricom simply makes a general assertion that the Determination may be in error as to the calculation of the amounts due to the various employees.  However, given that the Determination was based on Tricom’s own payroll records, I would have thought it not a Herculean task for the appellant to more fully particularize its claim that the Determination contains calculation errors.

Despite the lack of particularity regarding the Director’s apparent overstatement of wages, the Tribunal was satisfied that the employer’s appeal may be meritorious.  The Tribunal went on to consider the Tribunal decision in TNL Paving Ltd. et al.[3]  In TNL Paving Ltd. et al., the Director had opposed a suspension request on the basis that if the determination was suspended, an ongoing investigation would be prejudiced.  The Director had issued a determination that the records pursuant to an earlier Demand by the Director could be utilized in an investigation into whether the employers had complied with its statutory obligations.  This was a unique case as the determination did not involve a monetary order.  The Director, in response to the applicant’s request, had opposed it as it submitted only determinations for a specific monetary sum could be suspended.  The Tribunal noted that section 113(2)(a) referred to depositing with the Director the “total amount, if any…”.  In the Tribunal’s opinion, the words “if any” specifically contemplated an applicant seeking a suspension of a determination that did not involve the payment of money.  Further, the Tribunal found that the Director’s submission that it would be prejudiced if a suspension was granted failed for lack of particularity.  The Director had not established how it would be prejudiced if the determination were to be suspended.

Similarly, the Tribunal in Tricom Services Inc.[4] found that the general claim of prejudice on the part of the employer regarding its cash flow was insufficient to justify an order to suspend the determination upon deposit of little or no monetary security.  According to the Tribunal, the adequacy of any proposed deposit must be viewed not only from the perspective of the employer, but from the point of view of the employees as well, as their rights could be affected by a suspension order.  The Tribunal took into account the fact that Tricom appeared to be having financial difficulties and there was a risk that the employees would not be able to recover their unpaid wages. The Tribunal ordered that the determination be suspended until the appeal had been heard or decided, or until further order of the Tribunal, on the condition that Tricom deposited with the Director the full amount of $34,076.82 required to be paid under the determination.

The Tribunal in Miller[5] provided a useful summary of the governing principles in a section 113 application.  In this decision, the Tribunal Member approved of a two-stage analysis for adjudicators considering section 113 suspension applications.  First, the Tribunal should determine whether it should suspend the determination.  If the Tribunal decides that a suspension is warranted, it should then contemplate what terms and conditions are appropriate in the circumstances.  In considering whether it should suspend the determination, the Tribunal should consider whether the grounds of appeal appear to raise a “justifiable issue” based on any of the three statutory grounds of appeal.  Moreover, at this stage, the Tribunal ought to consider whether the applicant will likely endure unreasonable financial hardship if a suspension order is not granted and whether one or more of the respondent parties will be unjustly prejudiced if a suspension order is granted.  If the Tribunal is satisfied that a suspension order is justified, the “default” order is that the full amount of the determination be paid into trust with the Director pending the outcome of the appeal.  If, however, the applicant seeks an order that a lesser sum be deposited, the applicant must establish why that would be appropriate taking into account all the relevant circumstances.

The Tribunal Member recognized that an appeal from a decision of the Director does not grant a right to the applicant for a fresh trial.  On this basis, he advised that the Tribunal should not suspend a determination if the applicant’s appeal documents fail to raise, on their face, an arguable case that the appeal might succeed on one or more of the enumerated grounds of appeal pursuant to section 112 of the Act.  As such, the Tribunal Member warned that a general claim that the Director failed to observe the principles of natural justice in making the determination will not be adequate.  The Tribunal Member identified that the applicant is the party that bears the burden of satisfying the Tribunal, on a balance of probabilities, that a suspension order is warranted.

In light of these principles, the Tribunal found in Miller[6] that the applicant raised an arguable case, but had failed to provide any support for its contention that the award would raise undue financial hardship.  Therefore, the Tribunal Member ordered that the suspension order should be granted provided the appellant deposit the full sum required to be paid under the determination.

The Tribunal in Kootenai Community Centre Society[7] was asked to consider a request for suspension of a determination requiring a non-profit society to pay $18,171.74, representing wages and accrued interest owed to a former employee and an administrative penalty in the amount of $500.00.  The society deposited the amount of $7,359.75 with the Director in its appeal.  This amount reflected what the society submitted was the employee’s entitlement less statutory deductions.  The society also gave an undertaking to pay out the outstanding balance of the award, if necessary, following the Tribunal’s decision on the merits.  The Tribunal found that the society’s submissions regarding the substantive aspects of the appeal had merit.   Further, the Tribunal considered the fact that neither of the respondents had taken a position with respect to the suspension application and found that the granting of the suspension would not be prejudicial towards these parties.   In the end, the Tribunal concluded that a suspension order was warranted and that the lesser amount was sufficient to act as security pending the outcome of the appeal.

In many section 113 suspension application decisions, the Tribunal takes a middle of the road stance that seeks to balance the competing interests of the applicant and the respondent.  This was illustrated in the Tribunal decision of Wen-DI[8], in which the Tribunal fashioned a creative remedy that sought to satisfy the interests of both the applicant and the respondent.  In that case, the applicant employer requested that the determination ordering the applicant to pay $10,451.36 be suspended upon the deposit of $1,200 with the Director pending the appeal.   The applicant raised the issue of potential cash flow problems. In response, the Director submitted that the full amount ought to be deposited.  The Tribunal felt neither proposal was appropriate.  The Tribunal framed an order that secured the employee’s claim while, at the same, did not unduly constrain the employer’s cash flow.  The Tribunal accomplished this by ordering the applicant to provide to the Director an irrevocable letter of credit in favour of the Director for the full amount ordered to be paid under the determination.

In Chatzispiros[9], the Director issued a determination against a number of related companies, including 553334 B.C. Ltd., for $435,905.05 on account of unpaid regular wages, statutory holiday pay, vacation pay, individual compensation for length of service and group termination pay owed to 64 former employees of an intermediate care facility.  A subsequent determination was issued against Kosta Chatzispiros, in the amount of $121,253.56, in his capacity as a director and officer of 553334 B.C. Ltd.  In his suspension request, Mr. Chatzispiros claimed that if he was required to pay the full amount of the determination, he would be forced to file for bankruptcy.  According to Mr. Chatzispiros, a deposit of $1,000 would be suitable in the circumstances of the appeal.  The Director took the position that 10 percent of the determination would be an adequate, being $12,125.  The Tribunal agreed with the Director’s proposal given the fact that $1,000 was inadequate security for the 64 complainant employees, the lack of merit of Mr. Chatzispiros’s appeal, and that it appeared the applicant had no intention of paying the determination amount should it be upheld on appeal.  As such, the Director ordered that the determination be suspended provided the applicant deposited $12,125 with the Director.

In Holt[10], William Holt was found personally liable for two months of unpaid wages, in the total amount of $11,786.67.  The Director had found that Mr. Holt, as a director or officer of a software company, had breached the Act by failing to pay regular wages to a former employee.  Mr. Holt appealed the determination and requested a suspension of the determination.  Counsel for Mr. Holt submitted that Mr. Holt was retired and requiring a deposit of any amount would cause a considerable hardship to the applicant.  The Tribunal found that Mr. Holt had made out an arguable case, and that his appeal had some merit.  On this basis, the Tribunal suspended the effect of the determination.  Because of the fact that Mr. Holt was retired, the Tribunal considered it appropriate that the entire amount be suspended pending the result of the appeal.

B.        Suspensions Refused

In the Tribunal decision in RTS[11], an employer requested a suspension of the effect of a determination, in the amount of $4,346.78, pending the outcome of a hearing and a final decision made by the Tribunal.  The Tribunal quoted with approval a passage from the leading decision of Tricom Services Inc.[12], where the Tribunal stated:

… it is important to note that the legislature has provided, as a first proposition, that a suspension should only be ordered if the ‘total amount’ of the determination is posted; a ‘smaller amount’ should only be ordered if such lesser amount would be ‘adequate in the circumstances of the appeal’.

The Tribunal Member noted that there was not any indication in the appeal that the employer deposited any amount with the Director that was required to be paid pursuant to the determination.  Without some indication that that this condition has been fulfilled, or that the Tribunal approved of a lesser amount being deposited, the Tribunal was not prepared to exercise its discretion under section 113 and issue a suspension of determination.

In Strauss[13], an employee filed a complaint pursuant to section 74 of the Act based on the allegation that her employer, Strauss Herb Company, had failed to pay her annual vacation pay, statutory holiday pay and compensation for length of service.  The employee was ultimately successful and was awarded vacation pay, statutory holiday pay, and compensation for length of service.  Further, the employer was ordered to pay interest and three administrative penalties.  The company subsequently appealed on the basis that the Director failed to observe the principles of natural justice in making the determination and also requested that the Tribunal suspend the determination.  Contrary to the principles espoused in Miller[14], the applicant failed to provide an arguable case for the appeal on its merits, and instead relied on a bare allegation that the Director had failed to comply with the principles of natural justice in making its determination.  Moreover, the applicant did not provide any written submissions in support of its suspension request, nor deposit any amount with the Director.  Given that the applicant had the onus of establishing the basis for suspension, the Tribunal quite rightly refused suspension.  The Tribunal Member stated that “it is not for the Tribunal to divine the basis of an applicant’s suspension application.  The onus is clearly on the applicant to persuade the Tribunal on a balance of probabilities, the merits of its suspension request.”

The decision in Golden Crown[15], underscores the confusion that applicants, and their counsel, encounter when requesting a suspension of a Determination.  The applicant in this case had been ordered to pay a former employee $4,158.74, representing wages, annual vacation pay and interest.  Prior to submitting a suspension request, the applicant’s counsel had requested an explanation of the process governing the suspension of a determination.  An officer of the Tribunal responded to the applicant’s request and clarified the process.  The officer clearly laid out what was required if the applicant intended to proceed with the suspension request.  The applicant’s counsel was told the applicant was required to provide written submissions as to why the suspension should be granted.  As well, counsel for the applicant was informed that the applicant would be required to explain if any deposit would be offered to the Director in respect of the determination and if not, the reason why.  Despite receiving these instructions, the applicant failed to make any written submissions whatsoever.  The Tribunal Member found, in the circumstances, the applicant had abandoned the suspension request.  In any event, the Tribunal Member would have denied the applicant’s request for suspension as the applicant failed to discharge its burden that a suspension order was warranted in the circumstances.

In 0708964 B.C. Ltd. [16], the Tribunal considered a request to suspend a determination by an applicant that owned property on which a school was situated.  The applicant requested a suspension on the basis that the Director made an error in law and further that it would be required to sell the property in order the raise the necessary funds to post security.  While the Tribunal was not prepared to characterize the appeal as destined to fail, it did not accept the applicant’s argument that selling the land was the only practical option open to the applicant.  In addition, the Tribunal noted that the applicant was the only likely source of recovery of the complainants’ unpaid wages.  On this basis, the application to suspend the effect of the determination was refused.

Another Tribunal decision where suspension was refused occurred in Wren.[17]  The applicant applied for an order pursuant to section 113 of the Act suspending the effect of the determination pending the result of the appeal.  The applicant asserted a strong case on the merits and, accordingly, submitted that the determination should be suspended without him having to pay any funds, or alternatively, only a nominal sum.  The Tribunal briefly reviewed the merits of the appeal, as well as the financial circumstances of the applicant.  The Tribunal noted that the applicant had failed to provide any corroborating information about his financial circumstances.  The Tribunal also emphasized the fact that the applicant did not appear to have any close personal connections to the province of British Columbia apart from keeping a business office, that he “rarely visits”, in New Westminster.  The Tribunal thus concluded that a suspension order was not appropriate.

In the decision of Judy Harvey and Melvin Martin operating as The Sportsman Country Inn[18], the Tribunal refused the applicant’s suspension request.  At the time the Tribunal heard the suspension request, the Director had already taken steps to collect on the amount ordered to be paid under the determination.  In particular, the Director had issued a garnishment order on the applicant employer’s bank account.  The appeal hearing had been originally scheduled at an earlier date but was subsequently adjourned at the request of the employer.  At that time, no collection action had been commenced by the Director.  However, the Director stated that subsequently it had learned that the applicant was diverting funds into another company and that the applicant was actively trying to sell the operation.  In these circumstances, the Director felt justified in taking action on collecting on the determination.  The Tribunal noted that the employer did not respond to the submissions of the Director, nor did it offer any particulars to support the application apart from its claim that the garnishment created a financial hardship.   The Tribunal held that the applicant had not met its burden that the determination should be suspended.

In Pacific Western Costal Constructors Ltd.[19], the Tribunal considered a suspension request by the applicant employer who appealed a determination of the Director ordering it to pay $51,056.60, representing wages and accrued interest to 30 former employees.  The applicant was a subcontractor that had commenced proceedings in the British Columbia Supreme Court against the developer as the applicant alleged it was due unpaid amounts.  The applicant did not dispute that the employees were entitled to wages.  However, the applicant took the position that the disputed funds in respect of the Supreme Court action included the outstanding wages and that it was not in a position to deposit any funds with the Director.  The applicant had filed a lien against the property and the funds in dispute had been paid into the Supreme Court by the developer pending a trial.  The applicant submitted that the Director should attach the funds in Court to recover the outstanding wages instead of pursuing the applicant company.  The Director had already commenced collection procedures against the applicant, and submitted that an order to suspend the collection would unduly prejudice the collection of the unpaid wages.  The employees argued that the dispute between the applicant and the developer should not preclude them from seeking payment of their wages.

In denying the application to suspend the determination, the Tribunal was convinced that the appeal had no merit.  The Tribunal found that a dispute with a third party could not result in depriving the employees of their wages.  Further, the Tribunal emphasized the risk that the employees would never completely recover their wages given the fact that the employer had stated it had no funds to deposit pending the appeal of the determination.

In Lowan[20], the applicants appealed a determination issued by the Director ordering the applicants to pay their former employee the sum of $15,664.01 on account of unpaid wages and interest.  The applicants’ counsel requested that the determination be suspended without any deposit with the Director.  In response, the Director submitted that the determination should be suspended only if the applicants deposit the full amount required to be paid under the determination.  The applicants’ submission that a suspension order was warranted in the circumstances rested primarily on the fact that the applicants’ business was no longer operating and both applicants had limited liquid financial assets.  The Tribunal came to the conclusion that a suspension was not appropriate given the legitimate concern of whether the applicants would be able to pay the determination should it be confirmed on appeal.

C.        Reconsideration of Appeals

In The City of Surrey[21], the Tribunal Panel considered a suspension request from a determination, whereby the applicant municipality applied for a reconsideration of a decision issued by the Tribunal.  In this case, the City of Surrey (the “City”) had applied for a reconsideration of a determination that was confirmed on appeal requiring it to pay approximately $205,000 to the Director, to cover wages and other statutory entitlements to 32 persons receiving firefighting instruction.  In connection with its reconsideration application, the City applied under section 113 of the Act to have the Tribunal suspend the effect of the determination pending the outcome of the reconsideration proceedings.  The Director and the Surrey Firefighter’s Association both objected to the City’s section 113 application.

The City submitted in support of its suspension request that it did not wish to be in the position of having to recoup significant amounts of money from a number of individuals in the event that the reconsideration application was successful.  Moreover, the City confirmed that there was no issue in respect of its ability to pay.  In response, the Director submitted that a suspension request was not available pending a reconsideration application and, further, the Director maintained that the City had not followed through with an earlier promise to have funds paid to the Director.  The City responded that it was prepared to deposit the full amount with the Director in trust pending the outcome of the reconsideration provided the Director would not disburse the funds until after a decision was made.  The Tribunal first addressed the threshold question of whether it had the legal authority to suspend the effect of a determination pending a reconsideration decision.  The Tribunal held that the language, context and legislative intent of section 113 was that the power exercised by the Tribunal ought to be only exercised in the context of appellate proceedings over which it has exclusive jurisdiction.  The Tribunal then cited two earlier Tribunal decisions for the following proposition:

The language should not be read so as to permit the Tribunal to encroach on the role of      the courts or other adjudicative bodies merely because a person has appealed sometime in          the past: see Re New Pacific Limousine Service Inc.[22] and Re Paradon Computer Systems.[23]

The Tribunal rejected the Director’s narrow interpretation of the legislation whereby section 113 would only apply in the period between the determination and the original Tribunal appeal decision.  Instead, the Tribunal took a middle ground approach and interpreted the provision to read that a “person who appeals” a determination may make a section 113 request at any point while the statutory appeal process, including the reconsideration process, is ongoing.  The Tribunal felt the broad authority given to the Tribunal to suspend a determination under section 113 to ensure justice is done during an appeal supported this view.  According to the Tribunal, to exclude section 113 from the reconsideration process would prevent the Tribunal from ensuring that justice is done with respect to reconsiderations.

The Tribunal found the Director’s submissions to be more convincing with respect to discretion than that of jurisdiction.  The Tribunal identified two factors that become particularly important when a suspension request is made in the context of a reconsideration application.  First, the suspension request will generally occur prior to the Panel even making a decision on the preliminary issue of whether to even engage in the reconsideration process.  Second, the application will arise from a considered appeal decision by an Adjudicator.  In consideration of those factors, the Tribunal took the position that for the Tribunal to allow a suspension request in the context of a reconsideration application, an applicant must make a “clear and compelling” case to the Tribunal that it will suffer prejudice if a suspension order is denied.  As such, the party requesting a suspension should demonstrate to the Tribunal that it has contacted the Director in good faith, was not able to reach an agreement with respect to payment and disbursement pending the reconsideration, and that the Director’s stance pending the outcome of the reconsideration will cause them serious hardship.

Applying those principles to the case at bar, the Tribunal found that a mutually agreeable situation was available whereby the City would forward the funds to the Director on the condition they would not be paid until after the reconsideration decision was made.  It was not clear on the evidence, however, whether the City had actually forwarded the funds to the Director.  On this basis, the Tribunal encouraged the parties to resolve the disbursement issue.  In any event, the Tribunal was not prepared to suspend the determination pending the reconsideration process.  The Tribunal noted that it did not have sufficient evidence regarding the prejudice that the City would suffer if the money were paid out to the employees, nor did it have clear evidence that the Director was insisting on ordering the funds disbursed prior to the reconsideration decision.

In The City of New Westminster[24], the Tribunal considered a suspension request, in conjunction with an application for reconsideration brought by the City of New Westminster (the “City”).  The City applied for reconsideration of an Adjudicator’s decision confirming a determination finding that the City had breached the Act when it charged job applicants a $50 non-refundable fee as part of the application process.  In support of its suspension application, the City submitted that it had a meritorious appeal, that its conduct throughout the investigation process had been excellent, and that it was financially solvent.  Further, the City submitted that it would suffer prejudice because of the difficulty the City would face in recovering the amount ordered in the determination from the individuals in the event the Tribunal cancels or varies the determination.  In response, the Director raised a preliminary objection that a suspension pending a reconsideration decision was not contemplated by section 113 of the Act.  The Director also submitted that the matter was at a point at which the full amount of the determination should be deposited with the Director.  Finally, the Director submitted that at the reconsideration stage, the employer should interact directly with the Director, as a statutory fiduciary, responsible for enforcement under the Act, with respect to disbursement of funds collected.

The Tribunal dispensed with the preliminary objection that a suspension order was not available on a reconsideration application by following the identical analysis that the Tribunal undertook in The City of Surrey.[25] The Tribunal then considered the facts in the present case.  In dismissing the suspension application, the Tribunal found that the City had failed to raise any compelling reason as to why it had failed to offer to deposit the full amount with the Director.  Moreover, the Tribunal found that the City had failed to provide any basis for its submission that the Director had taken a position to the City’s prejudice with respect to the issue of disbursement during the reconsideration process.

D.        Suspension Orders Rendered Moot

In circumstances where the Tribunal releases a decision regarding a suspension request at the same time as issuing its decision on the merits of the appeal, the suspension order will be rendered moot.  This situation was illustrated by the Tribunal decision in More Group.[26] In that case, three related companies, More Marine Ltd., More Management Ltd., and Morecorp Holdings Ltd. (collectively,  the “More Group”), appealed a determination of the Director in the amount of $4,710.37.  The Tribunal’s decision specifically related to the unpaid wages of one of its former employees.  The More Group sought a suspension of the determination pending the appeal and advised the Tribunal that it was prepared to place the amounts ordered in the determination in the trust accounts of its legal counsel.  The Tribunal was convinced that the appeal had merit with respect to More Marine Ltd. and More Management Ltd.; however, because the Tribunal ordered that the determination be cancelled as against these two companies in the same decision, the suspension issue was rendered moot.  With respect to Morecorp Holdings Ltd., the Tribunal denied the application to suspend the determination as it was not persuaded that its appeal had any merit.

PART III.      INSTRUCTIVE PRINCIPLES ARISING FROM TRIBUNAL DECISIONS

Upon reviewing a number of decisions on the suspension of a determination, it became apparent to the Author that applicants are often times confused by the process and do not adequately prepare for this application.  One plausible explanation is that applicants are primarily focus on the substantive aspects of the appeal to the detriment of the suspension application.  This may be exacerbated by the requirement set out in the Rules, whereby an applicant must file written submissions in respect of the application for suspension at the same time as filing the appeal or request for reconsideration.  No matter the reason, applicants are cautioned against taking a casual approach to these applications given that it is the applicant who bears the onus of satisfying the Tribunal that a suspension is warranted.

In many cases, applicants have relied on the strength of their appeal on its merits in support of their submission to post little or no money with the Director.  In the Author’s view, this reliance is misplaced.  In considering what terms and conditions should be placed on the suspension order, Tribunal Members place more weight on whether depositing money with the Director will have a prejudicial effect on the applicant.  Although the strength of an appeal on its merits is helpful in seeking a lesser amount to be deposited, especially if the lesser amount is supported by an applicant’s own calculations, the overriding factor that a Tribunal will consider in determining whether a lesser amount is justified is whether the applicant will be prejudiced.

Based on the decision in Tricom Services Inc.[27], applicants should be cautioned against claiming that they are able to pay the full amount under the determination, while also making a general assertion that they will be unduly financially prejudiced.  The Tribunal in that case highlighted this inconsistency and noted that without some “unique prejudice flowing from having to post the full amount of the Determination” it was of the view that a determination should only be suspended if the full amount of the determination is deposited with Director.

A number of common mistakes made by applicants have emerged in a number of Tribunal decisions.  Five common errors are set out below:

  • Failing to deposit the full amount that is required to be paid under the determination with the Director, or some lesser amount with the Director which the Tribunal would think adequate in the circumstances; [28]
  • Neglecting to provide written reasons for why a suspension of the determination should be ordered;[29]
  • Failing to provide corroborating  documents in support of a contention of undue financial hardship;[30]
  • A bare and unspecified claim that the Director failed to observe the principles of natural justice in reaching its determination; [31] and
  • Failing to set out the nature of the prejudice in requesting a suspension on the ground of prejudice.[32]

The following seven instructive principles for both applicants and adjudicators are set out as follows:

  • Adjudicators should review section 113 applications through a two-stage analysis[33]:

(1)        The Tribunal should determine whether it should suspend the determination.

(2)        If a suspension is warranted, the Tribunal should then consider what terms and conditions are suitable.

  • It is the applicant’s burden to show why a determination order should be suspended;[34]
  • If there is a risk that employees will not be able to fully recover what is owed to them, the Tribunal is unlikely to grant a suspension request made by an employer;[35]
  • A suspension of a non-monetary determination is permitted;[36]
  • A suspension will not be granted where it appears the company is trying to actively avoid collection actions;[37]
  • A Tribunal will view the adequacy of a proposed deposit not just from the perspective of the applicant employer, but also from the perspective of any employees whose rights may be affected by the granting of a suspension order;[38] and
  • For a Tribunal to award a suspension in conjunction with a reconsideration application, an applicant must demonstrate a “clear and compelling” case that it will suffer serious prejudice if a suspension order is not granted.[39]

CONCLUSION

The issuance or denial of a suspension may have serious financial consequences for both the applicant and respondent in a dispute.  The granting of a suspension is a discretionary remedy and applicants should not assume their request will be approved as a matter of course.  With careful planning, however, chances for a successful outcome are significantly increased.  Prior to initiating a request, an applicant must ensure compliance with the legislative framework and provide a detailed evidentiary record for all submissions.



[1] Tricom Services Inc., BC EST #D420/97

[2] Motion Works, BC EST #D345/946

[3] TNL Paving Ltd. et al., BC EST # D002/97

[4] Tricom Services Inc., supra

[5] Miller, BC EST # D090/10

[6] Miller, supra

[7] Kootenai Community Centre Society, BC EST # D001/12

[8] Wen-Di, BC EST # D307/99

[9] Chatzispiros, EST #D520/98

[10] Holt, BC EST #D123/06

[11] RTS, BC EST #D070/03

[12] Tricom Services Inc., supra

[13] Strauss, BC EST # D095/10

[14] Miller, supra

[15] Golden Crown, BC EST # D010/09

[16] 0708964 B.C. Ltd., BC EST # D126/10

[17] Wren, BC EST #D099/10

[18] Judy Harvey and Melvin Martin operating as The Sportsman Country Inn, BC EST #D411/00

[19] Pacific Western Coastal Constructors Ltd., BC EST D#074/08

[20] Lowan, BC EST D#254/00

[21] The City of Surrey, BC EST #D049/99

[22] Re New Pacific Limousine Service Inc., BC EST D#054/96

[23] Re Paradon Computer Systems, BC EST D#221/98

[24] The City of New Westminster, BC EST D#518/98

[25] The City of Surrey, supra

[26] More Group, BC EST #D078/08

[27] Tricom Services Inc., supra

[28] RTS, supra

[29] Strauss, supra

[30] 0708964 B.C. Ltd., supra

[31] Strauss, supra

[32] TNL Paving Ltd. et al,, supra

[33] Miller, supra

[34] Strauss, supra

[35] Pacific Western Coastal Constructors Ltd., supra

[36] TNL Paving Ltd. et al., supra

[37] Judy Harvey and Melvin Martin operating as The Sportsman Country Inn, supra

[38] Tricom Services Inc., supra

[39] The City of Surrey, supra

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Posted by Shafik Bhalloo (posts) and Devin Lucas (posts) | Filed under Labour & Employment | ...
Herb Silber
Tuesday, March 18th, 2014    Posted by Herb Silber (posts)
Herb Silber
Herb Silber brings a strong combination of experience, knowledge and empathy to the arbitration process as Arbitrator or Counsel. Herb’s approach creates the positive, respectful atmosphere critical to a successful arbitration process.

This is the third and final installment in the series on the topic of how arbitrations can be made more cost effective and efficient. The previous two articles considered strategies that could be deployed at the time the arbitration clause is negotiated and inserted in an agreement and at the time the dispute arises.

The biggest difference in the strategies during the arbitration itself is that this is the forum in which the Arbitration Panel has the most active role. At this stage the parties will have agreed, or will have been guided by the Arbitration Panel, as to the shape of the process and rules that will inform the Arbitration, so it leaves the greatest scope for the Arbitration Panel to exercise their discretion to assist in making the arbitration both cost effective and efficient. The Panel can, by their skill and creativity be part of a solution, or conversely, be part of the problem. The overarching principle that arbitrations are governed by can be found in Rule 19 (or a variation thereof) of the Rules of the BC International Domestic Arbitration Centre (BCICAC) which states:

  1. Subject to these Rules, the arbitration tribunal may conduct the arbitration in the manner it considers appropriate but each party shall be treated fairly and shall be given full opportunity to present its case.
  2. The arbitration tribunal shall strive to achieve a just, speedy and economical determination of the proceeding on its merits.

 

It is important for both Counsel and the Arbitration Panel to always be mindful of this rule when they are considering how the Arbitration will be conducted, both prior to the Hearing and at the Hearing. Rule 19 provides a balance between equity and efficiency, so that while each party must be treated fairly, they must also recognize that the arbitration process does not guarantee perfect justice.

Rule 19 gives the Arbitration Panel the discretion in the procedure to use in adopting its decisions. As an example, there is Authority to support the proposition that the Courts should not review an interlocutory ruling (not being an “award”). However, given that Arbitration is built on a consensual process, the experienced Arbitration Panel, should always try to encourage the parties to come to or build a consensus as to how the arbitration should proceed. The ability to do this separates the good arbitrators, who will be sought out, from others who do not have this mindset or skill.

Some ideas that should be considered by the Arbitration Panel, with the participation of the parties, would include the use of written submissions wherever possible, including having the Hearing done by way of a written hearing. This could be particularly useful if the facts are really not in dispute and could certainly result in a saving of time and costs. Other ways to make the Arbitration more cost effective may be to carefully consider, what if any cross examination may be needed and should there be time limits on it. Where expert witnesses are retained by both parties, should they meet and try to provide a “joint report identifying those matters which are not in dispute and those which are in dispute.”[1]

The ideas presented in the previous paragraphs are but a few that could be considered by the Arbitration Panel, working in conjunction with the parties to ensure that the Arbitration is cost effective and efficient, while still maintaining the important touchstone of “fairness”.

[1] Rule 27(3) BCICAC Rules

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Posted by Herb Silber (posts) | Filed under Litigation and ADR | ...
Shafik Bhalloo
Tuesday, January 7th, 2014    Posted by Shafik Bhalloo (posts) and Devin Lucas (posts)
Shafik Bhalloo
Shafik Bhalloo has been a partner of Kornfeld LLP since 2000. His practice is focused on labour and employment law, and on commercial and civil litigation. He is also an Adjudicator on the Employment Standards Tribunal and an Adjunct Professor in the Faculty of Business Administration at Simon Fraser University.
Devin Lucas
Devin Lucas maintains a general civil litigation practice with a focus on corporate and commercial litigation and landlord tenant and real property disputes. His commercial litigation experience includes contractual disputes, employment matters, and debtor-creditor law.

 

by Devin Lucas and Shafik Bhalloo

In IBM Canada Limited v. Richard Waterman[1], Richard Waterman (“Waterman”) was employed by IBM Canada Ltd. (“IBM”) for approximately 42 years before he was dismissed on March 23, 2009 without cause.  Waterman, aged 65, was given two months’ notice.  Prior to his dismissal, Waterman had been a long-standing member of IBM’s defined benefit pension plan (the “Plan”).  According to the terms of the Plan, IBM contributed a portion of Waterman’s salary to the Plan on his behalf.  The Plan guaranteed certain benefits upon Waterman’s retirement.  Upon termination, Waterman was eligible for a full pension; however, both his employment contract and the Plan did not address whether Waterman could receive his salary and pension concurrently.  Waterman refused to accept the severance package offered by IBM and filed suit, claiming damages for wrongful dismissal.

 

Trial Decision

One of the primary issues before the British Columbia Supreme Court was whether the pension benefits paid to Waterman should be deducted from an award for damages for wrongful dismissal.   After a summary trial hearing, the Trial Court awarded Waterman 20 months’ notice and refused to deduct the pension benefits paid to Waterman during the notice period in determining his damages.  With respect to the issue of the deductibility of pension benefits, the Trial Court held that it was bound by the British Columbia Court of Appeal decision in Girling v. Crown Cork & Seal Canada Inc. [2]  In Girling, the Court of Appeal had expressly rejected the argument that retirement benefits must be deducted from an award of damages.  The Trial Court cited Girling, at paragraph 46, as follows:

It was argued on behalf of the employer that the governing principle in awarding damages for wrongful dismissal is prima facie the amount the employee would have earned had the employment continued, in this case, until the end of the notice period.  It was submitted that this employee would not have been entitled to receive a retirement pension while still working and receiving pay. In short, an employee is not entitled to pension and pay at the same time and without deduction one from the other.  I do not accept this.

I am in accord with the resolution of this conundrum by the Chambers judge who determined that the pension benefits of the employment contract are collateral benefits of the employment contract which should not be considered income and should not be deducted from damages which are income in lieu of notice. The damages (pay in lieu of notice) flow from breach of the employment contract and the collateral pension benefits are payable pursuant to the contractual arrangements therefor. They are not to be modified by the appearance of duplication.

In the Trial Court’s opinion it was bound by Girling and noted that until a higher court holds to the contrary, pension benefits are not deductible from an award of damages for wrongful dismissal.

The British Columbia Court of Appeal Dismisses Appeal

IBM appealed the decision to the British Columbia Court of Appeal and asked for an order that pension benefits paid to Waterman during the applicable notice period be deducted from the award of damages against IBM.   Madam Justice Prowse, writing for a unanimous court, dismissed IBM’s appeal.  In so holding, Madam Justice Prowse found that the pension benefits paid to Waterman were not a substitute for salary, nor were they payments made in lieu of salary.

According to Madam Justice Prowse, whether or not a dismissed employee would be entitled to both salary and payment of his or her pension benefits during the notice period turns on the interpretation of the contractual relationship between the employer and the employee.  As noted above, there was nothing in the Plan or the employment contract that prohibited Waterman from receiving pension benefits and salary simultaneously.

Madam Justice Prowse went on to hold that it is not inherently contradictory for an employee to receive both a salary and pension benefits and, in fact, there are many examples of that occurring in today’s workforce, including employees receiving statutory pension benefits, private pension benefits from employment, and payments from an employer where the employee has earned a pension, retires, and is subsequently hired back.

In obiter, Madam Justice Prowse briefly considered broader policy arguments and stated at para. 64:

[64]   I would add that I do not take the position that Mr. Waterman is entitled to his pension benefits because it would be “wrong” for IBM to receive a set-off of these benefits against salary.  In other words, my decision is not predicated in any way on the concept of punishing a wrongdoer.  I do not think that notions of “right” and “wrong” are useful in dealing with what is essentially a contract analysis.  I note as a practical matter, however, that if pension benefits could be deducted from salary in circumstances such as these, the result could be viewed as an invitation to employers facing economic hardship to terminate senior employees with many years of service who have vested pension rights and entitlement to a significant pension, rather than more junior employees without vested rights, since laying off the former would result in a significant offset of pension against salary in estimating damages for wrongful dismissal.  A policy argument could be mounted for arguing that the employment contract should be interpreted in such a way to avoid such a result, but no such policy argument was advanced in this case.

 

The Supreme Court of Canada Decision

On Appeal by IBM, the Supreme Court of Canada considered the issue of whether Waterman’s pension benefits should be deducted from the wrongful dismissal damages payable by IBM.  In a 7-2 divide, the majority of the Supreme Court of Canada dismissed IBM’s appeal and ruled that Waterman’s pension benefits were not deductible.

Justice Cromwell, writing for the majority, held that employee pension payments, including payments from a defined benefits plan, should normally not reduce the damages otherwise payable for wrongful dismissal.  Justice Cromwell found that pension benefits are a type of deferred compensation for the employee’s service and can be likened to a form of retirement savings.  Justice Cromwell rejected the proposition that pension benefits are intended to protect an employee from wage loss due to unemployment.  According to Justice Cromwell, two factors weighed heavily in favour of not deducting Waterman’s pension benefits from his damages award.  Firstly, Waterman had contributed to the Plan from his salary.   Secondly, as noted above, pension benefits are not intended to indemnify an employee for lost wages.  On this basis, Justice Cromwell concluded that Waterman’s interest in the pension benefits had similar hallmarks to property rights and, accordingly, Waterman had enforceable rights over the benefits.

Justice Cromwell briefly touched upon certain policy concerns.  Specifically, Justice Cromwell expressed unease regarding possible incentives for employers to terminate employees possessing pensions rather than non-pensionable employees and stated at para. 93:

[93]   These factors are also relevant here, although, in this case, they support not deducting rather than deducting the benefits. Unlike in Sylvester, non-deduction in this case promotes equal treatment of employees. If deduction is permitted, an employee who is eligible to receive his or her pension but has not reached 71 years of age can, by means of wrongful dismissal, be forced to retire and draw on his or her pension benefits. By contrast, an employee who is not entitled to his or her pension receives either a deferred pension or the commuted value of it plus full damages for wrongful dismissal and an employee over the age of 71 receives both pension and employment income.  Deducting the benefits only in the case of employees in Mr. Waterman’s situation would constitute unequal treatment of pensionable employees. Moreover, deductibility seems to me to provide an incentive for employers to dismiss pensionable employees rather than other employees because it will be cheaper to do so. This is not an incentive the law should provide. While this is a broader policy consideration, it is directly related to the benefit in question and has a reasonable basis in fact.

In a strong dissent, Chief Justice McLachlin and Justice Rothstein found that Waterman’s pension benefits should be deducted from the calculation of his damages award for wrongful dismissal.  The dissent focused on the governing principle of damages in the case of breach of contract, which is to put the non-breaching party in the position he or she would have been in had the contract been performed.  By declining to deduct Waterman’s pension benefits, the dissent ruled that Waterman was receiving a windfall, and that Waterman would get more than he bargained for and would charge IBM more than it agreed to pay.  In contrast to the majority’s approach, the dissent found that employer-provided benefits could not be separated from an employment contract.  In the dissent’s view, they are to be considered as one “single contract” and, as such, Waterman’s entitlements largely depend on the ordinary rule of contract damages.

The Effect of the Supreme Court of Canada’s Ruling

This leading decision of the Supreme Court of Canada is noteworthy as it affirms the view that pension benefits should not ordinarily be deducted from wrongful dismissal damages.  This ruling favours pension-eligible employees and provides some much-needed certainty to this area of law.  Nevertheless, given the strong dissent advanced by Chief Justice McLachlin and Justice Rothstein, there is still some possibility of debate in future cases on the deductibility of pension benefits from wrongful dismissal damages.  Moreover, it is unclear how a Court would rule in the face of an employment contract or pension plan that contained a clause holding that wrongful dismissal damages and pension benefits are not to be paid concurrently.


[1] 2013 SCC 70

[2] (1995), 9 B.C.L.R. (3d) 1

 

Posted by Shafik Bhalloo (posts) and Devin Lucas (posts) | Filed under Other | ...
Herb Silber
Thursday, January 2nd, 2014    Posted by Herb Silber (posts)
Herb Silber
Herb Silber brings a strong combination of experience, knowledge and empathy to the arbitration process as Arbitrator or Counsel. Herb’s approach creates the positive, respectful atmosphere critical to a successful arbitration process.

In my last article I looked at what could be done at the time the arbitration clause is negotiated to advance the efficiency and cost effectiveness of the Arbitration. How that process ends up will be a harbinger as to what can or cannot be done at the next stage, when the dispute arises.

Regardless, what is first necessary for one to do is to carefully read the Arbitration Clause and the Agreement it is found in to ensure that there are no false steps. One of the surest ways to protract the arbitration is to give fodder to the other side, should the party seeking to invoke arbitration makes a misstep. Some points to consider, therefore, to avoid this occurring are to identify if there are any limitations to be found in the agreement to permit the arbitration of the specific dispute. If there are, have “they passed” or do they need to be addressed? Has the dispute that has arisen such that it can be arbitrated? It may be for instance that the dispute is not yet “ripe.” Absent a” dispute” as contemplated by the Agreement containing the Arbitration Clause, there is nothing to arbitrate.

One consideration in British Columbia is whether to engage the BC International Domestic Commercial Arbitration Centre (BCICAC) to administer the Dispute, assuming they are not designated to do so in the Agreement under scrutiny. In the context of the objective that this article is addressing the benefit of having the BCICAC administer the Arbitration is to put time limits on the process as a starting point. As an example, Section 12 of the BCICAC Rules set out a time table for the appointment of an arbitrator after the Arbitration is deemed to have commenced (the filing of the Submission to Arbitrate with BCICAC along with the commencement fee). If the parties cannot agree on the appointment of an arbitrator within the time limits, one of the parties may request that the BCICAC appoint the arbitrator. There are similar default provisions in favour of the BCICAC if it is a three person arbitration panel to be appointed.

In my earlier articles I have written about the consideration of proceeding to mediation of a dispute before an arbitration could be sought. The challenge with that, as I have noted, is that if a provision to force the parties to choose that route is absent from the arbitration clause in the Agreement, then there is no mechanism to force the recalcitrant party to follow this path. That said, one option that might be considered to encourage the recalcitrant party to accept mediation is to hold over them the spectre of being penalized in costs. Rule 30 of the BCICAC Rules permits a party to make a Settlement Offer that the Arbitrator can consider, if it is rejected by the other side, when it comes to deciding issues of costs. I see no reason why a “settlement offer” by one party asking that the other refer the dispute to mediation before arbitration, once rejected, could not be a consideration by an arbitrator when it comes to deciding costs of the Arbitration. The BCICAC Rules gives the Arbitration Panel a wide discretion in deciding costs at the conclusion of the Arbitration.

Posted by Herb Silber (posts) | Filed under Litigation and ADR | ...
Dan Parlow
Thursday, December 12th, 2013    Posted by Dan Parlow (posts)
Dan Parlow
Dan is a partner at the firm of Kornfeld LLP. He helps resolve commercial disputes for clients including investors, brokerage houses and financial institutions in the realization of claims by creditors and over disputed investments; entrepreneurs in claims over business assets, shareholder and partnership interests and commercial property; estates, trusts and beneficiaries over disputed wills, trusts and related claims; clients of realtors, lawyers, accountants, brokers and investment advisors; and businesses in the telecom, oil & gas and high-tech industries.

The Supreme Court of Canada has opened the door more widely to consumer class actions in a case which follows an Ontario Securities Commission settlement: AIC Limited v. Fischer, 2013 SCC 69.  The decision will be equally applicable to class action certification motions in British Columbia.

One of the fundamental requirements to certification of a class action is that (to use the Ontario language) “a class proceeding would be the preferable procedure for the resolution of the common issues”:  Class Proceedings Act, 1992, S.O. 1992, c. 6, s. 5(1)(d).  The Court approached this “preferability requirement” from a consumer perspective, that is, whether the proposed class proceeding was preferable to other options (whether within or outside of the courts) from the point of view of providing access to justice.

In this case, the proposed class action relates to allegations of “market timing” against mutual fund managers who had previously entered into a settlement agreement with the Ontario Securities Commission following an OSC investigation.   That settlement specifically contemplated the prospect of civil proceedings being brought on behalf of investors.  Market timing is an investment strategy allowing some investors to profit from short-term market cycles by trading into and out of market sectors as they heat up and cool off.   The OSC, in its proceedings, had alleged that five defendant funds had engaged in such activities in disregard to the public interest and contrary to provisions in their prospectuses limiting the frequency of trading.    According to the settlement agreement, this practice breached the mutual fund manager’s requirement to exercise the powers and to discharge the duties of its office honestly and in good faith and in the best interests of the mutual fund and, in connection therewith, to exercise the degree of care, diligence and skill that a reasonably prudent person would exercise in the circumstances. “Compliance with this duty requires that a mutual fund manager have regard to the potential for harm to a fund from an investor seeking to employ a frequent trading market timing strategy and take reasonable steps to protect a mutual fund from such harm to the extent that a reasonably prudent person would have done in the circumstances.”

The Supreme Court approached the preferability requirement by reference to what it termed the three principal goals of class actions, namely judicial economy, behaviour modification and access to justice.  In this case, the latter factor was the focus of the Court’s decision.  In a unanimous opinion, Mr. Justice Cromwell wrote at para. 26 that “[a] class action will serve the goal of access to justice if (1) there are access to justice concerns that a class action could address; and (2) these concerns remain even when alternative avenues of redress are considered…. To determine whether both of these elements are present, it may be helpful to address a series of questions” of which the court enumerated the following:

  • What Are the Barriers to Access to Justice?
  • What Is the Potential of the Class Proceedings to Address Those Barriers?
  • What Are the Alternatives to Class Proceedings?
  • To What Extent Do the Alternatives Address the Relevant Barriers?
  • How Do the Alternatively Proposed Proceedings Compare to the Class Proceedings?

Since the evidence at the certification stage will not allow for a detailed assessment of the merits or likely outcome of the class action or any alternatives to it, the court emphasized that the evidentiary burden applicable on a motion for certification is low.  This analysis has been applied both  to the preferability requirement in Ontario and to both the preferability and the commonality requirements to certification in the context of the similar British Columbia class actions regime: Pro-Sys Consultants Ltd. v. Microsoft Corporation, 2013 SCC 57.   The test requires there to be “‘some basis in fact’ before certification will be approved rather than for the court resolve conflicting facts and evidence at the certification stage”

The court further held that the limited scope of the factual inquiry on the certification motion means that the motions court will often not be able to compare the potential recoveries and/or methods of distribution in the event of success in the class action and in the alternative or alternatives which may be available.

Being somewhat unusual in that the OSC proceeding had already run its course, the underlying Divisional Court had found it a convenient opportunity to consider the preferability requirement by reference to whether “the plaintiffs have achieved full, or at the very least substantially full, recovery”.  Since a mathematical calculation had led the Divisional Court to conclude that “the plaintiffs’ current claim against AIC and CI, over and above the OSC settlement, [was] $333.8 million” (para. 4), which the court qualified as a “significant amount of money” (para. 8), it had used that analysis as a basis to conclude that maintaining a class action was preferable to other options.

However, the Supreme Court ultimately rejected that analysis as an overly narrow assessment having regard to the nature and limitations of the certification process.  Adopting the mathematical test would set the stage for future certification motions to be considered based on a detailed assessment of the merits, which the Supreme Court has repeatedly said is not appropriate for that stage.   The court held at para. 46 that “[w]ithout that [detailed] sort of examination, the most that can be done is to assess on the appropriately limited evidentiary record whether the access to justice barriers that may be addressed by a class proceeding remain even after the alternative process has run its course.”  In the end, the court held that although in assessing the comparative analysis, the representative plaintiff will necessarily have to show some basis in fact for concluding that a class action would be preferable to other litigation options, that “plaintiff cannot be expected to address every conceivable non-litigation option in order to establish that there is some basis in fact to think that a class action would be preferable.”  In such a situation, the evidentiary burden then shifts to the defendant who relies on a specific non-litigation alternative to raise it.

In assessing the access to justice question, the court considered first, the economic barrier arising from the nature of the claim – being effectively a series of small claims which individually are not large enough to support viable actions.  Access to justice requires access to a process that has the potential to provide in an economically feasible manner just compensation for the class members’ individual economic claims should they be established. The second barrier is that, as a result of the nature of the claim, “there is potentially no access to a fair process, geared towards protecting the rights of class members, to seek a resolution of the common issues for what could potentially be a class of over a million members. Thus, traditional litigation cannot achieve either the substantive or the procedural dimensions of access to justice in a case such as this.”

The court concluded that the proposed class action would address both substantive and procedural barriers, by making it economically and procedurally feasible to advance on behalf of the class a group of individual claims that would otherwise not be feasible to pursue individually.   Since the mutual fund dealers had not discharged their burden of proving the existence of a realistic alternative procedure for providing access to justice, the class action was certified.

 

Posted by Dan Parlow (posts) | Filed under Financial Transactions, Litigation and ADR | ...