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w w w . c a n a d i a n l a w y e r m a g . c o m N O V E M B E R / D E C E M B E R 2 0 1 8 53 Justice finalized certification of the common issues against the Deloitte defendants in January. Class action plaintiffs normally seek overtime pay, vacation pay and statutory holiday pay, as well as Canada Pension Plan and Employment Insurance payments on their behalf, says Monk- house. "If it's found they've been misclassified, they'd be owed all this." Contractors are not owed overtime, but employees are, and dependent contractors are also owed notice of termination. Benefits are payable to employees only, he notes. "More recently, judges have been more willing to certify" these types of class action, he says, and courts have been more willing to certify "misclassification" suits. In Heller v. Uber Technologies Inc., the agreements between the class plaintiff and Uber included an agreement to arbitrate disputes, and Uber successfully moved to have the proposed class action stayed in favour of arbitration in the Netherlands. The decision by Perell to stay the proposed class action is under appeal. Another class action, Omarali v. Just Energy, was certified in 2016. In that case, Justice Edward Belobaba of the Ontario Supe- rior Court found that many of the "independent contractors" sell- ing hot-water heaters door to door on commission "were making less than minimum wage," says Monkhouse. And in Rosen v. BMO Nesbitt Burns Inc., the plaintiff invest- ment advisors said they had been misclassified as independent contractors rather than employees and claimed unpaid overtime. The settlement, achieved after two days of mediation in 2016, saw the defendant pay $12 million for class member compensation and $500,000 to cover the costs of administration. With legal fees so high in class actions, "there can be a chill- ing effect on people to bring claims, unless they are quite strong," says Monkhouse. In the Deloitte suit, however, "we won that motion [for certification] after two days of hearings and were awarded $353,000 in legal fees," representing a partial amount of class counsel's fees. Counsel was pleased in that case, because the system of having plaintiffs pay costs "discourages otherwise meritorious class actions," he says. "Our employer clients are paying more attention to how they're classifying people," says Stam. "Especially in the gig econ- omy — and the startup world especially — you're not ready to be an employer initially." To avoid litigation, employers must draft contracts carefully. "If you want to establish an actual, real contractor relationship, there's some important language to include," she says, as the "common- law default will be" employee status. In November 2017, Ontario's Bill 148 created a default classification, she notes, which put the onus on an employer to prove that an employer-employee relationship did not exist. Contractors should issue an invoice each month, for exam- ple, and it must be clear who's providing the tools. "Working remotely doesn't make you an independent contractor," says Stam. L E G A L R E P O R T Order # 804218-65203 $537 2 volume looseleaf supplemented book Anticipated upkeep cost – $480 per supplement 4-6 supplements per year Supplements invoiced separately 0-88804-218-3 Shipping and handling are extra. Price(s) subject to change without notice and subject to applicable taxes. Jurisdiction: Canada (National) Canadian Employment Law Stacey Reginald Ball More than 7,000 cases cited Canadian Employment Law is a one-stop reference that provides a thorough survey of the law and analysis of developing trends, suggesting potential avenues of attack as well as identifying potential weaknesses in the law. Canadian Employment Law has been cited by the Supreme Court of Canada, in superior courts in every province in Canada, and is used in law schools throughout Canada. Available risk-free for 30 days Order online: www.carswell.com Call Toll-Free: 1-800-387-5164 In Toronto: 416-609-3800 Also available online on WestlawNext® Canada EmploymentSource™ © 2018 Thomson Reuters Canada Limited 00234UC-84746-CE Also available through your web browser or download to your desktop or tablet. Learn more about ProView eBooks at store.thomsonreuters.com/ ProView * Thomson Reuters ProView options not applicable to bookstores, academic institutions, and students. 82 Scollard Street, Toronto, Canada, M5R 1G2 Contact Stacey Ball at (416) 921-7997 ext. 225 or srball@82scollard.com web: www.staceyball.com Ball Professional Corporation Excellence in Employment & Labour Law • Counsel in Leading Cases • • Author of Leading Treatise • Wrongful Dismissal Employment Law Human Rights Post Employment Competition Civil Litigation Appellate Advocacy Disability Referrals on behalf of employees and employers respected all_CL_Mar_12.indd 1 12-03-13 2:27 PM

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