2017 ONSC 1409, 2017 ONSC 1409

CITATION : Bozsik v. Livingston, 2017 ONSC 1409 COURT FILE NO.: 5270/14 DATE: 2017-03-01 SUPERIOR COURT OF JUSTICE - ONTARIO RE: MICHAEL BOZSIK, Plaintiff AND: LIVINGSTON INTERNATIONAL INC., Defendant BEFORE: Gray J. COUNSEL: David O’Connor and Adam Dewar, Counsel for the Plaintiff Lisa Talbot, Counsel for the Defendant HEARD: February 28, 2017 ENDORSEMENT [ 1 ] I conducted a case conference concerning the formal order as to notice to class members.

As a practical matter, the parties resolved all issues in dispute except for two: first, whether the defendant should be required to disclose the process and the approach used to discern the identity of members of the class; and the cut-off date for defining membership in the class. This is particularly important with respect to the notice to be given to members. [ 2 ] I note, only because it affects the issue of costs, that neither party complied with the timelines specified by me in my endorsement dated January 25, 2017, for the filing of material.

As a result, I had little opportunity to review the material that was filed very late. [ 3 ] The defendant has undertaken to furnish counsel for the plaintiff with a complete list of members of the class. I see no need to require the defendant to give particulars as to the process it uses in identifying them. The defendant, represented by competent counsel, can be relied upon to come up with an accurate list.

If disputes arise, subsequently, as to whether any particular person is or is not a member of the class, it may be necessary at that point to require disclosure of the methods used by the defendant to identify members of the class. However, unless that point is reached I see no compelling need to require this information now. [ 4 ] With respect to a cut-off date, the caselaw, such as it is, is inconsistent as to whether the date should be the date of certification, or the date notice is given to the class members, or some other date.

It is not clear that matters of principle have been debated at any length in the cases that have been drawn to my attention. [ 5 ] I see no reason why the date notice is given should not be the appropriate cut-off date. That date is approximately five months after the date of certification.

I assume that there will not be an extraordinarily large number of additional potential members of the class that will have been added since the date of certification. [ 6 ] Counsel for the defendant argues that there is no evidence that the terms and conditions of employment of any persons hired since the date of certification are the same as, or different from, the terms and conditions of employment in existence prior to the date of certification. Assuming that to be so, I do not think it is a relevant consideration for the purposes of identifying a specific cut-off date.

If it is the defendant’s position that the terms and conditions of employment, as they relate to overtime, are significantly different for persons hired after the date of certification, this is an issue that can be raised and dealt with by the trial judge.

At this point, however, I see no reason why persons who were hired within that somewhat short window should not at least be given notice that their rights may be affected, and be given the opportunity to remain within the class at this stage, or opt out. [ 7 ] Counsel advised me at the hearing on February 28, 2017, that the draft order prepared by counsel for the plaintiff is satisfactory. The main dispute was with respect to the attached notice of certification.

Counsel for the defendant identified for me some rather minor differences between the notice prepared by plaintiff’s counsel and the notice prepared by defendant’s counsel. Except for the identification of the cut-off date, counsel for the plaintiff advised that he has no particular quarrel with the minor changes suggested by counsel for the defendant. [ 8 ] I assume that with the benefit of this endorsement, counsel can now agree on the form of the order itself and the attached notice.

Assuming that to be so, I invite counsel to furnish to me a clean copy of the order and attached notice, which I will sign. [ 9 ] If it turns out that there are any remaining differences between the parties, I invite them to advise me in writing, with any submissions they care to advance, and I will deal with them. [ 10 ] Since it appears that each party has been successful on one of the issues raised, and because both parties filed their material late, I am not inclined to award any costs of the attendance on February 28, 2017. Gray J.

Date: March 1, 2017