McCracken v. Canadian National Railway Company
Unpaid Overtime Class Action
Update – June 26, 2012 – The class action has been dismissed
The Ontario Court of Appeal granted the CN’s appeal of the decision to certify the class action. It held that the class action should not have been certified since there was not sufficient commonality between the individuals in the proposed class.
The threshold issue in the case was whether the supervisors in the proposed class had been misclassified (since supervisors are not entitled to overtime under the Canada Labour Code). The Court found that the members of the proposed class worked in many different positions with different job duties, and therefore the question of misclassification required an individualized assessment and could not be determined on a class-wide basis. Accordingly, the decision certifying the class action was overturned.
The Court of Appeal’s decision brought an end to this class action.
Update – Tuesday, August 17, 2010:
Justice Perell of the Ontario Superior Court of Justice has certified the class action.
What the class action is about:
On March 25, 2008, our firm and Roy O’Connor LLP commenced an unpaid overtime class action against the Canadian National Railway Company (“CN”).
The lawsuit alleges that CN misclassified first line supervisors as management employees in order to escape its obligations to pay overtime under the Canada Labour Code. The lawsuit further alleges that CN first line supervisors across Canada are routinely required to work hundreds of hours of overtime annually for which they are not paid.
We are working with Chivers Carpenter lawyers in Alberta and Melançon Marceau Grenier Sciortino in Quebec to ensure that employees in Western Canada, Ontario, and Quebec/Eastern Canada have access to local counsel to determine whether they qualify to be a member of the class.
The representative plaintiff:
The lawsuit was brought by Michael McCracken, a CN “first line supervisor”, on behalf of over one thousand present and former CN first line supervisors across Canada.