McCracken v. Canadian National Railway Co. 2012 ONCA 445
Practice - Persons who can sue and be sued - Individuals and corporations - Status or standing - Class or representative actions - Certification - Considerations (incl. when class action appropriate)
McCracken, a former Canadian National Railway Company (CN) employee, brought a motion to certify a class action, alleging that CN had unlawfully classified all its “first line supervisors” (FLSs) as “managers” thus depriving them of overtime and holiday wages payable under the Canada Labour Code. Under s. 167(2) of the Code, the overtime and maximum hours of work rules of the Code did not apply to employees who “are managers or superintendents or who exercise management functions”. McCracken advanced claims of violation of the Code, breach of contract, breach of a duty of good faith, unjust enrichment, and negligence. He submitted that common issues arising from those claims were informed by the contract of employment, CN’s duties and obligations under the Code, and CN’s failure to develop and implement reasonable and effective systems, procedures, and practices to ensure that first line supervisors are or were properly classified and that all of their hours worked, including overtime and holiday hours, were properly recorded. CN brought a motion to dismiss the action under rule 21 of the Civil Procedure Rules, arguing that the court lacked jurisdiction to hear the proposed action.
The Ontario Superior Court, in a decision reported  O.T.C. Uned. 4520, rejected CN’s jurisdiction argument. However, the motions judge struck, dismissed and stayed various elements of the plaintiff’s claims in negligence and breach of contract. In the result, the motions judge granted the motion for certification, but in doing so, significantly re-drafted the common issues. McCracken (proposed plaintiff) appealed and CN cross-appealed. (As explained in Footnote 2 of the judgment below, the matter proceeded directly to the Court of Appeal.)
The Ontario Court of Appeal allowed CN’s appeal from the certification order and set aside that order. The absence of a core of commonality was fatal to the certification of the action. That conclusion made it unnecessary to decide the correctness of the motions judge’s rulings on the rule 21 motion, or to review his rulings on the other proposed common issues and preferable procedure.
Editor’s Note: This case was one of a trilogy of cases dealing with certification of class actions - see also Fresco v. Canadian Imperial Bank of Commerce,  O.A.C. TBEd. JL.007; 2012 ONCA 444 and Fulawka v. Bank of Nova Scotia,  O.A.C. TBEd. JL.006; 2012 ONCA 443.