Is Class Action a Preferable Remedy for Independent Contractors? A Case Study on the Proposed Canadian Hockey League Class Action

• Author: Yaroslavna Nosikova
• Pages: 125-156

125

IS CLASS ACTION A PREFERABLE

REMEDY FOR INDEPENDENT

CONTR ACTORS? A CASE STUDY

ON THE PROPOSED CANADIAN

HOCKEY LEAGUE CLASS ACTION

Yaroslavna Nosikova

Abstract: A number of putative actions have been f‌iled

recently that allege mi sclassif‌ication of employees as indepe nd-

ent contractors. Left unchanged, such misclassif‌ication pre-

vents the formation of unions and avoids the application of

employment standards legislation. Using the putative Can-

adian Hockey League class proceeding (the CHL case) as an

example, this paper argues that a class action is a preferable

remedy for misclassif‌ied employees because it is a more dis-

creet option in terms of workplace politics, and it offers the

hope of systemic change.

The paper f‌irst reviews the 2016 Mayotte v Ontario case

to highlight challenges that independent contractors face in

establishing that their employer acted unreasonably. Second,

the paper provides background about the CHL case and

discusses the likely players’ status under the current law.

Third, it reviews the law on certif‌ication of employment-

related proceedings, and it s likely application to the CHL cas e.

It also looks at challenges that arise in staying a proceeding

involving multijurisdictional class actions, particularly in

Quebec with new article 577 of that jurisdiction’s new Code

of Civil Procedure. The paper concludes with a discussion on

how the CHL class action will shape hockey, the sport that

def‌ines Canada’s culture and identity.

127

IS CLASS ACTION A PREFERABLE

REMEDY FOR INDEPENDENT

CONTRACTORS? A CASE STUDY ON

THE PROPOSED CANADIAN HOCKEY

LEAGUE CLASS ACTION

Yaroslavna Nosikova*

A. INTRODUCTION

In 2014, Canadian Hockey League (CHL) players f‌iled three putative

class actions, in Ontario, Quebec, and Alberta, against the league and

its teams for misclassif‌ication of their employment status (known as the

proposed CHL class action).1 The CHL has long considered its players

as independent contractors or amateur student athletes, but not employ-

ees.2 The players now allege that they are true employees, and that their

contractual payments contravene provincial minimum wage legislation.

The issue of misclassif‌ication of employment status is not unique

to the proposed CHL class action. Over the past two years, a number

of similar actions have been f‌iled in Canada and the United States, in-

cluding claims against a major accounting f‌irm, an energy company, and

* The author graduated f rom law school at the University of Victor ia and is

currently a rticling at one of the major Bay Stre et f‌irms in Toronto. Yaroslavna

also completed her bac helor of science in chemistry at t he University of

Toronto, and received a master of applied s cience in biomedical enginee ring at

the Universit y of Toronto.

1 Kim Orr Bar risters PC, “Players Sue Can adian Major Junior Hockey Leag ues

Alleging Il legally Low Wages” Kim Orr Class Action Monit or (4 November

2014) (WL Can) [Kim Or r]; Charney La wyers, “CHL Class Action L awsuit”

Charney L awyers, online: www.charneylawyers.com/Charney/chlclassaction.

php [Ch arne y].

2 Robert Cribb, “Cla ss Action Lawsuit Filed agai nst Canadian Hockey Le ague

over Wages” Toronto Star (20 October 2014), online: www.thest ar.com/news/

world/2014/10/20/class_action_lawsuit_f‌iled_against_canadian_hockey_

league_over_wages.html.