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 C ASE STUDY
ON THE PROPOSED CANADIAN
HOCKEY LEAGUE CLASS ACTION
Yaroslavna Nosikova
Abstract: A number of putative actions have been fi led
recently that allege mi sclassification of employees as indepe nd-
ent contractors. Left unchanged, such misclassification pre-
vents the formation of unions a nd avoids the application of
employment standard s legislation. Using the putative Can-
adian Hockey Leag ue class proceeding (the CHL case) as an
example, this pap er argues that a clas s action is a preferable
remedy for misclass ified employees because it is a more dis-
creet option in terms of workplace politic s, and it offers the
hope of systemic change.
The paper first reviews the 2016 Mayotte v Ontario case
to highlight chal lenges that independent contractors face in
establishing t hat their employer acted unreason ably. Second,
the paper provides backg round about the CHL case and
discusse s the likely players’ status under the current law.
Third, it reviews the law on cer tification of employment-
related proceedings, and it s likely application to the CHL cas e.
It also looks at challenges that arise in stay ing a proceeding
involving multijurisd ictional class actions, p articularly in
Quebec with new art icle 577 of that jurisdiction’s new Code
of Civil Procedure. The paper concludes with a discu ssion on
how the CHL class act ion will shape hockey, the sport that
defines Canad a’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, Canadia n Hockey League (CHL) players filed three putative
class actions, i n Ontario, Quebec, and Albert a, against the league and
its teams for mis classification of their employment status (known as the
proposed CHL clas s action).1 The CHL has long considered its players
as independent contractors or amateur st udent athletes, but not employ-
ees.2 The players now allege that they a re true employees, and that their
contractual pay ments contravene provincial minimum wage legislation.
The issue of miscla ssification of employment status is not unique
to the proposed CHL cla ss action. Over the past two year s, a number
of similar action s have been filed in Canada a nd the United States, in-
cluding claim s 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.
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