Moutinho et al. v. Modern Building Cleaning Inc., (1998) 127 Man.R.(2d) 258 (QBM)

• Court: Court of Queen's Bench of Manitoba (Canada)
• Case Date: March 24, 1998
• Jurisdiction: Manitoba
• Citations: (1998), 127 Man.R.(2d) 258 (QBM)

Moutinho v. Modern Building (1998), 127 Man.R.(2d) 258 (QBM)

MLB headnote and full text

Temp. Cite: [1998] Man.R.(2d) TBEd. AP.003

Victor Moutinho and Maria Moutinho, on their own behalf and on behalf of all employees and former employees in Manitoba of Modern Building Cleaning Inc. who in the course of that employment have been denied rights under the Employment Standards Act (plaintiffs) v. Modern Building Cleaning Inc. (defendant)

(CI 97-01-05395)

Indexed As: Moutinho et al. v. Modern Building Cleaning Inc.

Manitoba Court of Queen's Bench

Winnipeg Centre

Lee, Master

March 24, 1998.

Summary:

The Moutinhos commenced a class action against the defendant cleaning company, claiming that the plaintiffs had been denied rights under the Employment Standards Act. The defendant applied to have the portions of the statement of claim referring to the class action struck out.

A Master of the Manitoba Court of Queen's Bench allowed the application.

Practice - Topic 209.3

Persons who can sue and be sued - Indi­viduals and corporations - Status or stand­ing - Class actions - Certification - Con­siderations (incl. when class action appro­priate) - The Moutinhos commenced a class action against the defendant cleaning company, claiming that the plaintiffs had been denied rights under the Employment Standards Act (e.g., overtime pay) - The defendant applied to have the portions of the statement of claim referring to the class action struck out - A Master of the Manitoba Court of Queen's Bench allowed the application - The purported class did not meet the requirements of a class for the purposes of a class action - The prin­cipal issues of fact and law were not es­sentially the same with respect to all members of the purported class - Further there would have to be individual assess­ments to determine the matter of restitu­tion.

Cases Noticed:

Ranjoy Sales et al. v. Deloitte, Haskins & Sells (1984), 27 Man.R.(2d) 311 (Q.B.), affd. [1985] 2 W.W.R. 534; 31 Man.R.(2d) 87 (C.A.), refd to. [para. 4].

Naken et al. v. General Motors of Canada Ltd. (1983), 46 N.R. 139; 32 C.P.C. 138 (S.C.C.), refd to. [para. 6].

Sutherland v. Canada (Attorney General) et al., [1997] B.C.T.C. Uned. G23 (S.C.), refd to. [para. 6].

Tiemstra v. Insurance Corp. of Brit­ish Columbia (1997), 95 B.C.A.C. 144; 154 W.A.C. 144 (C.A.), refd to. [para. 6].

Morgan v. Superintendent of the Winnipeg Remand Centre et al. (1983), 29 Man.R.(2d) 55 (C.A.), affing. (1983), 21 Man.R.(2d) 22 (Q.B.), refd to. [para. 6].

Abdool v. Anaheim Management Ltd. (1995), 78 O.A.C. 377; 31 C.P.C.(3d) 197 (Div. Ct.), refd to. [para. 6].

Pawar v. Canada, [1997] 2 F.C. 154; 123 F.T.R. 257 (T.D.), refd to. [para. 7].

Sandburg v. Prysiazniuk (1985), 66 B.C.L.R. 392 (S.C.), refd to. [para. 14].

Counsel:

Charles J. Phelan, Q.C., for the plaintiffs;

Eleanor R. Dawson, Q.C., and Michael A. Conner, for the defendant.

This application was heard before Lee, Master, of the Manitoba Court of Queen's Bench, who delivered the following decision on March 24, 1998.