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Attorney Louis Sokolov on Canadian Wage and Hour Class Actions

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Toronto, ONLouis Sokolov is a partner in Sack Goldblatt Mitchell LLP (SGM) of Toronto, one of Canada's leading labor law, civil litigation, and criminal law firms. A graduate of the University of Toronto and the Osgoode Hall Law School of York University, he is currently involved in major class actions against the Canadian Imperial Bank of Commerce (CIBC), the Bank of Nova Scotia (Scotiabank), and the Canadian National Railway (CN).

LAS: What's the current focus of your practice? What's driving that?

Louis Sokolv (LS): Well, I have a varied civil litigation practice, but recently the single largest part has been with respect to class action cases. What has led to that has been a number of things. I've done employment law work for ten years on behalf of individuals, and I practice at SGM, one of Canada's oldest labor law firms. I joined SGM in 199 when they were building a civil litigation practice in order to extend their activity into labor law.

SGM has a long history of furthering labor rights in unionized workplaces; what employee class actions do is make it possible to extend that kind of collective action into non-union workplaces. That's a very powerful and important tool which we're looking to further in this country.

Wage and hour class actions have a longer history in the United States, maybe the last ten years or so; they're a more recent phenomenon in Canada. What happened was that after being approached by a number of people in non-union environments where allegations of widespread breaches of the Canada Labour Act were taking place, we concluded that the time was ripe to introduce wage and hour class actions Canada.

At our end, with our partner forms, we have three major class actions now, CIBC, Scotiabank, and CN. We think these cases are very significant, in that they're where we can bring relief to occupations and people who otherwise had no real options to obtain compensation.

LAS: Do these cases all involve job reclassification or are some a matter of simply not paying people what they're owed? i>

LS: The bank cases are off the clock cases in the parlance of the American legal system. The CN case is a misclassification case. In the off the clock cases, the dispute is that people were working overtime hours and they didn't get paid. There's no issue that the class members are non-management and therefore entitled to overtime pay under the Canadian Labour Act. The question is whether they were working time for which they were not paid.

CN, by contrast, is a case where there is a class of first-line supervisors whom CN deemed were not entitled to overtime. We say that they did not meet the functional definition of managers under the Canadian Labour Code, and were therefore entitled to overtime. The class in this case includes both past and present first-line supervisors.

In the CIBC case, the class is past and present tellers and other frontline customer service workers such as personal bankers. In Scotiabank, the class is somewhat smaller; it's being brought on behalf of personal bankers and similar classifications. CIBC is in excess of 10,000 persons, Scotiabank is 5000, and CN is approximately 1000, so they're all sizable class actions.

LAS: What's the main challenge in building a class action of this scale?

LS: There are a number. The first is that we're dealing with a class of persons who, by virtue of their dependence on their employers, are intimidated. That in itself presents real challenges. The second is that the stakes are large and the defendants are very well resourced.

What we do is that we pool our resources with a national team of law firms in order to match the defendants' resources and their well funded counsel. We're fortunate to have a very large and committed team across the country who believe in these cases and are ready and able to bring them through to the end. Among the people we have are some of the foremost labor law firms in this country, and as well we have some very well regarded specialists in class action. So we think we've put together a formidable legal team, which is necessary to bring these cases through to a favorable conclusion.

LAS: Have any of your class action representative plaintiffs encountered retaliation from their employers?

LS: Well, in the bank cases there has been no retaliation, and I would say that defendants who are well advised do not take retaliation. With respect to the CN case, there are some issues we're dealing with that will be announced publicly in a little while.

What I can say is that if any plaintiffs or class members are subjected to retaliation or reprisal, we will take whatever steps are necessary to protect them and to ensure that others are not intimidated. I can also say that in the US, when this has happened, the courts have routinely awarded substantial punitive damages.

A well advised employer will not take reprisals against employees who join a class action. If one is foolish enough to do so, we'll take quick and forceful steps to ensure that it doesn't continue.

LAS: You've established a web site for potential class members. How does that work?

LS: In each of these cases, class members who want information on developments in the case or who want to share information with us are invited to register at http://www.unpaidovertime.ca. That gives us a basis of contact with these persons. It's a very effective means of receiving information and communicating with class members; people are comfortable with communicating on line, and it's an efficient way to obtain and share information. I can't imagine what class action work was like before there was widespread availability of Internet access.

LAS: How long do you think these class actions will take to reach resolution?

LS: CIBC is scheduled to be heard for class certification in December 2008. We expect a ruling some months after that; of course, much depends on the certification hearing as to how the case progresses, since there haven't been any large-scale wage and hour cases in Canada before this.

We don't expect a quick resolution, so we'll be prepared to take these cases to trial. We didn't launch these cases expecting quick resolution.

You're involved with the Association in Defence of the Wrongly Convicted (AIDWYC). What does that involve for you?

LS: I'm a member of the Board of Directors and the Executive Committee. AIDWYC is an organization that aims to identify and correct wrongful convictions and to help change the underlying circumstances that lead to them. It originally grew out of the defense committee for Guy Paul Morin, and since then has been involved in wrongful conviction cases such as David Milgaard, Willliam Johnson, and Steven Truscott. AIWDYC has also played a large role in a number of public inquiries that has led to changes in the legal system that we hope will help prevent wrongful convictions in the future.

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