COURT APPROVES SETTLEMENT OF CLASS ACTION
We are pleased to announce that the proposed settlement, concluding the final subsidiary claims in the employment action was approved by the BC Supreme Court on Thursday June 19, 2008. Please note that the Pension Class Action has not been settled and continues to be advanced by us on behalf of the Pension Classes.
The Court commented that the Plaintiff’s had “challenges” if they had gone forward to trial with this, and in the circumstances the settlement was “fair and reasonable”. The thrust of the Court’s comments was that this was a good outcome/smart settlement for the Plaintiffs. The Court noted that the Plaintiffs had counsel with a great deal of experience in this area negotiating this settlement and commented that the settlement was achieved after the Plaintiffs had explored the issues through extensive document production and Examination for Discovery.
On legal fees, the Court noted that a great deal of legal effort was expended and that $52,200 was a reasonable fee. The Court noted that disbursements incurred were almost $36,000, out of which 2/3 was attributed to this part of the case. She therefore approved disbursements in the amount of $23,896.26.
We are working closely with Representative Plaintiff Peter Gregg and with counsel for Freightliner to establish a final list of amounts to be paid to “Exempt employees” who are class members and who worked during the year 2002 and who did not receive a bonus. We are also working to ensure we have current mailing addresses for all those persons. Freightliner will be mailing the cheques, after withholding Income tax as required by law.
ANNOUNCEMENT OF PROPOSED SETTLEMENT OF EMPLOYMENT LAW CLASS ACTION
TevlinGleadle is pleased to announce that, working closely with and assisted by representative plaintiff Peter Gregg, and in co-operation with Employer’s Counsel, we have now reached a proposed settlement of the Bonus claim for Freightliner “Exempt Staff” and the separate claim for additional notice for certain senior long service managerial employees.
After our unsuccessful attempt to have the Court not credit Freightliner with notice for the time period before the closure of the plant in September, 2002, and upon further inquiry into the remaining claims, the bonus claim and the claim for additional notice periods were determined by Peter Gregg and by us as Class counsel to be the only remaining meritorious claims.
Therefore, the proposed settlement reached with Freightliner, subject to the approval of the Court, will resolve all remaining issues in the Employment Action.
The seperate Pension Action is continuing and unaffected by this proposed settlement.
The final settlement on the Employment Claim is approximately $200,000. That amount will be apportioned to certain “Exempt Staff” who worked at Kelowna during the year 2002 and who were not transferred to Portland and based on the evidence which has been collected by class members and provided by the employer as a result of diligent searches, in many locations, over the past several years. The amount is equal to 5% of wages earned in 2002, in lieu of bonus, and is coincident with the cessation of the payment of Overtime and the granting of certain salary increases.
The settlement amounts will be subject to the normal withholding taxes required by the Government of Canada, after deduction of any legal fees and disbursements as may be approved by the Court.
The settlement and all details and provisions must be approved by the BC Supreme Court and we plan to make the application Wednesday, May28, 2008. If the settlement is approved, Class counsel will work and co-operate with Freightliner and its counsel, to get the appropriate cheques to the appropriate class members as soon as possible.
Persons interested in obtaining further information about the proposed settlement may contact TevlinGleadle at this link.
Case Management Conference March 2007
A Case Management Conference is scheduled for March 8, 2007 and at that time the parties will discuss further necessary steps regarding definition of subclasses for the wage rollback and overtime claims, as well as other necessary steps to move forward determination of the common issues.
On September 12, 2006 the Case Management Judge gave directions as to the further conduct of this matter. The main common issues which remain to be determined for class members are:
 issues relating to the wage rollback
issues relating to payment of overtime
issues relating to non-payment of bonuses
There are additional individual issues left for class members, in addtion to the aforementined common issues, including sufficiency of notice provided and adequacy of the amount paid in lieu of notice, now that it is determined that he working notice is to be taken into account, to the credit of the employer.
The court's directions dated September 12, 2006 are found here.
Appeal Refused
Class Counsel have commenced an Appeal to the British Columbia Court of Appeal. Freightliner Ltd. has cross appealed for an order that the matter be decertified.
Notice of Appeal - December 8, 2004
Class counsel have filed a Factum setting out submissions on the appeal.
Appellant's Factum - March 18, 2005
The Appeal was heard on June 14, 2005.
The Court of Appeal refused the appeal, in effect deciding that the original decision of the trial judge was correct.
Reasons for Judgement, Court of Appeal - June 14, 2005
Summary Trial - Whether any Working Notice Provided
The hearing took place at the Vancouver courthouse on March 24th and 25th, 2004. The court was asked to determine whether Freightliner's employees received any effective working notice of termination of their employment.
Notice of Motion filed January 20, 2004
Affidavit of Peter Gregg sworn on July 24, 2002
Affidavit of Peter Gregg sworn on January 20, 2004
The court determined that Freightliner had given effective advance notice of termination of employment when it notified employees of the plant closure.
Reasons for Judgement - November 30, 2004
Historical Chronology of Developments
On April 16, 2002, TevlinGleadle commenced an action under the British Columbia Class Proceedings Act on behalf of Peter Gregg, a present Freightliner employee, as a representative member of the class of non-unionized employees of Freightliner's Western Star Truck plant in Kelowna, British Columbia.
Interested parties can review:
the Writ of Summons and Statement of Claim, filed in the Vancouver Registry of the Supreme Court of British Columbia on April 16, 2002
extract from the Kelowna Daily Courier, reporting on commencement of the lawsuit in April, 2002
Freightliner's Statement of Defence
The Canada Trust Company and CIBC Mellon's joint Statement of Defence
On July 10, 2002 TevlinGleadle received notice that the Supreme Court of British Columbia had appointed Madam Justice Bennett as the judge who will be responsible for the trial of the action, as well as pre-trial management matters, including the certification hearing and all other motions in the case, unless otherwise ordered.
click here to view the Notice of Assignment of trial judge
On July 24th, 2002 TevlinGleadle filed documents with the Supreme Court of British Columbia in support of the plaintiff's application for certification. These documents can be viewed by clicking the following links:
Peter Gregg's Notice of Motion, dated July 24, 2002, a document setting out the orders that will be sought at the certification hearing
Affidavit of Peter Gregg, dated July 24, 2002 (without exhibits)
Affidavit of Dagmar Dlab, dated July 24, 2002 (with one exhibit only, a spreadsheet showing preliminary information about historical financial transactions involving the pension trust)
On September 13, 2002, TevlinGleadle filed with the court a written submission with a summary of the case, and reasons why, in the plaintiff's view, it would be appropriate for this matter to continue as a class proceeding. Our submission can be found at:
Plaintiff's Submission on Certification Motion
Certification Hearing, October 15 - 17, 2002:
On Tuesday, October 15, 2002 TevlinGleadle (Murray Tevlin, Dan Gleadle & Dagmar Dlab) appeared again in the British Columbia Supreme Court before Madam Justice Bennett, and presented submissions as to why the action commenced in this proceeding should be certified as a class action:
Copy of Plaintiff's Memorandum of Argument in favour of Certification
Submissions were made by counsel for Freightliner and the defendant Trust Companies, in opposition to the application for certification.
When submissions were concluded, Madam Justice Bennett advised that she would take some time to consider her decision.
Proceeding certified as a Class Action - Pension and Employment Law claims Severed
On Thursday, Febuary 13, 2003 the Honourable Judge Elizabeth Bennett pronounced Reasons for Judgement certifying the Western Star proceeding as a class action under the Class Proceedings Act.
As well, the judge ordered that the pension claims and the employment claims be "severed". This has required class counsel to commence a separate action for the employment claims, and as the two cases progress there will be separate notices to class members, separate decisions required by class members regarding opting into or out of each claim, and separate process as the two matters move forward to a resolution.
Reasons for Judgement Certifying proceeding as Class Action
Certification Order Entered
On June 30, 2003 Judge Bennett formally ordered that the employment law claim of Peter Gregg be certified as a class proceeding, with two classes. These two classes (one of BC residents, and one of non-BC residents) are more particularly described in the formal order which can be viewed by clicking the link below.
Certification Order, Employment Class Action
Opt In or Opt Out?
The Employment Class action includes two subclasses. One class is for individuals who are resident of British Columbia, the other is for persons who are residents of any other jurisdiction. The Certification Order mandates certain steps to notify each person in both of the two classes, and then gives a period of time (until September 15, 2003) for individuals to decide how they wish to proceed, that is, do they wish to participate in the class action. The decision is different for BC residents and non-BC residents.
Qualifying BC Residents are already in the class, and need do nothing if they want to remain in the class action. If they wish to remove themselves from the class action, they need to fill in and deliver an "Opt Out" notice.
Otherwise qualifying Non-BC Residents are NOT in the class unless they take the active step of filling in and delivering an "Opt Out" notice.
In both cases, copies of the properly completed forms are to be delivered by mail, email attachment or fax to TevlinGleadle's offices.
You will need to have Adobe acrobat reader installed on your computer to read the Opt In forms. The free reader software can be installed by following the links.
New Pleading filed in Employment Law Class Action
Because the proceeding was intitally commenced as a joint action for pension and employment law claims, after the severance, it was necessary to start a new action for the employment law claims. A new action was commenced on April 4, 2003.
Writ of Summons and Statement of Claim, revised to exclude Pension Claims
Examination for Discovery of Peter Gregg
Counsel for Freightliner have scheduled an examination for discovery of Peter Gregg, the representative plaintiff, at the offices of TevlinGleadle on February 19th, 2004.
Summary Trial Relating to Whether any Working Notice Provided
The hearing took place at the Vancouver courthouse on March 24th and 25th, 2004. The court was asked to determine whether Freightliner's employees received any effective working notice of termination of their employment.
Notice of Motion filed January 20, 2004
Affidavit of Peter Gregg sworn on July 24, 2002
Affidavit of Peter Gregg sworn on January 20, 2004
The court determined that Freightliner had given effective advance notice of termination of employment when it notified employees of the plant closure.
Reasons for Judgement - November 30, 2004
Appeal of Summary Trial Decision
Class Counsel have commenced an Appeal to the British Columbia Court of Appeal. Freightliner Ltd. has cross appealed for an order that the matter be decertified.
Notice of Appeal - December 8, 2004
The Appeal is scheduled to be heard on June 14, 2005.
Questions may be directed to info@tevlingleadle.com.
Frequently Asked Questions - Employment Class Action
Am I a member of the Western Star "Employment Law Claims" Class Action?
What is the Class Action all about - what claims are being made?
My employment with Freightliner has been terminated, I have received an offer of a severance package- should I accept it ... what happens if I do?
What if Freightliner insists that I sign a release before providing me with my severance package?
What is the effect of my signing a Release?
Does it cost me anything to take part in the class action?
If I accept a transfer to Freightliner's operations in Portland, can I take part in the class action?
If I move to another province or out of the country, can I still take part in the class action?
What information and documents should I send to TevlinGleadle?
What if I want to opt out?
How long will the Class Action take to be resolved?
Am I a member of the class action?
In the Certification Order the class is defined as follows:
" All persons employed by the Defendant Freightliner Ltd. in British Columbia under an oral or written contract of employment of indefinite duration who received notice of termination of their employment at any time on or after December 3, 2001 until September 30, 2002. This class does not include employees:
a) who executed a full and final release in favour of the Defendant;
b) who were dismissed for just cause;
c) who were unionized employees in a bargaining until; and
d) who resigned prior to September 30, 2002. "
BC Residents: If you are a resident of British Columbia, you will automatically be a member of the class by falling within the definition outlined above. You do not have to do anything to be part of the class. If you do not want to be part of the class, you will have the opportunity to "opt out" at a later date, after certification of the claim as a class action.
Non-BC Residents: If you fall into the above definition, but are not a resident of British Columbia, you will have had the opportunity to "opt in" to one or both of the classes, in a manner that will be specified later in the proceedings.
What is the Class Action all about - what claims are being made?
In the class action, the plaintiff seeks to recover judgement for all of the claims described in the Statement of Claim. Some of the claims made are:
 a claim for a declaration that the notice that Freightliner gave to its non-unionized employees in December, 2001 was not effective working notice of termination of employment, and ought not to be taken into account to diminish its severance obligation to employees on cessation of worka claim for a declaration that Freightliner breached its employment contract with its non-unionized employees when it unilaterally stopped paying overtime
a claim for a declaration that Freightliner breached its employment contract with its non-unionized employees when it unilaterally instituted a 5% salary rollback
a claim for a declaration that Freightliner breached its employment contract with its non-unionized employees when it unilaterally stopped paying bonuses
a claim that Freightliner has not paid or offered adequate severance because the amounts paid or offered do not reflect the full value of all salary and benefits the workers would have received during an appropriate notice period (for example, failure to pay any severance amount to reflect lost pension contributions during the notice period)
My employment with Freightliner has been terminated, or is being terminated soon, and I have received a settlement offer (a severance package) - should I accept it, what happens if I do?
This is a decision that you must make yourself. Only you can decide what is right for you, in your particular circumstances.
You should, however, be aware that if you do accept the severance package, you might not be able to participate in the class action. This depends on whether, by accepting the package offered by Freightliner, you will be seen as having settled all of your possible claims. If you sign a Release, depending on the language of the document, you may release all of your claims against Freightliner. Even if you sign a release, depending on the circumstances, you might still be able to participate in the Class Action.
Your should consider whether the severance offer made to you:
is based on an appropriate notice period, given the length of your service, your age, the availability to suitable alternative employment, and other relevant circumstances
includes compensation for for unpaid overtime, bonuses, and the 5% salary rollback amounts
is based on all money and benefits you would have received during the notice period
requires you to sign a Release that would preclude you from participaring in any award to the pension class
At the very least, we recommend that you do not sign any Release or any document which might amount to an agreement that your claims in the Class Action are barred, without obtaining legal advice.
What if Freightliner insists that I sign a release before providing me with my severance package?
If you refuse to sign a release, it has now been confimed that Freightliner will pay you all severance amounts they have said they will pay in notices of termination, regardless of whether you refuse to sign a Release.
By law, the company is not allowed to withhold the minimum amounts set out in the Employment Standards Act. These amounts vary with your length of service with the company, and can range anywhere from one week to eight weeks wages.
What is the effect of my signing a Release?
If you sign a Release you will be precluded from advancing the claims that are specified in the release against Freightliner. Thus, the effect of the Release depends on the specific language.
Does it cost me anything to take part in the class action?
No, not at this point. If we are successful in the action, with the court's approval, a portion of the award that we obtain for each of the members will go towards our legal fees and disbursements. If we are unsuccessful in the action, there will be no costs.
If I accept a transfer to Freightliner's operations in Portland, can I take part in the class action?
It all depends under what circumstances you accept the transfer. If you sign a release, you may be precluded from taking part in some or all of the class action. If you do not sign a release, it is likely that you will be able to take part in the class action. If you are working in a position that is comparable to the one you enjoyed with Freightliner before you moved, it is unlikely that you will recover any compensation for severance of working notice through the class action. You could possibly still recover monies for your pension loss, overtime payments, bonus claim and 5% salary rollback, depending on your individual circumstances.
If I move to another province or out of the country, can I still take part in the class action?
Yes, you can still take part in the class action if you move away from British Columbia.
What information and documents should I send to TevlinGleadle?
We will provide a form of questionnaire to be completed by the class members in due course. This questionnaire will describe the documents we will need. In the meantime you should organize and preserve documents relevant to your work history and your pension.
What if I want to "Opt Out" of the Class Action?
You will have an opportunity to opt out of the class action once the court has certified the proceedings and approved the classes. After certification, we will send all class members a form to be completed by anyone wishing to opt out.
How long will it take for the Class Action to be resolved?
The answer to this question depends on circumstances which cannot be determined with certainty at this stage. Depending on the nature and extent of discussions between TevlinGleadle, class counsel, and counsel for the defendants, early resolution of some or all of the issues might be achieved, even in the next few months. Early steps are being taken in the action, to exchange formal positions (Statement of Claim, Statements of Defence), and to seek an order certifying the proceeding as a Class Action. The certification application is required by the Class Proceedings Act to occur within 90 days of the time when the defendants are supposed to have filed their Statements of Defence.
Worst Case Scenario: If all issues are fully disputed, and no agreements can be concluded with the defendants, and if all appeals are taken, final resolution of all claims might not occur for up to several years. However, we are committing all our resources now, seeking a fair resolution to all issues at the earliest possible date. |
