A class action is a lawsuit brought by a representative plaintiff on behalf of a larger group of people who have a common claim. Before a class action lawsuit can proceed, the class must be certified. This process ensures that the plaintiff has enough similarities to proceed with litigation against the named defendant as part of one larger case, depending on the following requirements set out in the Class Proceedings Act:

1. the pleadings disclose a cause of action;
2. an identifiable class of 2 or more persons;
3. the claims raise common issues;
4. a class proceeding would be the preferable procedure for the fair and efficient resolution of the common issues;
5. the representative plaintiff fairly and adequately represent the issues of the class, has proposed a workable plan for the class proceeding and does not have a conflict with the other class members on the common issues.

In Escobar v. Ocean Pacific Ltd. 2021 BCSC 2414, the plaintiff claimed the hotel wrongfully terminated employees without cause or notice, and skirted full severance pay owed to workers for their years of service.

The Supreme Court, relying on well-established legal precedence in British Columbia, concluded that rights granted by the Employment Standards Act are not enforceable in civil proceedings.

Therefore, the Court rejected the certification for all items of damages for termination benefits, or claims for breach of the duty of good faith and honest performance arising from termination benefits, as well as unjust enrichment arising from the group termination pay which were not paid by the employer and the damages for mental distress.

On the other hand, the Court stated that certification was appropriate for the following issues:

• Did the hotel fundamentally change a term of the Class members’ contracts by cancelling their hours due to the impact of the COVID-19 pandemic?
• Did the defendant intentionally mislead Class members about their prospects for ongoing employment with it?
• If so, are Class members entitled to damages compensating them for lost earnings during the period when the defendant dishonestly misled them into believing they would return to active employment with it?
• Was the defendant's conduct high-handed, malicious, arbitrary, or reprehensible such that punitive damages are warranted?

Ultimately, the employees were permitted to proceed with the class action. The Court’s determination of the above common issues at trial will be pertinent for all employers and employees impacted by COVID-19.

Another example of class action is a claim brought against long term care facilities alleging negligence, staff shortages, and failure to follow proper safety protocols in response to COVID-19.

This confirms that there is an ongoing risk of class action for employers related to their responses to COVID-19.

Therefore, employers should continue to review and implement specific policies designed to prevent these actions.