Embed Size (px)
Citation preview
Court File No.: CV-16-562080 00CP
ONTARIO SUPERIOR COURT OF JUSTICE
B E T W E E N :
CARRIE EKLUND
Plaintiff
- and -
GOODLIFE FITNESS CENTRES INC.
Defendant
Proceeding under the Class Proceedings Act, 1992
MOTION RECORD OF THE PLAINTIFF
(CERTIFICATION AND SETTLEMENT APPROVAL) (Returnable June 20, 2018)
June 5, 2018 GOLDBLATT PARTNERS LLP 20 Dundas Street West, Suite 1039 Toronto ON M5G 2C2 Charles Sinclair LS#43178A Tel: 416-979-4234 E-mail: [email protected]
Christine Davies LS#57309F
Tel: 416-979-4055 Email: [email protected]
Joshua Mandryk LS#68823D Tel: 416-979-6970 E-mail: [email protected] Fax: 416-591-7333 Lawyers for the Plaintiff
- 2 -
TO: BORDEN LADNER GERVAIS LLP Bay Adelaide Centre, East Tower 22 Adelaide Street West, Suite 3400 Toronto, ON, M5H 4E3 David Di Paolo LS#40817G Tel: 416-367-6108 Email: [email protected]
David Elman LS#53983K Tel: 416-367-6031 Email: [email protected]
Nadia Effendi LS#49004T Tel: 416-367-6728 Email: [email protected]
Fax: 416-367-6749 Lawyers for the Defendant
TABLE OF CONTENTS
Tab Description
1. Notice of Motion, returnable June 20, 2018
A. Schedule “A”: Draft Order re: Certification and Settlement Approval
2. Affidavit of Carrie Eklund, sworn May 31, 2017
A. Exhibit “A”: Toronto Star article dated November 17, 2016
3. Affidavit of Christine Davies, sworn June 1, 2018
A. Exhibit “A”: Fresh as Amended Statement of Claim
B. Exhibit “B”: Collective Agreement between GoodLife Fitness Centres Inc. and Workers United Canada Council
C. Exhibit “C”: GoodLife Policy #0034 re: Personal Training Administration Time
D. Exhibit “D”: Minutes of Settlement [redacted]
E. Exhibit “E”: Press Release re: proposed settlement
F. Exhibit “F”: Articles in London Free Press and Toronto Star re: proposed settlement
G. Exhibit “G”: Statements in support/opposition of proposed settlement
H. Exhibit “H”: Retainer Agreement between Carrie Eklund and Goldblatt Partners LLP
I. Exhibit “I”: Fee and Disbursements incurred by Goldblatt Partners LLP
TAB 1
Court File No.: CV-16-562080 00CP
ONTARIO SUPERIOR COURT OF JUSTICE
B E T W E E N :
CARRIE EKLUND
Plaintiff
- and -
GOODLIFE FITNESS CENTRES INC.
Defendant
Proceeding under the Class Proceedings Act, 1992
NOTICE OF MOTION
(CERTIFICATION AND SETTLEMENT APPROVAL) (Returnable June 20, 2018)
The Plaintiff will make a motion to Justice Morgan, on June 20, 2018, at 10:00 AM or
as soon after that time as the motion can be heard, at the Ontario Superior Court of Justice,
Osgoode Hall, 130 Queen Street West, Toronto, Ontario.
PROPOSED METHOD OF HEARING: The motion is to be heard:
in writing under subrule 37.12.1(1) because it is on consent or unopposed or made without notice;
in writing as an opposed motion under subrule 37.12.1(4);
x orally.
THE MOTION IS FOR:
1. an Order in the form attached hereto as Schedule “A”, which provides for, amongst other
things:
a) certifying this action as a class proceeding pursuant to s. 5 of the Class Proceedings
Act, 1992 (“CPA”) on consent for settlement purposes;
1
- ii -
b) approving the settlement of March 1, 2018 (the “Settlement Agreement”) as fair,
reasonable and in the best interests of the class pursuant to section 29 of the CPA;
c) declaring that the settlement agreement is binding upon the representative plaintiff, all
class members who did not validly opt-out, and the defendant;
d) approving class counsel fees of $1,000,000 (all inclusive);
e) approving an honorarium for the representative plaintiff in the amount of $10,000; and
f) all other relief as this Honourable Court deems just.
THE GROUNDS FOR THE MOTION ARE:
1. This action was issued on issued on October 12, 2016, and was amended on January
26, 2017 to extend the class nationally. The action concerns unpaid hours and unpaid
overtime of non-managerial employees of the defendant, GoodLife Fitness Centres Inc.
(“GoodLife”), who worked at GoodLife’s clubs;
2. Following the commencement of the action, GoodLife made several significant
changes to its compensation practices. These included scheduling paid prospecting hours for
personal trainers and removing the clawback of their commission (effective January 2017);
removing the disentitlement of personal trainers to receiving a bonus where they claimed
overtime (effective January 2017); providing lieu time at the required time and a half instead
of straight time for club opening specialists (together with some retroactive compensation)
(retroactive to January 2017); and, implementing a new record-keeping system (commencing
late November 2016 and culminating in July 2017) for class members, as well as a new
record-keeping system specifically for club opening team members (effective March 30,
2017). Effective December 5, 2017, GoodLife entered into a collective agreement with United
Canada Council, a union that had been certified to represent personal trainers in Toronto,
Ajax and Peterborough. The collective agreement recognized the entitlement of personal
trainers to pay for certain categories of tasks which were previously unpaid
(administrative/scheduling and preparation/programming tasks). Pursuant to the agreement
reached with the union, personal trainers would receive an additional 2.5 hours per pay period
2
- iii -
to compensate for such work. GoodLife also introduced a new policy for non-unionized
personal trainers recognizing their entitlement to be paid for such work, effective January
2018. As a result of these various changes, it was apparent that GoodLife had addressed many
of the concerns of the class members going forward and that much of the claim was now
historical in nature;
3. Following all of these developments, the parties agreed to enter into settlement
negotiations with a view to resolving the action. The parties attended a two-day mediation
with the Hon. George Adams on February 27-28, 2018, and reached a settlement following
the mediation on March 1, 2018;
4. The proposed settlement provides for certification, for settlement purposes, of the
following class:
All current and former non-managerial employees of GoodLife employed at its clubs in the Provinces of Ontario, British Columbia, Alberta, Saskatchewan, Manitoba, New Brunswick, Newfoundland, Nova Scotia, and Prince Edward Island, for the period from October 12, 2014 to the date certification is granted (“Class Period”) in this action, save and except for those employed at its Fit4Less or franchise clubs, and save and except for all personal trainers employed by GoodLife in the Cities of Toronto, Ontario; Ajax, Ontario; and Peterborough, Ontario for the period commencing on December 5, 2017 and ongoing. To the extent any employees had both managerial and non-managerial roles during the Class Period, they will be in the class only in respect of their non-managerial roles.
5. For certification purposes, the settlement identifies the common issue as follows:
Whether any Class Member worked hours of work, including overtime hours, during the Class Period, for which they were not paid or otherwise compensated in accordance with the requirements of the applicable provincial employment standards legislation
6. The proposed settlement provides that GoodLife will, within 90 days of the approval
of the settlement, pay $7.5 million to the class members, comprised of the following:
a) $5.5 million to personal trainers, to be distributed pro rata based on the total number of
recorded personal training services hours for the period October 12, 2014 to December
31, 2017;
3
- iv -
b) $150,000 to club opening specialists, to be distributed pro rata basis based on the total
number of full weeks worked for the period October 12, 2014 to March 30, 2017;
c) $800,000 to fitness advisors, to be distributed pro rata based on the total number of
recorded sales hours worked for the period October 12, 2014 to February 28, 2018;
and
d) $1,050,000 to other class members on a pro rata basis based on the total number of
recorded hours worked for the period October 12, 2014 to February 28, 2018.
7. Under the terms of the proposed settlement, GoodLife will make the payments to class
members directly;
8. The proposed settlement provides compensation for class members without the need
for proof of individual damages, which provides a significant benefit to class members. It was
anticipated that proof of individual damages would be a complex exercise due to differences
in minimum standards along with an absence of records for the time worked;
9. The proposed settlement reflects a compromise that reflects the risks of the litigation
and that the conclusion of the litigation may have taken years;
10. The proposed settlement is fair, reasonable and in the best interest of the class;
11. The proposed settlement is supported by the representative plaintiff and recommended
by class counsel;
12. This action meets the criteria for certification set out in section 5(1) of the Class
Proceedings Act, 1992, namely:
a) the claim discloses causes of action;
b) there is an identifiable class of more than two persons;
c) the claim raises a common issue or issues;
d) a class proceeding is the preferable procedure;
4
- v -
e) the representative plaintiff has fairly and adequately represented the interests of the
Class and does not have an interest in conflict with the interests of other class
members;
13. The terms of the retainer between the proposed representative plaintiff and class
counsel provided for the calculation of fees on either a multiplier basis or a contingency basis.
Pursuant to the retainer, in the event of a settlement before certification, class counsel fees
were to be calculated at no less than a 2x multiplier or a 25% contingency fee;
14. To date, class counsel fees and disbursements total $544,725.39, and class counsel
estimates a further $75,000 in fees for additional work that may be necessary through the
settlement implementation phase. The representative plaintiff supports class counsel’s request
for approval of fees and disbursements. Class counsel fees are fair and reasonable;
15. The proposed representative plaintiff played a vital role in advancing the claims of the
class. She devoted a considerable amount of time to the success of this action, including
communicating with other class members (dozens of whom reached out to her directly),
providing statements to the media, meeting with and instructing counsel, reviewing
documents, swearing an affidavit, and attending multiple long days of mediation. Her
involvement as the face of the class action came at a personal cost, as she did not receive a job
opportunity after a potential employer asked her about the lawsuit against her former
employer, GoodLife, during a job interview. The honorarium for the representative plaintiff is
fair and reasonable. The payment to her is separate from the payment to other class members
and will not reduce the amount received by other class members. No class member has
objected to the honorarium;
16. The Class Proceedings Act, 1992, S.O. 1992, c.6; and
17. Such further and other grounds as counsel may advise and this Honourable Court may
permit.
THE FOLLOWING DOCUMENTARY EVIDENCE will be used at the hearing of
the motion:
1. The Affidavit of Carrie Eklund, sworn May 31, 2018;
5
- vi -
2. The Affidavit of Christine Davies, sworn June 1, 2018; and
3. Such further and other material as counsel may advise and this Honourable
Court may permit.
June 5, 2018 GOLDBLATT PARTNERS LLP 20 Dundas Street West, Suite 1039 Toronto ON M5G 2C2 Charles Sinclair LS#43178A Tel: 416-979-4234 E-mail: [email protected]
Christine Davies LS#57309F Tel: 416-979-4055 Email: [email protected]
Joshua Mandryk LS#68823D Tel: 416-979-6970 E-mail: [email protected] Fax: 416-591-7333 Lawyers for the Plaintiff
TO: BORDEN LADNER GERVAIS LLP
Bay Adelaide Centre, East Tower 22 Adelaide Street West, Suite 3400 Toronto, ON, M5H 4E3 David Di Paolo LS#40817G Tel: 416-367-6108 Email: [email protected] David Elman LS#53983K Tel: 416-367-6031 Email: [email protected] Nadia Effendi LS#49004T Tel: 416-367-6728 Email: [email protected] Fax: 416-367-6749 Lawyers for the Defendant
6
Eklund Plaintiff and
GoodLife Fitness Centres Inc. Defendant Court File No.: CV-16-562080 00CP
ONTARIO SUPERIOR COURT OF JUSTICE
Proceeding commenced at Toronto
NOTICE OF MOTION (CERTIFICATION AND SETTLEMENT APPROVAL)
(Returnable June 20, 2018)
Goldblatt Partners LLP 20 Dundas Street West, Suite 1100 Toronto ON M5G 2G8
Charles Sinclair LS#43178A Tel: 416-979-4234 Christine Davies LS#57309F Tel: 416-979-4055 Joshua Mandryk LS#68823D Tel: 416-979-6970 Fax: 416-591-7333 Lawyers for the Plaintiff
7
Court File No.: CV-16-562080 00CP
ONTARIO SUPERIOR COURT OF JUSTICE
THE HONOURABLE
JUSTICE MORGAN
))))
WEDNESDAY, THE 20TH
DAY OF JUNE, 2018
B E T W E E N :
CARRIE EKLUND Plaintiff
- and -
GOODLIFE FITNESS CENTRES INC. Defendant
PROCEEDING UNDER THE CLASS PROCEEDING ACT, 1992
ORDER (CERTIFICATION AND SETTLEMENT APPROVAL)
THIS MOTION, made by the plaintiff for an order certifying the class for settlement
purposes, approving the settlement, and approving class counsel fees together with an
honorarium for the representative plaintiff, was heard this day at the Court House in Toronto,
Ontario.
ON READING the materials filed and on hearing the submissions of counsel for the
plaintiff (“class counsel”) and counsel for the defendant
1. THIS COURT ORDERS that the action is certified on consent on behalf of the following
class of persons:
All current and former non-managerial employees of GoodLife employed at its clubs in the Provinces of Ontario, British Columbia, Alberta, Saskatchewan, Manitoba, New Brunswick, Newfoundland, Nova Scotia, and Prince Edward Island, for the period from October 12, 2014 to the date certification is granted (“Class Period”) in this action, save and except for those employed at its Fit4Less or franchise clubs, and save and except for
SCHEDULE "A"8
- 2 -
all personal trainers employed by GoodLife in the Cities of Toronto, Ontario; Ajax, Ontario; and Peterborough, Ontario for the period commencing on December 5, 2017 and ongoing. To the extent any employees had both managerial and non-managerial roles during the Class Period, they will be in the class only in respect of their non-managerial roles.
2. THIS COURT ORDERS that Carrie Eklund is appointed as the representative plaintiff of
the class, and Goldblatt Partners LLP is appointed as solicitors for the class;
3. THIS COURT ORDERS that the common issue in the action is:
Whether any Class Member worked hours of work, including overtime hours, during the Class Period, for which they were not paid or otherwise compensated in accordance with the requirements of the applicable provincial employment standards legislation.
4. THIS COURT ORDERS that the terms of the settlement reached between the parties as
set out in the redacted Settlement Agreement dated March 1, 2018 attached as Schedule “A” to
this Order are fair and reasonable, are hereby approved, and are binding on the class members
who did not validly opt-out as well as the defendant;
5. THIS COURT ORDERS class counsel fees in the all-inclusive amount of $1,000,000 are
fair and reasonable and are approved;
6. THIS COURT ORDERS that the honorarium to Carrie Eklund in the amount of $10,000
is fair and reasonable and is approved;
7. THIS COURT ORDERS that there shall be no costs of this motion.
9
Schedule "A"10
11
12
13
14
15
16
17
18
19
20
TAB 2
21
22
23
24
25
26
27
28
29
30
31
32
TAB 3
33
34
35
36
37
38
39
40
41
42
43
44
45
46
47
48
49
50
51
52
53
54
55
56
57
58
59
60
61
62
63
64
65
66
67
68
69
70
71
72
73
74
75
76
77
78
79
80
81
82
83
84
85
86
87
88
89
90
91
92
93
94
95
96
97
98
99
100
101
102
103
104
105
106
107
108
109
110
111
112
113
114
115
116
117
118
119
120
121
122
123
124
125
126
127
128
129
130
131
132
133
134
135
136
137
138
139
140
141
142
143
144
145
146
147
148
149
150
151
152
153
154
155
156
157
158
159
160
161
162
163
164
165
166
167
168
169
170
171
172
173
174
175
176
177
178
179
180
181
182
183
184
185
186
187
188
189
190
191
192
193
194
195
196
197
198
199
200
201
202
203
204
205
206
207
208
209
210
211
212
213
214
215
216
217
218
219
220
221
222
223
224
225
226
227
228
229
230
231
232
233
234
Eklund Plaintiff and
GoodLife Fitness Centres In. Defendant Court File No.: CV-16-562080 00CP
ONTARIO SUPERIOR COURT OF JUSTICE
Proceeding commenced at Toronto
MOTION RECORD OF THE PLAINTIFF (CERTIFICATION AND SETTLEMENT
APPROVAL) (Returnable June 20, 2018)
Goldblatt Partners LLP 20 Dundas Street West, Suite 1039 Toronto ON M5G 2C2
Charles Sinclair LS#43178A Tel: 416-979-4234 Christine Davies LS#57309F Tel: 416-979-4055 Joshua Mandryk LS#68823D Tel: 416-979-6970 Fax: 416-591-7333 Lawyers for the Plaintiff
