Is Class Action a Preferable Remedy for Independent Contractors? A Case Study on the Proposed Canadian Hockey League Class Action

Abstract: A number of putative actions have been filed recently that allege misclassification of employees as independent contractors. Left unchanged, such misclassification prevents the formation of unions and avoids the application of employment standards legislation. Using the putative Canadian Hockey League class proceeding (the CHL case) as an example, this paper argues that a class action is a preferable remedy for misclassified employees because it is a more discreet option in terms of workplace politics, and it offers the hope of systemic change. The paper first reviews the 2016 Mayotte v Ontario case to highlight challenges that independent contractors face in establishing that their employer acted unreasonably. Second, the paper provides background about the CHL case and discusses the likely players’ status under the current law. Third, it reviews the law on certification of employment-related proceedings, and its likely application to the CHL case. It also looks at challenges that arise in staying a proceeding involving multijurisdictional class actions, particularly in Quebec with new article 577 of that jurisdiction’s new Code of Civil Procedure. The paper concludes with a discussion on how the CHL class action will shape hockey, the sport that defines Canada’s culture and identity.