While applications for certification of class proceedings are commonplace, trials to decide certified common issues on their merits are comparatively rare. The decision in one such common issues trial was recently released in Escobar v Ocean Pacific Hotels Ltd., 2024 BCSC 1575, in a class action brought on behalf of hourly employees of a Vancouver hotel who stopped receiving regular shifts after the outbreak of COVID-19. Success was split between class members and the defendant.
On one common issue, the Court found that all class members whose hours were reduced to zero indefinitely had been constructively dismissed, despite that most class members' employment contracts provided that their hours of work would fluctuate based on the business demands of the hotel. The Court found that, on the facts of this case, this term could not be interpreted to mean that class members' hours could be reduced to zero indefinitely, and that "[t]he unprecedented nature of the pandemic does not provide a rationale to interpret the contracts in a manner that places the financial burden of the pandemic on the employees and softens the financial impact experienced by the employer when that interpretation is not compelling generally".
On another common issue, however, the Court rejected the plaintiff's argument that the hotel breached any duty of good faith and honest performance of the employment contracts by misleading employees about their future employment. The hotel had distributed messages of unity and support without disclosing its evolving plans to move to a reduced model under which some employees would be terminated. The Court found these communications were not actively misleading. The hotel indicated the class members' prospects of employment were uncertain and, per C.M. Callow Inc. v Zollinger, 2020 SCC 45, the hotel had no positive duty of disclosure and was entitled to keep its business strategies to itself as long as it did not actively mislead.
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