Certification Order



2013 06G 0131 CCP

IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR
GENERAL DIVISION

BETWEEN:

DEBORAH THORNE

FIRST PLAINTIFF

AND:

ALAN LUYT

SECOND PLAINTIFF

AND:

COLLEGE OF THE NORTH ATLANTIC

DEFENDANT

Brought under the Class Actions Act
Before the Honourable Justices Garrett Handrigan,
Robert Stack, Gillian Butler, Katherine O’Brien and
Peter O’Flaherty
Case Management Judges

CERTIFICATION ORDER

THIS MATTER having come before the Court at Grand Bank, Newfoundland and Labrador, on May 27, 2014;

AND UPON HEARING the Application of the First Plaintiff for an order certifying this proceeding as a Class Action;

AND UPON HEARING James D. Hughes, K.C. and Philip C.W. Whalen of counsel for the Plaintiffs;

AND UPON HEARING J. David Eaton, K.C., of counsel for the Defendant;

AND UPON READING the materials filed;

AND UPON a decision being filed on August 19, 2014;

IT IS HEREBY ORDERED that pursuant to Sections 5 and 9 of the Class Actions Act, SNL 2001 C-18.1 (the “Act”), the Application for Certification is granted as follows:

  1. THAT this proceeding be certified as a Class Proceeding and the file number be amended from 2013 06G 0131CP to 2013 06G 0131CCP pursuant to Rule 7A.02.
  1. THAT the Class be defined as follows:

Instructors and instructional support staff who were employed by the College of the North Atlantic in Qatar between September 1, 2008 and November 22, 2011.

  1. THAT the Class be divided into a Resident subclass and a Non-resident subclass. The Resident subclass consists of all Class members who filed an income tax return for the year 2014 as resident of Newfoundland and Labrador. The Non-resident subclass consists of Class members who did not file an income tax return for the year 2014 as a resident of Newfoundland and Labrador.
  1. THAT Deborah Thorne is appointed as the Representative Plaintiff for the Resident subclass.
  1. THAT in accordance with the decision of Justice Handrigan filed March 20, 2015, Allan Luyt of West Vancouver, in the Province of British Columbia, is appointed the Representative Plaintiff for the Non-resident subclass. (Members of the Class or Subclass are collectively referred to as “the Class” or “Class members”.)
  1. THAT the Class members’ claim is that between September 1, 2008 and November 22, 2011 (the “Class period”), the Defendant owed them, by virtue of their employment contracts, a Cost of Living Allowance (“COLA”). Class members claim they did not receive the COLA during the Class period, which they were entitled to by virtue of their contracts.
  1. THAT the nature of the Class members’ claim is breach of contract and damages arising from the Defendant’s failure to pay all the COLA monies, in whole or in part, which they claim they were entitled to be paid and the Class seeks payment of the amount withheld plus interest.
  1. THAT the common issue to be determined in this Class Proceeding is as follows:

Were members of the Class entitled by their contracts of employment to receive the full amount of the COLA for the period of September 1, 2008 and November 22, 2011?

  1. THAT should the common issue be answered in the affirmative, Class members shall be given notice pursuant Section 20 of the Act, which will outline any steps class members will be required to take to establish their individual claim to relief sought. The relief sought by Class members will be for damages in the amount of COLA payable in accordance with their employment contracts plus interest.
  1. THAT the Notice of Certification to the Class (“the Notice”) attached to this Order as Schedule “A” is approved pursuant to Section 19 of the Act and the Plaintiff shall give notice to the Class as of the date of this Order, in the following manner:
    • a. By posting the Notice upon the Plaintiff’s counsel’s website as of the date of this Order;
    • b. By sending the Notice by regular mail and/or email to the College of the North Atlantic as of the date of this Order, at the following address:

      i. College of the North Atlantic
      432 Massachusetts Drive
      PO Box 5400
      Stephenville, NL
      A2N 2Z6

      Attention: General Counsel
    • c. By sending the Notice by regular mail and/or email to all Class members whose name and last known mailing address have been provided by the Defendant or have been gathered in the Plaintiffs’ informal list, as of the date of this Order.
  1. THAT Class members who filed their income tax returns as Newfoundland and Labrador residents for the year 2014 are automatically included in the Resident Subclass but may opt out of this action by submitting an Opt Out Notice in the form attached to this Order as Schedule “B”, within 120 days of the date of the Notice, in the manner set out in the Notice attached to this Order as Schedule “A”.
  1. THAT Class members who did not file an income tax return for 2014 as a resident of Newfoundland and Labrador are part of the Non-resident Subclass and are not automatically included in this action. To participate, Non-resident Subclass members may opt into this action by submitting an Opt-in Notice in the form attached to this Order as Schedule “C” within 120 days of the date of the Notice, in the manner set out in the Notice attached to this Order as Schedule “A”.
  1. THAT within 30 days following the 120 day Opt-in/Opt Out period, counsel for the Class shall provide confirmation to the Court and the Defendant the number of all Resident subclass members who provided Opt Out forms and the number of all Non-resident subclass members who provided Opt In forms.

DATED at , in the Province of Newfoundland and Labrador, this 20th day of September, 2023.

_________________________________________

Click here to download a PDF of this document