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Denny's foreign workers win class action certification

Over 70 foreign workers who say they were cheated by their employer after they were brought to Canada to work at local Denny's restaurants have won a significant legal victory. On March 5, Madam Justice Shelley Fitzpatrick of the B.C. Supreme Court ruled that the workers can proceed with a class action against Northland Properties Corporation -- doing business as Denny's Restaurants -- and Dencan Restaurants Inc., the companies that run Denny's Restaurants in British Columbia. If successful, the class action certified by the court could cost Denny's upwards of ten million dollars.

As previously reported in The Tyee, the workers involved, recruited in the Philippines for Denny's, said they were improperly charged for their travel to and from Canada, and were not properly paid when required to work overtime at the popular local restaurants. Further, they alleged, they did not always get a full 40 hours of work each week.

Denny's spokespeople told The Tyee in 2011 that the firm had done nothing improper in its dealings with temporary foreign workers. They said that the company had participated in the Temporary Foreign Workers program since 2006, and had brought about 200 workers in from other countries during that time.

"We hope that this certification will pave the way for other groups of temporary foreign workers to effectively and economically enforce their rights in any other cases where employers may be taking advantage of their vulnerability," said Charles Gordon, of law firm Fiorillo, Gordon, Glavin.

Added co-counsel Christopher Foy of Kestrel Workplace Legal Counsel: "The Court correctly concluded that class certification here is a vastly superior method of adjudication because the common issues will only have to be heard and decided once, thereby promoting judicial efficiency and access to justice."

In her judgment, Madam Justice Fitzpatrick says:

"A class proceeding will substantially advance this litigation in terms of an overall resolution of the common issues which addresses the need for judicial economy in its approach. In addition, recognizing the vulnerable situation in which these temporary workers find themselves, a class proceeding will provide the access to justice that they require in an environment that will be of assistance to them."

The judge goes on to observe that on some points, earlier attempts to get Denny's to correct its behavior towards its workers had not been successful.

"Finally, behaviour modification is no doubt required if these claims are ultimately proven. One allegation, that relating to the airfare issue, has already been conceded by the defendants and to that extent, the proceedings are promoting that objective in the preliminary stages.

"It bears repeating that the investigations by the Employment Standards Branch in late 2010 and early 2011 had little effect on the practices of the defendants regarding payment of overtime and despite efforts to ensure that overtime was being properly paid, further breaches were recorded which resulted in a Determination on June 17, 2011 with penalties."

Tom Sandborn covers labour and health policy stories for the Tyee. He welcomes your feedback and story tips at [email protected]


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