Nelligan O’Brien Payne LLP has commenced a class action against BlackBerry Limited (“BlackBerry”) on behalf of a group of BlackBerry’s employees working in Ontario and across Canada.
Update. October 23, 2018
The updated/revised litigation timetable that was posted on our May 10, 2018 update is no longer current given some additional steps that were required as part of this matter. The Refusals Motion has been heard and decided upon and the additional documents that needed to be produced by BlackBerry have been produced, with no further cross-examinations left to be completed. The next steps are for the parties to exchange their Factum and authorities for purposes of the Certification Motion. However, given the additional steps that were required, the Certification Motion had to be rescheduled; dates are now being canvassed for the spring of 2019. Once this motion is scheduled, we will further update the website.
Update. May 10, 2018
We are now posting an updated/revised litigation timetable that has been agreed-upon by the parties with respect to the remaining steps that lead up to the certification motion. This timetable will be subject to change, if required.
The timetable has been completed up to Item 12 and the motion with respect to BlackBerry’s refusal to answer certain questions or provide certain documentation on its cross-examinations did proceed on April 30th and May 1st as indicated. We await the decision from the judge with respect to this motion. The plaintiff is also now taking steps to change the definition of the class. No decision will be rendered by the judge on the motion until that change has formally taken place.
We will provide another update once more information becomes available.
Update. February 5, 2017
BlackBerry arranged to transfer over 300 employees across Canada to a business partner. Only after employees accepted employment with the business partner, BlackBerry informed the employees that they had resigned their employment. Blackberry provided resignation letters for the employees to sign and dictated their last date of employment. Blackberry stated that the transfer is not a sale of business, meaning the employees will lose all of their years of service.
BlackBerry’s actions amount to a termination of the employees’ employment. This entitles these employees to statutory, common law, and/or contractual entitlements on termination. BlackBerry has stated that it will not pay BlackBerry employees any of these entitlements, despite the fact that employees lose all of their years of service.
BlackBerry has breached its duties of good faith and honesty, and has knowingly misled the employees. BlackBerry structured this transaction in such a way as to avoid paying these employees their statutory entitlements.
We seek damages for the plaintiffs for minimum provincial statutory entitlements on termination, contractual entitlements on termination, and/or common law entitlements on termination. We are also asking for bad faith and punitive damages, as well as costs.
Plaintiffs in the class action include individuals who were employees and/or dependent contractors of BlackBerry Limited in Canada, and who were offered and accepted employment with the business partner.
- July 24, 2017. Court Endorsement and Attached Timeline for Certification Motion are available in Documents section
- July 4, 2017. Motion Record Of The Moving Party is available in Documents section
- March 23, 2017. Statement of claim is available in Documents section
- February 16, 2017 Class Action Against BlackBerry commenced
The certification motion date could be subject to change
What is a Class Action lawsuit?
A class action is a special type of lawsuit in which one plaintiff, named the representative plaintiff, claims against one or more defendants on behalf of a group of people, known as the class, where common issues exist within the class.
What are the benefits of starting a Class Action lawsuit?
A class action allows one lawsuit to be argued, instead of numerous, oftentimes hundreds, of individual lawsuits, when common issues exist among those class members. A class action saves both time and money to the individual class members, and helps with scarce judicial resources.
What are the steps in a Class Action lawsuit?
The first step, similar to any lawsuit, is to issue a Statement of Claim (“Claim”). This is a document that concisely sets out the relevant facts and also the award the plaintiff is seeking from the defendant. Only the representative plaintiff is named in a class action Claim – not every class member. The Defendant(s) will have 20 days from the date the Claim is issued to file its Statement of Defence (“Defence”), although a the Defendant may insist the class action be certified first.
In Ontario, all class actions must be certified by a court. In order to do this, the plaintiff must bring a motion to certify the class. If the Defendant(s) contest(s) the motion to certify, there will be a pre-certification case management conference.
Next, at the Certification Motion, the court will determine whether the proceeding is appropriate for a class action and if so, the court will deal with the details of the certification.
Once the certification order has been made, the court will approve a method of providing notice to all class members of the class action. This is to let every class member know that a class action has been commenced on their behalf, and to give them the opportunity to opt out of the class action should they wish to. This is required as every individual who fits within the definition of the class will automatically be included in the class, unless and until they opt out.
After certification is granted, there is usually a limited window of opportunity to opt out. This window has tended to range from 30-120 days in Ontario, but can run longer in some cases.
If the Defendant(s) has/have not by this point provided a Defence, they will. Then, the regular steps of litigation, generally including Mediation, Discoveries, and Pre-trial will take place. If there is any settlement, the settlement must be approved by the Court. If not, the matter would proceed to trial.
What is the difference between a class action and a group action?
The difference is the obligation to certify the class action. A class action binds everybody who meets the description of the class, so the court needs to supervise its creation. A group action, on the other hand, only binds the members of that group who bring the claim. A class action takes more time to put together because of the certification motion, but usually ends up being cheaper because costs are shared among the entire class.
Who is named in a Class Action?
Only the representative plaintiff and the Defendant(s) are specifically named in the class action. The representative plaintiff is a member of the class who represents all members of the class and who has responsibilities placed upon him/her throughout the litigation process.
How are the parameters of the class determined?
The class is chosen by the representative plaintiff. The Court can then either accept the class or require a different class. Courts are generally deferential to the class chosen by the representative plaintiff. The Supreme Court of Canada has stated that so long as the class is bounded (i.e. not unlimited), and defined by reference to objective criteria, it is acceptable.
What is done about class members who become “loose cannons?”
If a class member refuses to accept the terms of the settlement, then legally they have to opt out of the class. Since terms of settlement have to be court-approved, a “loose cannon” would have to convince the court that the settlement is inappropriate in order to affect the rest of the class.
Can the Statement of Claim be modified to add other common issues?
In Ontario, the representative plaintiff cannot amend its Statement of Claim without the permission of the Court. The Court will not allow the representative plaintiff to add new common issues that contain “serious new allegations which fundamentally change the nature of the action to one quite different from the action originally certified.”
I want to take part in this class action – what do I do?
Anyone who falls within the parameters of the class – currently, “all persons in Canada who are or were employees and/or dependent contractors of BlackBerry Limited (“BlackBerry”) who work or worked for BlackBerry in Canada, and who were offered and accepted employment with Ford Motor Company of Canada (“Ford”) after January 1, 2016”, is automatically a class member. There is no opting into a class action. Once the class becomes certified (see above for more information), you will have an opportunity to opt out of the class action should you wish to do so.
If you fall within the parameters of the class, we ask that you click here, and complete the “BlackBerry class member contact form”. Once completed, we will contact you for more information, which will include an opportunity to provide us with relevant documents.
Should you later change your mind after the action is certified, you are still able to opt out.
If you have general questions that cannot be answered by way of these FAQs, please do not hesitate to contact us at email@example.com.
I have been asked to sign a resignation letter – what should I do?
We strongly discourage employees from signing these letters. If you have any questions about what to do, you should contact our office directly. You can reach us at: firstname.lastname@example.org.
What happens if I have already signed a resignation letter?
If you have already signed a resignation letter, you will still be a class member. If you have any questions about what to do, you should contact our office directly. You can reach us at: email@example.com.
I am worried about my job with Ford. Can Ford do anything to my employment if I choose to join this class action?
We have started this class action on behalf of employees, so that they do not have to bring individual claims and so they can remain anonymous, because we are aware they have concerns about their employment with Ford. We will not be providing Ford or Blackberry with any information about individuals who contact us.
In any event, the claim, in part, is seeking to enforce your statutory rights on termination, including those found within Ontario’s Employment Standards Act, 2000 (“ESA”). This type of legislation contains protections from reprisal (any penalty) for asserting a right under employment statutes. If Ford treats you negatively or dismisses you for trying to enforce your rights, they would be in contravention of the ESA and other provincial employment statutes.
If I am a Class Member, how will I be provided with notice once the action is certified?
Notice will only be provided after we receive the Certification Order from the court. Notice can be provided in a variety of ways, including mail, advertisements, and postings. The notice would also be posted on our website.
I do not want to take part in this class action – what do I do?
As described above, you will be able to opt out of this class action once the Certification Order has been received, and after notice to the class members has been sent. At that time, you will be able to complete an opt-out form and provide that to us.
If I choose to remain a member of the Class, will my name be made public?
Only the name of the representative plaintiff will be made public. We will not release any names to BlackBerry until much later in the process when remedies are being determined and will do all we can to protect the confidentiality of your personal information.
How will the case be managed between the lawyers of Nelligan O’Brien Payne, the representative plaintiff, and the class members?
The representative plaintiff will work directly with our firm to move this lawsuit forward and represent the class members in court. He has the duty to perform certain tasks with respect to the litigation, including being examined during discovery. Class members will be updated frequently about what is going on.
General information about the lawsuit will be posted on our website at http://nelliganlaw.ca/class-actions/blackberry/.
Will I need to pay anything to Nelligan O’Brien Payne in order to remain a member of the Class?
No. We are not requiring class members to pay anything to the firm in order for them to be and remain a member of the Class.
What are the chances of winning this Class Action?
It is impossible to predict whether we will win this lawsuit. However, we would not have chosen to start this action if we did not feel that we would be successful.
How much money will I get if Nelligan O’Brien Payne wins the Class Action?
There is more than one way to win this action. We could either settle the claim outside the courtroom or go to court, for a full trial. Therefore, it is hard to predict how much money any one class member would receive. This depends on when the claim is settled, for how much it settles, how many members remain as part of the class, and your individual entitlements to notice and severance, among other variables.
If Nelligan O’Brien Payne loses the Class Action, will I owe the firm or BlackBerry any money?
If we lose this action, you will not owe any money to the firm or BlackBerry as a result of this Class Action.
How long will it take for this Class Action to be resolved?
An action may settle prior to going to court, or after trial. It is impossible to predict how long this action will take to resolve. However, we will work hard to diligently move this file forward.
- BlackBerry Ltd CEO had ‘mixed emotions’ about sending employees to Ford, $20-million lawsuit claims – Financial Post, March 24, 2017
- BlackBerry employees file $20-million class action lawsuit over transfer to Ford – Financial Post
- Former BlackBerry employees claim loss of seniority, entitlements after Ford partnership-video
- BlackBerry sued by employees – CBC News Ottawa
- BlackBerry to face class-action lawsuit from employees over Ford partnership
- Class action lawsuit filed on behalf of 300 BlackBerry employees – CTV News – Kitchener – video
- BlackBerry sued by over 300 former employees