Toronto partners J.L. McDougall Q.C., Anneli Legault and Norm Emblem assisted KPMG LLP in developing KPMG's Overtime Redress Plan (ORP) initiated in response to a proposed national class action on behalf of KPMG employees who claimed they had not been paid overtime in accordance with the relevant employment standards legislation across Canada.
The ORP included three levels of review of KPMG's initial decision with respect to whether an employee was eligible to receive overtime pay and, if so, the extent of an employee's entitlement.
In the event an employee rejected KPMG's assessment regarding eligibility and entitlement, the employee's claim would be reviewed by Crawford Class Action Services (Crawford), an independent third party claims administrator at KPMG's expense. In the event an employee rejected Crawford's assessment regarding eligibility and entitlement, the employee's claim would proceed to mediation before an independent mediator selected by the employee from a roster of mediators affiliated with the ADR Institute of Canada (ADR Institute) whose services were paid for by KPMG. In the event the employee's claim was not satisfactorily resolved through mediation, the employee's claim would proceed to binding arbitration before an independent arbitrator selected by the employee from a roster of arbitrators affiliated with the ADR Institute whose services were paid for by KPMG.
The proposed class action was settled subject to court approval prior to the certification hearing. The key term of the settlement was that KPMG's ORP would be rolled into the proposed class action as the mechanism by which the claims of current and former employees would be resolved. Justice Paul Perell of the Ontario Superior Court subsequently pre-approved the settlement and later certified the action for settlement purposes. The use of ADR as a component of KPMG's ORP was an essential selling feature of KPMG's ORP. No current or former employee objected to the proposed settlement prior to the certification hearing. Following certification, only three employees opted out of the class.