After careful analysis
of the claim, Justice Perell decided not to exclude group 1 because although they could not pursue damages for wrongful
dismissal, they were free to advance claims for the other aspect
of the
class action suit.
Despite the fact that section 97
of the Employment Standards Act (ESA) specifies that an employee who files a complaint with the MOL for unpaid termination and severance pay under the ESA can not commence a civil proceeding for wrongful
dismissal if the complaint and the proceeding would relate to the same matter, 236
of the
class members who had filed a complaint under the ESA had joined the
class action suit.