Executive Summary: Key Legal and Evidentiary Issues

• Plaintiff Susan Williams brought a class action against Enbridge Gas Inc. and Enbridge Inc. for failing to properly administer statutory leave paperwork, resulting in reduced pension credits for affected employees.
• Central to the claim is s. 51(3) of the Employment Standards Act, 2000, which requires employers to continue pension contributions during statutory leave unless the employee provides written notice otherwise.
• Settlement Class Members comprise 223 individuals who did not give Enbridge written notice that they did not intend to pay their pension contributions during their statutory leaves.
• Three issues were before the court: approval of the settlement agreement, approval of Class Counsel's fees and disbursements, and approval of an honorarium for the representative plaintiff.
• Key litigation risks included uncertainty over class size and damages scope, potential limitation period defences, and complications arising from the involvement of both unionized and non-unionized employees.
• An honorarium for Williams was denied because her role as representative plaintiff did not meet the exceptional or rare threshold required under applicable jurisprudence.

Facts of the case

This class action was commenced by plaintiff Susan Williams against defendants Enbridge Gas Inc. and Enbridge Inc. (collectively, "Enbridge") arising from allegations that Enbridge failed to properly administer paperwork for pregnancy, maternity, and/or parental leaves ("Statutory Leave"). The alleged administrative failure resulted in a reduced amount of Credited Service being recorded under the Enbridge pension plans for a limited number of employees, which in turn lowered their pension payments upon retirement or withdrawal. Williams issued the statement of claim on March 12, 2021, which was subsequently amended on July 5, 2021 — to name counsel for Enbridge and correct the name of one of the pension plans — and again on February 1, 2022 to clarify the scope of the proposed class. In her personal evidence, Williams stated that she took two parental leaves during her employment with Enbridge, that no one from Enbridge discussed the pension implications of those leaves with her, and that she never signed or received any documents relating to pension issues during those leaves. Following her termination by Enbridge Gas Inc. in March 2019, Williams had also commenced a separate wrongful dismissal action seeking approximately $300,000 for wrongful dismissal, approximately $100,000 for incorrect placement on the defendant's bands or grids, and damages for the reduced pension arising from the failure to credit her Statutory Leave. She eventually settled that personal action for a "substantial amount." Upon discovering that other employees may have been similarly affected, Williams — without any prior knowledge that an honorarium was available — chose to act as representative plaintiff in the class action, carving the pension claim out of her personal action.

Statutory provision and contractual context at issue

The claim was grounded in s. 51(3) of the Employment Standards Act, 2000, S.O. 2000, c. 41, which provides: "During an employee's leave under this Part, the employer shall continue to make the employer's contributions for any plan described in subsection (2) unless the employee gives the employer a written notice that the employee does not intend to pay the employee's contributions, if any." The class definition covered former and current Enbridge employees — whether unionized or not — who took a Statutory Leave during the "Affected Period," were members of one or both Enbridge pension plans, and did not accrue Credited Service during that leave. The Affected Period was defined in the statement of claim as: for the Enbridge Inc. Plan, from December 12, 1988 until the date of trial; and for the Enbridge Gas Inc. Plan, from December 20, 1990 until the date of trial.

Court's reasoning and analysis

Justice Glustein assessed the settlement against the well-established test of whether it is fair, reasonable, and in the best interests of the class as a whole, applying the multi-factor framework set out in Parsons v. Canadian Red Cross Society. On the likelihood of success, the court acknowledged that Williams' evidence provided strong support for a breach of s. 51(3), but identified significant risks: the true scope of losses was unclear because individual circumstances varied widely, including cases where employees received but did not respond to contribution-waiver forms; limitation period defences posed uncertainty as to when the two-year period began running; and the involvement of unionized employees risked fracturing the class, a concern heightened by the Court of Appeal's recent decision in Knisley v. Canada (Attorney General), 2025 ONCA 185, which cautioned against unworkable class definitions and confirmed that conditional certification is not available. On the terms of the settlement, the court found that a 75% recovery of total losses was substantial given those risks, and that a 25% discount appropriately reflected the certification and damages scope uncertainties. The court also noted — drawing on Manuge v. Canada, 2013 FC 341 — that the pre-calculated, pre-determined entitlement structure was an efficient and commended approach, and that the absence of a third-party claims administrator preserved more of the settlement fund for class members. Any unclaimed balance is to be paid cy près to the Canadian Women's Foundation. On Class Counsel's fees, the court approved a 30% contingency fee — in accordance with the retainer agreement that provided for 25% if settlement was reached within one year and 30% if the matter lasted longer, as it did — finding the fees fair and reasonable, and noting that the total fees approved were approximately $80,000 less than Class Counsel's docketed time value of over $326,993 after almost six years of negotiations. On the honorarium, the court held that the applicable standard — set out in Fresco v. Canadian Imperial Bank of Commerce, 2024 ONCA 628, and Doucet v. The Royal Winnipeg Ballet, 2023 ONSC 2323 — requires exceptional and rare circumstances going well above and beyond the duties of a representative plaintiff, including exposure to a real risk of costs or significant personal or financial hardship. Class Counsel itself acknowledged that Williams' contribution did not meet that threshold, there was no evidence of financial hardship given that Class Counsel bore adverse costs risk on a contingency basis, and Williams' decision to transfer her pension claim to the class action did not constitute the kind of exceptional circumstance that warrants an honorarium.

Ruling and overall outcome

The court approved the Settlement Agreement, finding it fair, reasonable, and in the best interests of the class. It also approved Class Counsel's fees, disbursements, and HST in the total amount of $301,575.80 — comprising fees of $248,050.80 (30% of the Settlement Sum), HST on fees of $32,246.60, and disbursements of $21,278.40. The honorarium request of up to $5,000 for Williams was denied. The settlement fund of $826,836 will be distributed to 223 Settlement Class Members based on pre-calculated entitlement amounts, with any remaining balance directed cy près to the Canadian Women's Foundation. The successful parties are the Settlement Class Members, represented by plaintiff Susan Williams, with a total settlement sum of $826,836 approved in their favour.