Ontario SCJ Denies Certification in CIBC Overtime Case

On June 18, 2009, the Ontario Superior Court of Justice dismissed the motion to certify a class action against Canadian Imperial Bank of Commerce concerning the company's overtime policies and practices for retail branch employees: 2009 CanLII 31177 (ON S.C.).

Justice Joan Lax dismissed the $600 million bid, ruling that the facts surrounding complaints of unpaid overtime at CIBC were too individualized to be addressed as a class-action lawsuit and confirming that CIBC's overtime policy was legal.

The claim was launched by Dara Fresco, a branch employee with CIBC since 1998.

In dismissing the certification motion, Justice Lax concluded that the circumstances of Fresco's individual case, as well as the evidence of nine other individuals, showed “a variety of individual circumstances” that could only be resolved through individual legal claims. She concluded that the evidence “provides no basis in fact that there is a systemic practice of unpaid overtime at CIBC.”

In addition, Justice Lax rejected Fresco's allegations that CIBC's overtime policy was unlawful, and that it violated the statutory requirements under the Canada Labour Code. Fresco alleged that the policy was illegal in that it required employees to obtain approval prior to working overtime and it provided employees with the option of taking time off in lieu of overtime pay. Justice Lax rejected these claims and found that it was plain and obvious that the policy complied with or exceeded legal requirements.

This is the first of a recent wave of proposed class actions involving allegations of unpaid overtime to reach the stage of a contested certification motion.

Torys LLP and Hicks Morley Hamilton Stewart Storie LLP represented CIBC, working with in-house counsel Jennifer Warren, Melissa Kennedy (formerly CIBC), Stephen Scholtz and Elizabeth Fanjoy. Torys' team included Patricia Jackson, Linda Plumpton, Stuart Svonkin, Natalie Biderman, Charles Finlay and Emily Kirkpatrick. Hicks Morley's team included John Field, Lauri Reesor, Elisha Jamieson and Kathryn Bird.

Dara Fresco and the proposed class were represented by Sack Goldblatt Mitchell LLP and Roy Elliott O'Connor LLP. The team at Sack Goldblatt included Howard Goldblatt and Louis Sokolov. The REO team included Douglas Elliott, David O'Connor and Jason Tan.