On September 10, 2010, the Ontario Divisional Court upheld the
denial of class action certification in Fresco v. Canadian
Imperial Bank of Commerce.1
The plaintiff, Dara Fresco, is a customer service representative
at one of CIBC's Toronto branches. Ms. Fresco sought to bring a
class proceeding on behalf of tens of thousands of current and
former CIBC branch employees located throughout Canada. On June 18,
2009, Justice Lax of the Superior Court decided that the case did
not meet the requirements necessary to proceed as a class action.
Ms. Fresco appealed that decision to the Divisional Court.
In dismissing the plaintiff's appeal, the Divisional Court
affirmed the key conclusions made by Justice Lax in her decision
denying certification. Specifically, it upheld Justice Lax's
it is "plain and obvious" that CIBC's Overtime
Policy complies with the requirements of the Canada Labour
Code; that policy included a requirement that overtime hours
receive management approval and a provision allowing an employee to
choose to receive time off in lieu of payment;
there was no evidence before the Court of any systemic policy,
practice or experience of unpaid overtime at CIBC; and
there was no evidence that CIBC's record keeping with
regard to employees' hours of work violated the law.
The Divisional Court distinguished Fresco from a
proposed overtime class action brought against the Bank of Nova
Scotia, noting that the certification decision in each case turned
on specific facts. The Court concluded that nothing in the BNS
decision suggested that the decision by Justice Lax in
Fresco was incorrect.
In a dissenting decision, Justice Sachs concluded that she would
have allowed the appeal and certified the action.
The Divisional Court also upheld the award of costs made in
favour of CIBC on the certification motion. This is the highest
award yet to a single successful defendant on a certification
The plaintiff has stated that she intends to seek leave to
appeal the decision to the Court of Appeal.
1 The authors are counsel to the Canadian Imperial Bank of
Commerce in the Fresco action.
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