The Court of Appeal for Ontario today denied certifying a
"misclassification" class action claiming overtime pay.
In doing so, the Court confirmed that where job descriptions of the
proposed class are variable they do not have common issues.
In Brown v. Canadian Imperial Bank of Commerce the
plaintiff claimed that certain types of investment advisors (IAs)
working for CIBC World Markets were eligible for overtime pay under
the applicable employment legislation. The motions judge and the
first level of appeal court, the Divisional Court, had both
previously refused to certified the action (see some of our
posts on the overtime class actions).
The Court of Appeal refused to overturn the lower court
decisions based on the following findings:
Under the applicable employment legislation, an individual is
not entitled to overtime pay if he or she has managerial or
Whether individuals holding investment advisor jobs at CIBC had
managerial or supervisory functions depended on their individual
circumstances. People with the same job level or title could have
different functions and responsibilities. Some investment advisors
were at the "managerial" end of the spectrum in terms of
their autonomy, independence, discretion and authority. Others were
CIBC's own written overtime policy, which referred to job
titles, was a guideline; ultimate eligibility for overtime pay was
determined based on the individual investment advisor's duties
"Misclassification" Versus "Off-the-Clock"
Overtime Class Actions
The Court of Appeal cautioned in Brown that there is no
rule that "misclassification" claims are automatically
incapable of being certified, just as there is no rule that
"off-the-clock" cases should automatically be certified.
In each, it depends on the particular facts. For
"misclassification" cases, if the evidence shows a
disparity of functions and responsibilities within the proposed
class, then there is no common issue to be certified.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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