Canada: Ontario Superior Court Of Justice Rejects Bank-Overtime Class Action Certification

In the recent decision in Fresco v. CIBC, Justice Lax of the Ontario Superior Court of Justice dismissed a certification motion by a representative plaintiff seeking compensation for unpaid overtime allegedly caused by CIBC's overtime policies. The Court was not satisfied that there was any evidence of systemic wrongdoing by CIBC. In addition, Justice Lax held there was insufficient evidence that CIBC's overtime policy was illegal and that a class proceeding was not the preferable procedure for resolving the largely individual claims of the proposed class members.

Framing her claim in breach of contract and unjust enrichment, Ms. Fresco brought the class proceeding on behalf of current and former customer service employees working in CIBC branches. It was alleged that CIBC was in breach of its duty to pay all of the proposed class members' overtime wages and to keep accurate records of those payments. The plaintiff attempted to frame her case as one of systemic wrongdoing, which was rejected by the Court.

'The Court noted that Ms. Fresco's claim was an "off-the-clock" case, which alleged that CIBC failed to compensate employees entitled to overtime in the manner required by the Canada Labour Code (CLC). The plaintiff argued CIBC's overtime policy's pre-approval requirement was illegal. She also contended that the policy had been purposely designed to thwart the ability of employees to collect overtime, particularly in light of the allegation that branch employees were customarily unable to finish their basic employment duties within the hours of a standard workday. It was also argued that the "time-in-lieu" option offered to employees under the CIBC overtime policy was impermissible under the CLC. Ms. Fresco pleaded that CIBC also failed to comply with the minimum requirements of the CLC by failing to keep accurate overtime records.

In applying the five-step test for certification, Justice Lax found the representative plaintiff's claim failed to raise common issues to advance the claims of the class members. 

Cause Of Action

CIBC argued that its overtime policy was not illegal and therefore the plaintiff did not meet the first requirement for certification on that issue, namely that there be a tenable cause of action, and that all of Ms. Fresco's proposed common issues relying on a determination of the legality of the overtime policy should be dismissed.

Although Ms. Fresco contended that the preapproval-of-overtime requirement was illegal, no binding or persuasive cases were tendered in support of that conclusion. Upon examination of the relevant provisions of the CLC, Lax J. ruled that such a requirement was not illegal in the context of CIBC's policy. Ms. Fresco's real complaint, in the view of the Court, was not that the overtime policy was illegal, but that it was not properly applied at the branch level. In addition, the Court examined the "time-in-lieu" provisions in CIBC's overtime policy and found them to be legal. Consequently, Ms. Fresco's common issues directed at the illegality of CIBC's overtime policy were excluded. In addition, Justice Lax held that even had she found the overtime policies to be illegal, that would not advance the claims of the class members in any significant way.

Common Issues

In considering whether or not there were sufficient remaining common issues in the claim to meet the test for proceeding as a class action, the Court characterized Ms. Fresco's claims as requiring individual specific factual examinations as opposed to determination of the issue on a class-wide basis.

The Court found that Ms. Fresco failed to adduce sufficient evidence that CIBC did or failed to do something that deprived the proposed class members of overtime compensation. The absence of any meaningful commonality between the claims negated any benefit of a class-wide proceeding.

The plaintiff argued that the illegality of the policy was the lynchpin common issue, but in light of the Court's preliminary finding that the overtime policy was not illegal, this was untenable. Furthermore, even ignoring the policy's legality, the Court held that the preapproval requirement in and of itself would not cause the damages alleged. Rather, it was held that any damages would be independent of the policy, and caused by an implementation failure. Such a finding would necessarily be fact-specific and could not be determined on a class-wide basis. In sum, the legality of the policy did not answer the crucial question of whether CIBC was liable for unpaid overtime in the circumstances of the claim. Justice Lax found that there were "a number of individual circumstances that arise for disparate reasons and require additional resolution."

The Court also found that the question of whether or not there was a breach of record-keeping requirements was not a common issue sufficient to materially advance the litigation because there were no causes of action or damages flowing from such a failure. Without evidence of systemic wrongdoing, claims that CIBC either breached employment contracts or was unjustly enriched were not common issues sufficient to justify certification of the class.

With regard to the assertions of a systemic policy, practice and/or experience of unpaid overtime at CIBC, the Court concluded that the affidavit evidence of several proposed class members revealed a variety of individual circumstances and unrelated causes for non-payment of overtime. In Lax J.'s view, these could only be resolved through consideration of the evidence on an individual basis. Instead of common issues, the evidence demonstrated nothing more than a "superficial appearance of commonality that would inevitably break down into individual inquiries."

Finally, Justice Lax found that this was not an appropriate case for aggregate damages to be determined as a common issue, noting that aggregate damages cases indicate that it is to be an aggregate of "potential liability," which refers to "a direct risk of harm wrongfully created by the defendant .rather than to some vaguer probability of liability."

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.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
In association with
Related Topics
 
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions