The Ontario Superior Court has refused to certify an overtime class action against the Canadian Imperial Bank of Commerce because the claim did not satisfy the commonality requirements under the Class Proceedings Act.
In Fresco v. Canadian Imperial Bank of Commerce, Justice Joan Lax says the commonality test is not a difficult one. However, plaintiff Dara Fresco was unable to prove the members of the proposed class had a similar enough complaint against the bank to proceed with the claim.
“This is a claim for systemic breach of duty that alleges that CIBC failed to compensate eligible employees for overtime,” writes Lax. “Ms. Fresco has the burden to show by some evidence that CIBC did something or failed to do something in breach of this duty that deprived or potentially deprived class members of the compensation to which they are lawfully entitled.
“At certification some basis in fact must be shown that this issue exists and that its resolution will move the individual overtime claims forward. Absent commonality on this core issue, there is nothing common for the common issues trial judge to decide and the individual nature of the claims will negate any benefit to a class action.”
Members of the proposed class had different complaints against the bank. Fresco’s claim was on the basis of whether or not there was accommodation given for breast-pumping breaks.
Another class member disputed whether the length of smoke breaks should be included when calculating overtime entitlement. A third member of the class based her claim on hours worked between 8 a.m. and 8:30 a.m. on the days that her husband dropped her off early for work.
“As was the case with a number of other affiants, they mistakenly believed that they were entitled to be paid at the overtime rate whenever they exceeded their scheduled hours, even if those hours were less than 8 hours in a day or 37.5 hours in a week,” writes Lax.
“In my view, this evidence does not provide a sufficient basis in fact to show the existence of systemic wrongdoing. What it shows is a number of individual circumstances that arise for disparate reasons and require individual resolution.”
John Field, who led the Hicks Morley Hamilton Stewart Storie LLP team representing the bank, says the CIBC has a policy allowed under the Canadian Labour Code, that requires the authorization of all overtime. While the complaints were different in nature, Field says the plaintiffs were focusing their commonality claim on the policy.
“I think the plaintiffs obviously thought that they could convince the court that there was something common about trying whether the policy was legal or not,” Field says. “But the policy is not illegal.”
In fact, Field says, “most if not all” larger employers governed under the CLC have policies in place that require authorization for overtime.
“An employer who is faced with a large number of employees can’t have a workplace where an employee comes much after the fact and says ‘by the way I stayed four hours last night, but you may not have known about it or didn’t know about it, but I want to be paid for that’,” says Field. “That is not the way the workplace works.”
However, the same cannot be said for companies governed under Ontario labour rules rather than federal labour laws. Adrienne Campbell, a labour law associate with Miller Thomson LLP, says Lax anticipates the difference between Ontario law and federal law in her decision.
“Just because you have a policy that says unauthorized overtime will not be compensated does not allow you to not pay overtime if unauthorized,” she says of Ontario law. “You still have to pay it and then what happens is you have to deal with it, deal with the fact that someone is working when they shouldn’t be as a performance issue.”
Employees from the Bank of Nova Scotia and Canadian National Railway Co. have launched similar overtime claims. A certification hearing for the Bank of Nova Scotia claim is set for July and the CN hearing is scheduled for 2010.
Louis Sokolov, one of the plaintiffs’ lawyers who was quoted on CBC.ca saying, “the only real basis for non-unionized employees to go forward with claims like this is in the context of a class action” and that this ruling will make those more difficult. Sokolov did not return requests for interviews prior to press time.
