$600-million class-action lacked 'element of commonality,' says court
A $600-million class-action lawsuit launched against the Canadian Imperial Bank of Commerce (CIBC) for unpaid overtime has been dismissed by the Ontario Superior Court. “In my opinion, there is no asserted common issue capable of being determined on a class-wide basis that would sufficiently advance this litigation to justify certification,” wrote Justice Joan Lax in her decision.
The suit was launched in June 2007 by Dara Fresco, a head teller at a Toronto branch of the CIBC, who claimed that in her 10-year career with the bank at 12 different branches, she was required to work on average two to five hours of overtime every week. While she filled out time sheets, she was discouraged from recording the extra hours. She said the practice was widespread among non-management employees.
The class-action suit covered current and former CIBC tellers, personal bankers, commercial bankers and account executives. Banks are regulated by the Canada Labour Code which states that federally regulated businesses must pay overtime to non-management employees who work more than eight hours a day or 40 hours a week.
The cornerstone of Fresco’s claims was the alleged illegality of the CIBC policy on overtime and, in particular, the pre-approval requirement. However, the policy is not illegal, according to Lax, and any losses suffered by the class members were caused “a failure independent of the policy to compensate for overtime hours worked that were required or permitted.”
While some of the certification requirements could be satisfied, the action lacked the essential element of commonality, said the justice.
“It is an assertion of systemic wrongdoing. It is my conclusion that there is no evidentiary foundation for this but even if there were, this is not a case where questions of systemic wrongdoing can be resolved without examining the individual claims, thereby defeating the purpose of a class action.”
