Appeal of class action certification fizzles as appeal court agrees with lower court on lack of systemic problem in bank’s overtime policy
A bank employee's appeal of an Ontario court's denial of class action certification in a suit for unpaid overtime against the Canadian Imperial Bank of Commerce (CIBC) has been dismissed.
On Sept. 10, 2010, the Ontario Divisional Court upheld the Ontario Superior Court’s finding that Fresco v. Canadian Imperial Bank of Commerce didn’t meet the threshold of qualifying as a class action.
Dara Fresco filed the suit on behalf of CIBC employees, who claimed the bank’s overtime policy violated the requirement in the Canada Labour Code that employees should be paid one and one-half times their regular wages when “required or permitted” to work in excess of standard hours of work. The employees said the pre-approval requirement allowed CIBC to avoid paying any overtime pay, particularly to many employees who were routinely required or allowed to work overtime. When the Superior Court found there wasn’t a common issue and each employee’s claim would have to be tried individually, Fresco appealed to the Divisional Court.
However, the Divisional Court upheld the lower court’s findings that:
• It was “plain and obvious” CIBC’s overtime policy complied with the requirements of the Canada Labour Code and the 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 of any systemic policy, practice or experience of unpaid overtime at CIBC.
•There was no evidence 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 the Superior Court’s decision in Fresco was incorrect.