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Posted on December 12th 2011 in Commercial Law

The CIBC Overtime Case: Chapter III

In the fall of 2007, we told you about a class action lawsuit against the Canadian Imperial Bank of Commerce (CIBC). The lawsuit, led by CIBC teller Dara Fresco, alleged that CIBC non-management employees are forced to work unpaid overtime since they are assigned heavy workloads that cannot be completed within standard working hours. In order for this case to proceed as a class action, it had to be certified as such by the court. (See box for conditions of certification.) In the summer of 2009, Madam Justice Lax of the Ontario Superior Court dismissed the motion for certification.

She concluded that any losses were not caused by an allegedly illegal policy, but rather by a failure independent of the policy to compensate for overtime. Not satisfied with this decision, Ms. Fresco brought her fight to the Ontario Divisional Court. Once again her application for certification was been turned down. On September 10, 2010, in a 2 to 1 split, the Court upheld Madam Justice Lax’s decision. The dissenting judge would have certified the action. The next step for Ms. Fresco is the Ontario Court of Appeal. While the case against the CIBC remains stalled, a similar case against the Bank of Nova Scotia, launched by Cindy Fulawka, has received the green light. Fulawka, a personal banker with the Bank of Nova Scotia, launched her suit on behalf of personal banking officers, financial advisors, and small business account managers. In deciding to certify this action, Mr. Justice Strathy concluded that there is “an evidentiary basis in this case of systemic wrongs that give rise to common issues, the resolution of which would advance the claim of every Class Member.”

He went on to find that “the systemic wrongs flow from a policy that failed to reflect the realities of the workplace because it put the onus on the employee to obtain prior approval for overtime rather than requiring the employer to ensure that employees were paid for overtime that they were permitted or required to work.” With respect to Ms. Fresco’s case he stated, “Unlike the case in Fresco, there is evidence in this case that the failure to pay overtime occurred because of the policy, not independent of the policy. There is also evidence that the failure to pay overtime was attributable to systemic conditions, as opposed to purely individual circumstances.” The Divisional Court is scheduled to hear the Bank of Nova Scotia’s appeal in early December.