Ontario Judge Denies Certification In Overtime Class Action - Individual Nature Of Issues Incapable Of Resolution On A Common Basis

In Brown v. Canadian Imperial Bank of Commerce, Justice Strathy of the Ontario Superior Court of Justice examined the plaintiff's motion to certify the proceeding as a class action under the Class Proceedings Act, 1992 on behalf of a class of employees of the defendants Canadian Imperial Bank of Commerce (CIBC) and CIBC World Markets Inc. (CIBCWM) (referred to collectively as CIBC).

Facts:

Unlike other recent similar overtime class actions, which alleged that hours worked by overtime-eligible employees was not recognized and paid by the employer, the question to be answered in this case was the eligibility of the class members to overtime. The plaintiffs alleged that they and other similarly-situated class members had been wrongly classified by CIBC as ineligible for overtime, in violation of their contractual obligations, the Canada Labour Code (the CLC, for CIBC employees) and the Employment Standards Act, 2000 (the ESA, for CIBCWM employees).

The plaintiffs proposed to include within the class "all Ontario current and former CIBC and CIBCWM employees, since 1996, who were classified by CIBC and CIBCWM as Level 6 or higher, who held job titles or business titles that included the words "analyst" or "investment advisor" (otherwise known as financial advisor)." The plaintiffs asserted that this group of employees was incorrectly classified as ineligible for overtime, and that it could be determined, on a job-by-job basis, whether particular employees are legally entitled to overtime and therefore whether they have been misclassified.

The Court's Decision:

In denying certification of the proposed class action, Justice Strathy examined the elements of the certification test, which he summarized as "a cause of action, shared by an identifiable class, from which common issues arise, that can be resolved in a fair, efficient, and manageable way that will advance the proceeding and achieve access to justice, judicial economy, and the modification of behaviour of wrongdoers".

Cause of Action

The plaintiffs argued, and CIBC did not contest, that the proposed causes of action were (a) breach of express or implied terms of contract; (b) unjust enrichment; and (c) alternatively, breach of the ESA and the CLC. Given the concession of CIBC on this issue, Justice Strathy was satisfied that the plaintiffs set out an adequate cause of action.

Identifiable Class

This is the first section of the certification test which was problematic for the plaintiffs...