Top 5 Civil Appeals From The Court Of Appeal (November 2014)

1. Brown v. Canadian Imperial Bank of Commerce, 2014 ONCA 677 (Doherty, Epstein and Benotto JJ.A.), October 6, 2014 2. Pankerichan v. Djokic, 2014 ONCA 709 (Doherty, Lauwers and Strathy JJ.A.), October 17, 2014 3. Mader v. South Easthope Mutual Insurance Company, 2014 ONCA 714 (Weiler, Hourigan and Pardu JJ.A.), October 21, 2014 4. Weidelich v. de Koning, 2014 ONCA 736 (Doherty, Laskin and Epstein JJ.A.), October 24, 2014 5. Susin v. Susin, 2014 ONCA 733 (Hoy A.C.J.O., Feldman and Blair JJ.A.), October 29, 2014 1. Brown v. Canadian Imperial Bank of Commerce, 2014 ONCA 677 (Doherty, Epstein and Benotto JJ.A.), October 6, 2014

   This appeal is another case in which plaintiffs sought to certify a class action claiming overtime pay.

   In June 2012, the Court of Appeal released decisions in Fulawka v. Bank of Nova Scotia, 2012 ONCA 443, Fresco v. Canadian Imperial Bank of Commerce, 2012 ONCA 444, and McCracken v. Canadian National Railway, 2012 ONCA 445, a trilogy of class action cases against federally-regulated employers for unpaid overtime pay. In McCracken, the Court allowed Canadian National Railway's appeal from the certification order due to an absence of "a core of commonality". In this case the Court of Appeal was required to revisit its decision in McCraken, and the notion of commonality, with the overtime claim brought against CIBC.

   The plaintiffs proposed a class definition consisting of employees who had worked for CIBC after 1996 and who held the job titles of Analyst, Investment Advisor, or Associate Investment Advisor. The motion judge declined to certify the proceeding under s. 5 of the Class Proceedings Act, 1992, S.O. 1992, c. 6, ("CPA"), holding that eligibility for overtime pay under the applicable statutory regime or CIBC's overtime policy could not be determined on a common basis for all members of the proposed class.

   The plaintiffs launched an appeal to the Divisional Court and also narrowed the proposed class to exclude those Analysts, Investments Advisors and Associate Investment Advisors who had managerial responsibilities. Nonetheless, the Divisional Court, relying on McCracken, held that the determination of eligibility for overtime pay remained an employee-specific inquiry that could not be resolved as a common issue. The Divisional Court also agreed with the motion judge that none of the other proposed common issues made the claims suitable for certification.

   The Court of Appeal granted the plaintiffs leave to appeal from the order of the Divisional Court.

   The appellants submitted that both the motion judge and the Divisional Court erred in holding that eligibility for overtime pay was not a common issue. They argued that the lower courts misapprehended the evidence and failed to apply the legal principles governing common issue assessment. They further argued that, in any event, there were other common issues that warranted certification of the class action.

   Writing for the Court of Appeal, Doherty J.A. agreed with the lower courts that the outcome of the certification motion turned on s. 5(1)(c) of the CPA, which stipulates that a class proceeding can only be certified if the claims raise common issues, and, specifically, on whether eligibility for overtime pay could be certified as a common issue.

   As Winkler C.J.O. explained in McCracken, the question of commonality is determined on the basis of the evidence led on the certification motion and depends on whether the similarity of employment duties performed by the class members provides "the fundamental element of commonality". Commonality exists only where the evidence establishes that the responsibilities of all of the employees in the proposed class are sufficiently similar that the classification of those employees as eligible or ineligible for overtime pay could be made for the class as a whole, without regard to the specific circumstances of individual employees.

   Emphasizing that the common issues inquiry is evidence-driven, Doherty J.A. observed that the evidence led by the CIBC was similar to that adduced by CN in McCracken. The CIBC's evidence demonstrated a wide range in the duties and responsibilities of employees in the proposed class, revealing the same absence of "core of commonality" which was fatal to the plaintiffs' case in McCracken. Doherty J.A. concluded that neither the motion judge nor the Divisional Court misapprehended the evidence. They also did not err in determining whether eligibility for overtime pay could be certified as a common issue. Both courts' analysis was consistent with that in McCracken.

   Doherty J.A. further held that Rosen v. BMO Nesbitt Burns Inc., 2013 ONSC 2144, leave to appeal to Div. Ct. refused, [2013] O.J. No. 6258 (S.C.J.), a certification motion decided after the Divisional Court's ruling, in which the motion judge certified an overtime pay claim, was of no assistance to the appellants. Recalling the evidence-based nature of the commonality inquiry, he noted that the outcome of the Rosen motion turned on significant factual differences from the case at bar.

   Doherty J.A. rejected the appellants' submission that even if eligibility for overtime pay was not deemed to be a common issue, the lower courts erred in failing to certify any of the other proposed common issues. Doherty J.A. recalled that in McCracken, after deciding that eligibility for overtime pay of the proposed class members was not a common issue, the motion judge held that the "minimum requirements" to be a managerial employee could be resolved as a common issue. Winkler C.J.O. found that the motion judge erred in this conclusion, noting that without a common issues trial that would resolve the "threshold misclassification issue", determining the issue of the minimum requirements for managerial employment at CN would not advance the proceedings in any meaningful way. There would still be a need for substantial individual inquiries. Doherty J.A. agreed that in the case at bar, without a common issue of eligibility for overtime pay, certification based on proposed common issues involving the terms of the employment contract that relate to overtime pay would be a case of "the tail wagging the dog".

2. Pankerichan v. Djokic, 2014 ONCA 709 (Doherty, Lauwers and Strathy...