CIBC Overtime Pay Class Action Dismissed

The Ontario Superior Court of Justice has dismissed a class action complaint filed against the CIBC for alleged, systemic non-payment of overtime.  Here is the decision.
The case did not deal with the actual merits of the case–that is, CIBC may still be guilty of violating the Canada Labour Code.  This case only dealt with the issue of whether a large group of CIBC employees could join together in one lawsuit to challenge a CIBC overtime policy they allege is illegal.  The policy reasons for permitting “class actions” are related to access to justice and administration of the courts.  If the same issue is in dispute, it makes sense to allow that issue to be litigated in a single court action, rather than say 500 individual lawsuits.  By allowing employees to join together to challenge an illegal employer policy, a class action makes suing their employer a more realistic option than hiring a lawyer individually to take on the employer.  In unionized environments, unions can usually file a group or policy grievance on behalf of an entire bargaining unit.  However that option is not available to non-union employees, such as CIBC tellers.
However, there are strict criteria that need to be satisfied to get court approval (or certification) to bring a class action.  They are described in Ontario in Section 5 of the Class Proceedings Act.  Section 5(1)(c) requires that “the claims or defences of the class members raise common issues”. The Judge  ruled that the claims of the individual CIBC employees were too  factually  distinct and that there was insufficient evidence of systemic unlawful conduct by the CIBC for a class action to be certified.  Interestingly, Professor Judy Fudge of U. Victoria provided an expert report on the prevalence of unpaid overtime in Federally regulated industries.  But the judge found that her report did not disclose any particular systemic problem at CIBC.
The story behind the story was described last year in a Toronto Life story.  There’s also a very interesting video story about the case and the lead plaintiff, Dara Fresco, by the CBC available for viewing here.  There is also a plaintiff website that gives further information.  This decision may foreshadow the outcome in other pending similar actions, including one against Scotia Bank.  The plaintiff in the CIBC case is contemplating an appeal.