Law Times

Law Times • November 15, 2010 FOCUS PAGE 13 Plaintiff appeals Fresco overtime ruling Certification decision went too far in weighing evidence: dissenting judge BY ROBERT TODD Law Times nadian Imperial Bank of Com- merce has been denied by a pair of courts, but plaintiff 's counsel are pressing on with a further ap- peal to Ontario's top court. David O'Connor of Roy El- A liott O'Connor LLP, who rep- resents proposed representative plaintiff Dara Fresco along with lawyers from Sack Gold- blatt Mitchell LLP, believes the litigation in Fresco v. Canadian Imperial Bank of Commerce could have a considerable im- pact on the Canadian work- force and has fi led an applica- tion for leave to appeal to the Ontario Court of Appeal. "Th e issues at play here will likely aff ect many employers and employees across the coun- try," says O'Connor. "Th e abil- ity to advance class actions for compensation for employees is important." Th e proposed action seeks compensation for unpaid over- time on behalf of about 31,000 tellers and customer service representatives employed by CIBC. Th e defeated certifi ca- tion motion went to the Di- visional Court on appeal from the June 2009 decision of Su- perior Court Justice Joan Lax, who dismissed the motion be- cause it lacked the element of commonality. Th e judge also issued a $525,000 costs order against the plaintiff . Th at's the highest amount awarded so far to a successful defendant on a certifi cation motion. Th e Divisional Court ma- jority decision of justices Kath- erine Swinton and Lee Ferrier backed Lax's ruling. Th e major- ity found no error in principle or fact in the motion judge's determination that the plaintiff had failed to establish the com- mon issues criterion. "Th e motion judge reviewed the extensive evidence provid- ed by the appellant, as well as the respondent, and concluded that there was no evidentiary foundation for any common issues that would advance the litigation," Swinton wrote. "Most importantly, she con- cluded that the appellant failed to show that there was any evi- dence of a systemic practice of unpaid overtime at the bank, and any other issues that might be considered common issues would not signifi cantly advance the litigation. Her conclusions are deserving of deference." Th e majority also agreed that the plaintiff hadn't shown that CIBC's records of employ- ee hours violated the Canada Labour Code. Further, Swin- ton said information on each class member's records would be necessary to establish that argument. "In any event, even if the ap- pellant were able to show that www.lawtimesnews.com certifi cation motion for a proposed overtime class action against the Ca- action, but simply to deter- mine whether the constitutive elements of a cause of action have been suffi ciently plead- ed," Sachs wrote. "Th e motion judge is only to refuse to certify if there is a radical defect in the plaintiff 's claim or it is plain and obvious that it cannot pos- sibly succeed." Sachs also found that the The Fresco appeal will largely follow the dissenting Divisional Court judge's opinion, says David O'Connor. the bank's practice of record keeping was not in compliance with the code and regulations, I agree with the motion judge that this would not materially advance the litigation," Swin- ton wrote. "It would still be necessary to inquire into the accuracy of the records respect- ing each class member in order to determine whether that in- dividual had worked overtime without compensation." Th e majority also declined to interfere with Lax's discre- tion to award costs and said the plaintiff should have known such an order was possible. "Th e motion judge was not making a punitive costs award," Swinton noted. "It is clear that she based her decision on the correct principles for the award of costs. She referred to the bank's concerns for its repu- tation as an explanation why the bank responded as it did and to show the importance of the issues to the parties (a rel- evant consideration under rule 57.01(1)(d))." However, Justice Harriet Sachs issued a dissenting opin- ion in which she found the motion judge had made errors and that the action should be certifi ed. Sachs said the "plain and obvious" threshold on CIBC's overtime policy hadn't been met and noted "there are argu- ments to be made on both sides of the question." But Sachs said the motion judge weighed the arguments and simply ac- cepted one side's claims over the other, which went beyond her mandate under the Class Proceedings Act. "Th at mandate is not to inquire into the merits of the motion judge inadequately ad- dressed evidence supporting Fresco's arguments that a system- ic problem existed with overtime compensation at CIBC. "Th is evidence was, in my view, suffi cient to satisfy the low evidentiary burden that the ap- pellant has on a motion such as this," Sachs wrote. "Further- more, in dealing with the evi- dence as to the common issues, the motion judge essentially ac- cepted, on a contested record, the respondent's characteriza- tion of that evidence. To do so necessarily involved weighing evidence and making fi ndings of credibility, something that was not properly part of her function Let us open right door for you the We specialize in Employment and Labour Law in Canada Kuretzky Vassos Henderson is a leading employment and labour law fi rm situated in the heart of Toronto. We are comprised of ten lawyers, all of whom specialize in the area of employment and labour law. We act for many prominent public and private sector employers as well as for individuals. Kuretzky Vassos Henderson LLP Our work includes extensive experience in the areas of: Wrongful dismissal • Human rights • Labour relations/Labour law/Collective barganing • Workplace health and safety • Sexual harassment • Employment standards • Employment contracts • Canada Labour Code • Class actions • Mediation/arbitration/ADR www.kuretzkyvassos.com • 416.865.0504 Kuretzky_LT_Nov15_10.indd 1 11/9/10 8:58:36 AM at the certifi cation stage." O'Connor says his client's appeal is in line with Sachs' fi ndings. "Her approach picked up largely on many of our submis- sions to the Divisional Court ap- pellate panel," says O'Connor. "In our view, her decision is the correct one, and we will put that to the Court of Appeal." O'Connor expects to re- ceive the court's decision on the leave to appeal application by the end of the year. Patricia Jackson of To- rys LLP, who is representing CIBC in the matter, declined to comment given the pend- ing appeal. LT

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• For The Defence
• End Of An Era
• Focus On Labour and Employment Law