Law Times

PAGE 10 FOCUS sepTember 7, 2009 • Law Times Workers face judicial wall in overtime lawsuits BY JULIUS MELNITZER For Law Times ployers are off to a great start. But the question lingering in the wake of Ontario Superior T he fi rst polls are in on wage and overtime class actions, and so far, em- Court Justice Joan Lax's refusal to certify the class in Fresco v. Can- adian Imperial Bank of Commerce is: How eff ectively will the deci- sion stem the onslaught of wage and overtime class actions? Lax ruled certifi cation could not be granted in the suit brought by CIBC employee Dara Fresco because it was not the preferable procedure for resolving the claims for unpaid overtime. "In my opinion, there is no asserted common issue capable of being determined on a class- wide basis that would suffi ciently advance this litigation to justify certifi cation," she wrote. LegalNewswire FREE From the publisher of Canadian Lawyer and Law Times SUBSCRIPTION yp Select from InHouse Real Estate Law Family Law Litigation Estates, wills & trusts Special edition e-newsletters dedicated to your practice areas of interest! Sign up today online at canadianlawyermag.com TARGETED E-MAIL ADVERTISING OPPORTUNITIES A limited number of high-impact advertising positions are available in each special edition newsletter, reaching a highly targeted group of legal professionals Excellent exposure for your fi rm, product, service or event. Contact us today for more information and rates. LAW FIRMS: Karen Lorimer, Group Publisher 905-713-4339 • klorimer@clbmedia.ca Kathy Liotta, Account Manager 905-713-4340 • kliotta@clbmedia.ca LEGAL SUPPLIERS: Kimberlee Pascoe, Account Manager 905-713-4342 • kpascoe@clbmedia.ca Fresco claimed she and other class members regularly worked overtime and were allowed to do so by the bank in violation of the Canada Labour Code. But Lax ruled CIBC's overtime policies were not illegal despite the fact the pleadings disclosed a valid cause of action. (Th is conclusion, of course, leaves the door open to individual claims.) Mort Mitchnick, of Borden Ladner Gervais LLP, says the mo- tion for certifi cation failed largely for lack of evidence and an ad- equate record. "Th e case started with some very serious allegations about being forced to work extra hours, but Lax found no support for that in the evidence," he says. "And each of the nine affi ants who were cross-examined about their testimony regarding massive systemic wrongdoing came up with diff erent grounds for their assertions." In other words, the evidence was less than impressive. "I wouldn't be surprised if the judge simply concluded that the testimony didn't measure up to the pleadings in any meaningful way," says Mitchnick. "So while the ruling ups the comfort level for employers, it doesn't neces- sarily spell the death knell for this type of case." Although there are three out- standing overtime class actions pending in Canada — Fresco; Fulawka v. Th e Bank of Nova Sco- tia; and McCracken v. Canadian National Railway Co. — the fact accounting giants KPMG and PricewaterhouseCoopers LLP quickly and eff ectively settled similar cases against them bears some witness to the potential numbers of defendants seated in LT_newswire09.indd 1 8/20/09 10:15:58 AM When class members have dif- ferent assertions about the wrongdoing, certification won't succeed, says Mort Mitchnick. the bleachers waiting for the out- come of what surely are test runs. "Th ere is signifi cant risk out there because many employers are not in full compliance with provincial labour standards. If the courts ultimately certify one of these cases, you're going to see a lot of voluntary settle- ments and also a lot of litiga- tion," says Jeff Goodman of Heenan Blaikie LLP. Th ere are two main genres of overtime cases. Th e proceedings against the banks, for example, are "off -the-clock" cases. "Th e defendants don't really dispute the eligibility for overtime, but off er various defences such as that no claims were made," says Goodman. "In reply, the plain- tiff s are saying, in part, that there was systemic pressure against them not to make claims." But CNR involves supervi- Negotiation: The Art of Mutual Gains Bargaining Second Edition Achieve mutual gains bargaining success in any negotiation setting sory personnel and eligibility is an issue. "Th ere's no real dispute that the class in CNR worked overtime," says Louis Sokolov of Sack Goldblatt Mitchell LLP, co- lead counsel in all three overtime cases. "What we allege is that class members were misclassifi ed as ex- empt from the provisions of the Canada Labour Code." Still, it may be diffi cult to launch overtime class actions. 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Th en there's the economic For a 30-day, no-risk evaluation call: 1.800.565.6967 Canada Law Book is a Division of The Cartwright Group Ltd. Prices subject to change without notice, to applicable taxes and shipping & handling. www.lawtimesnews.com CORRY_Mutual Gains Bargaining (LT 1-3x4).indd 1 9/2/09 11:00:17 AM LT0907 downturn. "Th e current climate is a real check on claims of this kind, be- cause most people aren't feeling particularly secure at work now, and leading a class action against your employer isn't likely to count as career-enhancing," he says. But for the cases that do arise, a lack of commonality will con- tinue to be the prime legal argu- ment against certifi cation. Th e impact of CIBC will be that most of overtime lawsuits will end up being dealt with on an individual basis because they tend to involve individual contracts of employ- ment or circumstance. "Th ere's good reasoning about individual damage claims and unique circumstances in CIBC, and it's sure to be picked up by the defence in other cases," says George Waggott of Lang Michener LLP. LT David Corry and Courtenay Mercier

• Cover
• Ottawa Shutdown
• Access to Justice
• Focus On Class Actions