Author: Robert Bell
In Brown v. Canadian Imperial Bank of Commerce, Justice Strathy of the Ontario Superior Court of Justice denied a motion for certification in the most recent proposed overtime class action.
Readers will recall that there have been two other relatively recent overtime class actions in the financial sector – Fulawka v. Bank of Nova Scotia and Fresco v. Canadian Imperial Bank of Commerce. Certification was granted in Fulawka, but denied in Fresco. Both cases are under reserve at the Court of Appeal.
In Brown, the plaintiffs alleged that their jobs had been misclassified in a way that wrongfully defeated their entitlement to overtime.
Justice Strathy held that, generally, misclassification cases are appropriate for class certification. However, in denying the certification, Justice Strathy determined that a key issue in this case-entitlement to overtime compensation-turned on an individual fact-based analysis of whether each individual in the proposed class had managerial responsibilities. This issue was an “insurmountable stumbling block” for the class certification as the evidence suggested that the proposed class members had little in common except job titles.
Significantly, Justice Strathy rejected the use of statistical evidence to circumvent the issue of commonality. A defendant, Justice Strathy held, has a substantive right to have liability established through evidence and not statistical probability. Further, class actions were not designed to permit a “free-wheeling investigation” into how a defendant conducts its business.
Brown v. CIBC muddies already murky legal waters. While certification was denied on the facts of this case, based on Justice Strathy’s reasoning, certification could be granted in a different case in which there was greater commonality among class members. Hopefully, the Court of Appeal’s decisions in Fulawka and in Fresco will provide some much needed clarification and guidance.