Lexpert magazine features articles and columns on developments in legal practice management, deals and lawsuits of interest in Canada, the law and business issues of interest to legal professionals and businesses that purchase legal services.
Issue link: https://digital.carswellmedia.com/i/1484268
www.lexpert.ca 27 IN 2007, a representative plaintiff began a class action against the Canadian Imperial Bank of Commerce (CIBC) on behalf of 31,000 customer service employees who worked for the bank between 1993 and 2009. e action alleged that two of the bank's poli- cies enabled it to have its employees work overtime hours without appropriate compen- sation in breach of the Canada Labour Code. e bank claimed that its policies aimed to stop unnecessary overtime. In 2012, the Ontario Court of Appeal certi- fied eight common issues. Both sides brought summary judgment motions on the merits, and the motion judge released three decisions. On liability, the court granted summary judg- ment to the representative plaintiff. On dam- ages, it certified aggregate damages as a com- mon issue and le the merits of the proposed methodology for deciding the class members' individual damages entitlements for assess- ment at a later stage. On limitations, the court dismissed the bank's summary judgment mo- under the code and its regulations. e court also found the judge made no errors in cer- tifying the aggregate damages issue, and the test for certifying this issue was met. e motion judge, in determining wheth- er the bank had a class-wide limitations de- fence, correctly required the bank to prove that discoverability could be resolved on a class-wide basis, found the court. e court also found no errors in the refusal to address the purported extra-provincial reach of s. 28 of Ontario's Class Proceedings Act. e Court of Appeal for Ontario dis- missed the bank's appeals on liability, dam- ages, and limitations. With the rise of the gig economy, em- ployment-related class litigation concerning overtime and misclassification of employees under the Employment Standards Act is emerging in multiple industries. Examples include Heller v. Uber Technologies Inc. and the class action brought against Skip the Dishes by couriers in Manitoba. Employment overtime and misclassifica- tion cases "are an area that businesses really need to be cognizant of," says Jonathan Lisus, a litigator at Lax O'Sullivan Lisus Gottlieb LLP. "Especially these businesses who operate with so-called dependent or independent contrac- tors, who may very well be employees." "e interpretation of the Code affects businesses across Canada," says Meehan, "making the court's decision significant for Canadian employees and employers alike." FRESCO V. CANADIAN IMPERIAL BANK OF COMMERCE, 2022 ONCA 115 • CIBC > Torys LLP, Hicks Morley Hamilton Stewart Storie LLP > Linda Plumpton, Sarah Whitmore, Ryan Lax, Lara Guest, Henry Federer, John Field, Lauri Reesor, and Elisha Jamieson-Davies • Dara Fresco > Roy O'Connor LLP, Sotos LLP, Goldblatt Partners LLP > David F. O'Connor, J. Adam Dewar, Louis Sokolov, Jean-Marc Leclerc, Steven Barrett, Peter Engelmann, Louis Century, and Jody Brown CLIENTS > FIRMS > LAWYERS tion seeking a class-wide limitations order and le the bank's limitation defences for determi- nation at the individual hearing stage. e Court of Appeal found the bank's overtime policies breached s. 174 of the La- bour Code, as the motion judge properly in- terpreted. Under s. 174, an employee who is "required or permitted" to work more than the standard hours must be paid time-and-a- half. Fresco v. CIBC addressed the meaning of "required or permitted" under the code, says Eugene Meehan of Supreme Advocacy LLP. As the motion judge had found, the Court of Appeal said "permitted" should mean "allowed to work or is not prevented from working in excess of the standard hours of work," and that where that is the case, the employee is entitled to no less than time-and- a-half, says Meehan. e court agreed with the motion judge that the bank's system-wide overtime policies and record-keeping practices were institu- tional impediments that breached its duties