Ontario Superior Court Refuses to Certify Proposed Misclassification Overtime Class Action

by Bennett Jones LLP
Contact

Justice George Strathy of the Ontario Superior Court has refused to certify a proposed class action commenced against the Canadian Imperial Bank of Commerce and CIBC World Markets on behalf of a class of employees alleging that their jobs were misclassified in a way that wrongfully defeated their entitlement to be paid overtime.

The decision, Brown v. Canadian Imperial Bank of Commerce, follows two other relatively recent overtime cases in the financial services sector – Fulawka v. Bank of Nova Scotia and Fresco v. Canadian Imperial Bank of Commerce. Certification was granted in Fulawaka but denied in Fresco. Appeals in respect of both decisions, which were off-the-clock overtime cases, are currently under reserve by the Ontario Court of Appeal. Another recent misclassification overtime case in the transportation sector, McCracken v. Canadian National Railway, is also under reserve at the Ontario Court of Appeal.

In Brown, the plaintiffs alleged a number of causes of action, including breach of contract, unjust enrichment and violations of the Employment Standards Act, 2000. On behalf of the proposed class of analysts and investment advisors, the representative plaintiffs sought $350 million in general damages on the basis that employees of CIBC above certain classification levels or with specific job descriptions were deemed ineligible for overtime pay. This group specifically included Analysts and Investment Advisors whom, among others, the plaintiffs alleged had been misclassified.

Issuing his decision in the midst of this uncertain legal landscape in Ontario, Justice Strathy reiterated the sentiment he had earlier expressed in Fulawka, stating that misclassification cases are appropriate for certification (and perhaps more suitable than off-the-clock cases) as a result of the commonality of employment functions involved and the existence of common treatment by the employer.

Notwithstanding the comments about the general suitability of misclassification cases for certification, Justice Strathy declined to certify the action, finding that the question of whether an individual had management responsibilities that “troubled the court in Fresco and McCracken is an insurmountable stumbling block in this case for certification”. Using a series of baseball analogies, Justice Strathy attacked the plaintiffs’ purported common issues as being unworkable, broad, and lacking in commonality. Given the evidence presented with respect to CIBC’s complex job classification system, Justice Strathy noted it was unclear how a judge could ever make a fair determination as to whether a position had managerial duties, the critical issue of fact required for a determination of eligibility for overtime on a class-wide basis.

Ultimately, Justice Strathy concluded that the proposed class members had little in common except for their job titles. In order to advance a misclassification overtime claim, plaintiffs must, at a minimum, have a class with identical or similar job duties. The decision notes that the plaintiffs, apparently alive to this issue, had conceded in submissions that the determination of whether each particular position had managerial responsibilities might have to be made after the common issues trial.

Justice Strathy also rejected the proposed use of statistical evidence to either circumvent the issue of commonality or to provide a workable methodology to resolve key factual issues. In doing so, he reiterated what he described as a well-established principle of law in Ontario. Specifically, he noted that the Class Proceedings Act cannot interfere with the substantive rights of a defendant to have liability established through evidence and not statistical probability. While statistical evidence may be admissible and appropriate in many circumstances, it could not be used to resolve a lack of commonality in the context of overtime class actions.

The Impact of Brown

Although certification was denied on the facts of this case, Justice Strathy’s decision continues to leave the door open for future misclassification cases. The viability of these and other overtime class actions will be more clearly determined once the Court of Appeal issues its reasons in Fulawka, McCracken and Fresco.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Bennett Jones LLP | Attorney Advertising

Written by:

Bennett Jones LLP
Contact
more
less

Bennett Jones LLP on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Privacy Policy (Updated: October 8, 2015):
hide

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.

Security

JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.