On April 27, 2012, Justice Strathy released his decision denying certification in Brown v. Canadian Imperial Bank of Commerce and CIBC World Markets, the most recent overtime class action considered by the Ontario Superior Court. Justice Strathy’s decision was released while three other overtime class action certification decisions are under reserve by the Ontario Court of Appeal (Fresco v. Canadian Imperial Bank of Commerce; Fulawka v. Bank of Nova Scotia; and McCracken v. Canadian National Railway Co.).
The representative plaintiffs in this case, a former “Analyst” at CIBC and a former “Investment Advisor” at CIBC World Markets sought to bring a class proceeding on behalf of thousands of current and former CIBC and CIBC World Market employees with the same titles. The plaintiffs alleged that CIBC and CIBC World Markets had wrongly classified them as “managers” and thus as ineligible for overtime compensation.
In his decision, Justice Strathy noted that the only thing the class members had in common was their job titles. He went on to find that the key issue of liability in this case, the class members’ eligibility for overtime, was dependent on the analysis of each individual employee’s actual job duties and responsibilities. As a result, Justice Strathy held that the other proposed common issues were “inconsequential” without a finding on eligibility. Furthermore, Justice Strathy rejected the plaintiffs’ proposed methodology for resolving the eligibility issue and refused the plaintiffs’ proposal of using statistical sampling evidence to determine the defendants’ liability. Justice Strathy accepted the defendants’ submission regarding the shortcomings of the plaintiffs’ litigation plan.
Further information can be found the Financial Post’s website.