Ontario Court Denies Certification of Overtime Eligibility Class Action

On April 27, 2012, Justice G.R. Strathy of the Ontario Superior Court of Justice denied the plaintiffs’ motion for certification in the most recent proposed overtime class action to be considered for certification by that Court, Brown v. Canadian Imperial Bank of Commerce and CIBC World Markets Inc.1

Justice Strathy released his decision while three other overtime class action cases are currently 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.


The proposed representative plaintiffs, Michael Brown and Brian Singer, were former employees of CIBC and CIBC World Markets respectively. Mr. Brown worked as an "Analyst IV" at CIBC, and Mr. Singer worked as an "Investment Advisor" at CIBC World Markets. Together they sought to bring a class proceeding on behalf of thousands of current and former CIBC and CIBC World Markets employees who held job titles or business titles that included the words "Analyst" or "Investment Advisor". The plaintiffs’ fundamental complaint was that they and the other members of the proposed class had been improperly classified by CIBC and CIBC World Markets as “managers” and thus as ineligible for overtime compensation.

The proposed class members’ eligibility for overtime is regulated under the Canada Labour Code (for employees of federally regulated CIBC) and the Employment Standards Act (for employees of provincially regulated CIBC World Markets). Under both statutes, managers are generally ineligible for overtime compensation.

The Decision

In denying certification, Justice Strathy held that the key issue in this case, the class members’ eligibility for overtime compensation, turned on an individual fact-based analysis of whether or not each member of the proposed class had managerial responsibilities. This issue proved to be an “insurmountable stumbling block” that could not be resolved on a class-wide basis. In this regard, he made the following important determinations:

  • Whether an employee exercises supervisory or managerial authority involves an examination of "what the employee actually does, how they do it, and how much independence and authority they exercise in the environment in which they work";

  • The evidence before the Court demonstrated that the proposed class lacked commonality; job duties, responsibilities and managerial authority varied widely among Analysts and Investment Advisors, meaning that the class members’ jobs had "little in common but their names";

  • There was no workable methodology for resolving issues of eligibility, and statistical evidence could not be used to determine liability; and

  • With respect to the Investment Advisor claim, a class proceeding was not the preferable procedure for the resolution of these claims; the evidence demonstrated that the proposed representative plaintiff was the only Investment Advisor to complain and the Investment Advisor claim did not raise access to justice issues.

Finding that the central issue of liability was not capable of being resolved as a class proceeding, Justice Strathy refused to certify the action. He concluded that other common issues proposed by the plaintiff were "inconsequential" and observed that class actions were not designed to permit "a free-wheeling investigation" into how a defendant conducts its business.

The Brown decision is an important development in the area of overtime class actions. Courts in prior overtime class action decisions have commented that misclassification cases may be more amenable to certification. In Brown, however, Justice Strathy found that the class members held a wide array of positions, duties and job descriptions. The lack of "homogeneity of responsibilities" among the class members and the individual determinations that would be involved in resolving their claims meant that the action would not work as a class proceeding.


1 The authors are counsel to the Canadian Imperial Bank of Commerce and CIBC World Markets in the Brown action.

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