The much-awaited appeal decision in Fresco v. CIBC was released in September. The appeal court declined to interfere with the original decision of Justice Lax. She had denied Dara Fresco’s bid to bring a class action against CIBC for unpaid overtime.
This is one of three high-profile cases we have been following, in which employees are seeking to bring class actions for millions of dollars in unpaid overtime. In any class action the one bringing the suit must show that there are common issues, the resolution of which will advance the litigation for everyone. It has become clear that the “common issues challenge” is very much alive when it comes to overtime claims.
The first two cases, Fresco v. CIBC and Fulawka v. BNS, are rather similar. They involve non-managerial bank employees who allege they weren’t paid for overtime worked, contrary to the Canada Labour Code. Fresco and Fulawka both focus on the legality of overtime policies that require preapproval of overtime hours as a condition of payment. The third case, McCracken v. CNR, is a misclassification case.
In June 2009, Justice Lax dismissed Fresco’s motion for certification as a class action. She ruled there were insufficient common issues. In her view the claims of the class members were individual in nature. They would require an assessment of each employee’s particular circumstances, thus defeating the purpose of a class action. Interestingly, Lax found that the preapproval requirement in the overtime policy was lawful. The majority of the appeal court, the Ontario Divisional Court, agreed.
Following Lax’s decision in Fresco but before the appeal decision, Mr. Justice Strathy issued a conflicting decision and certified Fulawka to proceed as a class action. Appeals are in progress in Fulawka and McCracken. And now Fresco is also seeking permission to further appeal most of the Divisional Court’s decision. Stay tuned . . . we’ll keep you posted.