Fresco v. Canadian Imperial Bank of Commerce, 2010 ONSC 4724

• Judge: Ferrier, Swinton and Sachs, JJ.
• Court: Superior Court of Justice of Ontario (Canada)
• Case Date: September 10, 2010
• Jurisdiction: Ontario
• Citations: 2010 ONSC 4724;(2010), 267 O.A.C. 317 (DC)

Fresco v. CIBC (2010), 267 O.A.C. 317 (DC)

MLB headnote and full text

Temp. Cite: [2010] O.A.C. TBEd. SE.026

Dara Fresco (plaintiff/appellant) v. Canadian Imperial Bank of Commerce (defendant/respondent)

(361/09; 2010 ONSC 4724)

Indexed As: Fresco v. Canadian Imperial Bank of Commerce

Court of Ontario

Superior Court of Justice

Divisional Court

Ferrier, Swinton and Sachs, JJ.

September 10, 2010.

Summary:

The proposed representative plaintiff applied under s. 5 of the Class Proceedings Act for certification of a class action on behalf of 31,000 bank tellers and customer service representatives who worked in 1,000 bank branches across Canada. The claim sought compensation for unpaid overtime work on the basis that the bank's overtime policy violated the bank's contractual obligations and the provisions of the Canada Labour Code. The plaintiff claimed $600 million in general, punitive, aggravated and exemplary damages.

The Ontario Superior Court, in a judgment reported [2009] O.T.C. Uned. E32, denied certification on the ground that although a class action would be the preferable procedure, the action lacked the essential element of commonality of issues. The court held that it was "plain and obvious" that the bank's overtime policy complied with the Code. In a subsequent decision, reported at [2010] O.T.C. Uned. 1036, the court awarded the bank $525,000 in costs, inclusive of fees, disbursements and GST. The plaintiff appealed the certification decision and the costs order.

The Ontario Divisional Court, Sachs, J., dissenting, dismissed the appeal.

Master and Servant - Topic 8544

Employment and labour standards - Liability of employer - Overtime pay - The Canada Labour Code provided that employers who "required or permitted" employees to work overtime had to pay them at least time and one-half for their overtime hours - An employer's overtime policy required that employees obtain written pre-approval before working any overtime hours - Absent pre-approval, the employee was not entitled to overtime pay unless he or she established extenuating circumstances for not obtaining advance approval and approval was sought as soon as possible afterwards - The Ontario Divisional Court held that the trial judge did not err in finding that it was "plain and obvious" that the overtime policy did not violate the Canada Labour Code -The court stated that "an employer has the fundamental right to control its business, including employee schedules, hours of work and overtime hours, providing it complies with the Code ... A pre-approval requirement is consistent with this right" - The trial judge also did not err in finding that giving employees the option of taking time off in lieu of overtime pay did not violate the Code - See paragraphs 38 to 61.

Master and Servant - Topic 8544

Employment and labour standards - Liability of employer - Overtime pay - Section 166 of the Canada Labour Code defined overtime as "hours of work in excess of standard hours of work" - The Ontario Divisional Court stated that "[s. 166] does not require the inclusion of breaks or other non-working time in the calculation of hours worked for overtime calculation" - See paragraph 67.

Practice - Topic 209.3

Persons who can sue and be sued - Individuals and corporations - Status or standing - Class or representative actions - Certification - Considerations (incl. when class action appropriate) - The proposed representative plaintiff applied under s. 5 of the Class Proceedings Act for certification of a class action on behalf of 31,000 bank tellers and customer service representatives who worked in 1,000 bank branches across Canada - The claim sought compensation for unpaid overtime work on the basis that the bank's overtime policy violated the bank's contractual obligations and the provisions of the Canada Labour Code - The plaintiff claimed $600 million in general, punitive, aggravated and exemplary damages - The trial judge denied certification on the ground that although a class action would be the preferable procedure, the action lacked the essential element of commonality of issues where it was "plain and obvious" that the bank's overtime policy (requiring pre-approval for all overtime absent extenuating circumstances) did not violate the Code - There were no common issues that would significantly advance the litigation by avoiding duplication of fact finding or legal analysis - The Ontario Divisional Court dismissed the plaintiff's appeal - The class members basically claimed that the nature of the work and the expectations of managers caused them to work overtime without proper compensation - The alleged breaches of the Code did not advance those claims - There was no evidence of any common act or omission by the bank that caused or contributed to a systemic failure to properly compensate employees for overtime - The evidence of the 10 class members that filed affidavits did not show a common experience with respect to unpaid overtime - Conversely, their affidavits demonstrated that the alleged non-compensation was attributable to their individual circumstances and not systemic conditions - See paragraphs 69 to 132.

Practice - Topic 210.3

Persons who can sue and be sued - Individuals and corporations - Status or standing - Class or representative actions - Costs - The proposed representative plaintiff applied under s. 5 of the Class Proceedings Act for certification of a class action on behalf of 31,000 bank tellers and customer service representatives who worked in 1,000 bank branches across Canada - The claim sought compensation for unpaid overtime work on the basis that the bank's overtime policy violated the bank's contractual obligations and the provisions of the Canada Labour Code - The plaintiff claimed $600 million in general, punitive, aggravated and exemplary damages - The trial judge denied certification on the ground that the proposed class action lacked the essential element of commonality of issues - It was "plain and obvious" that the bank's overtime policy complied with the Code - The bank was awarded $525,000 in costs, inclusive of fees, disbursements and GST - The bank had incurred $4 million in legal fees and claimed costs of $750,000 - The Ontario Divisional Court dismissed the plaintiff's appeal from the costs award - A discretionary costs award could not be interfered with unless there was an error of principle or the award was plainly wrong - There was no basis for interfering with the judge's application of the correct principles - The court rejected the submission that, inter alia, the judge failed to properly consider the public interest aspect of the litigation or the "chilling effect" of the award on plaintiffs - In fact, the judge did reduce the award to reflect the public interest - See paragraphs 141 to 159.

Practice - Topic 7053.1

Costs - Party and party costs - Entitlement to party and party costs - Class or representative actions - [See Practice - Topic 210.3 ].

Cases Noticed:

Housen v. Nikolaisen et al., [2002] 2 S.C.R. 235; 286 N.R. 1; 219 Sask.R. 1; 272 W.A.C. 1, refd to. [para. 36].

Cassano et al. v. Toronto-Dominion Bank (2007), 230 O.A.C. 224; 2007 ONCA 781, refd to. [para. 37].

Matson v. Great Northern Grain Terminals Ltd., [2005] C.L.A.D. No. 401, refd to. [para. 48].

T-Line Services Ltd. v. Morin, [1997] C.L.A.D. No. 422, refd to. [para. 50].

Kindersley Transport Ltd. v. Semchysen, [2002] C.L.A.D. No. 4, refd to. [para. 50].

RSB Logistic Inc. v. Hale, [1999] C.L.A.D. No. 548, refd to. [para. 50].

Crown Group Security Ltd., Re, [2004] B.C.E.S.T.D. No. 189, refd to. [para. 50].

Rizzo & Rizzo Shoes Ltd. (Bankrupt), Re, [1998] 1 S.C.R. 27; 221 N.R. 241; 106 O.A.C. 1, refd to. [para. 51].

Chabalayo v. Koscic Transport Ltd., [2003] C.L.A.D. No. 519, refd to. [para. 58].

ConAgra Grain, Canada v. Beare, [2004] C.L.A.D. No. 140, refd to. [para. 58].

Actton Transport Ltd. v. Steeves et al. (2004), 322 N.R. 73 (F.C.A.), refd to. [para. 65].

Quality Travel Inc. v. Labo, [1998] C.L.A.D. No. 44, refd to. [para. 65].

Reimer Express Lines v. v. Teamsters, Local 938 (Overtime Pay Grievance), [2000] C.L.A.D. No 762, refd to. [para. 67].

Hao v. Canadian Imperial Bank of Commerce, [2008] C.L.A.D. No. 368, refd to. [para. 67].

Cloud et al. v. Canada (Attorney General) et al. (2004), 192 O.A.C. 239; 73 O.R.(3d) 401 (C.A.), refd to. [para. 71].

Grant v. Canada (Attorney General) et al., [2009] O.J. No. 5232 (Sup. Ct.), refd to. [para. 72].

Markson v. MBNA Canada Bank (2007), 224 O.A.C. 71 (C.A.), refd to. [para. 100].

Fulawka v. Bank of Nova Scotia, [2010] O.T.C. Uned. 1148; 2010 ONSC 1148, leave to appeal granted [2010] O.A.C. Uned. 308; 2010 ONSC 2645 (Div. Ct.), refd to. [para. 101].

Griffin v. Dell Canada Inc., [2009] O.T.C. Uned. 249 (Sup. Ct.), refd to. [para. 134].

2038724 Ontario Ltd. et al. v. Quizno's Canada Restaurant Corp. et al., [2008] O.T.C. Uned. 365; 2008 CanLII 27822 (Sup. Ct.), revd. (2009), 250 O.A.C. 87; 96 O.R.(3d) 252 (Div. Ct.), affd. (2010), 265 O.A.C. 134; 2010 ONCA 466, refd to. [para. 143].

Hamilton v. Open Window Bakery Ltd. et al., [2004] 1 S.C.R. 303; 316 N.R. 265; 184 O.A.C. 209, refd to. [para. 146].

Andersen et al. v. St. Jude Medical Inc. et al. (2006), 208 O.A.C. 10 (Div. Ct.), refd to. [para. 146].

Ruffolo et al. v. Sun Life Assurance Co. of Canada (2009), 247 O.A.C. 209; 2009 ONCA 274, refd to. [para. 149].

Lambert et al. v. Guidant Corp. et al. (2009), 256 O.A.C. 299; 2009 CarswellOnt 7662 (Div. Ct.), refd to. [para. 153].

Hollick v. Metropolitan Toronto (Municipality) et al., [2001] 3 S.C.R. 158; 277 N.R. 51; 153 O.A.C. 279, refd to. [para. 166].

Hunt v. T & N plc et al., [1990] 2 S.C.R. 959; 117 N.R. 321, refd to. [para. 166].

Anderson et al. v. Wilson et al. (1999), 122 O.A.C. 69; 44 O.R.(3d) 673 (C.A.), leave to appeal refused (2000), 258 N.R. 194; 138 O.A.C. 200 (S.C.C.), refd to. [para. 166].

Healey v. Lakeridge Health Corp. et al., [2006] O.T.C. 981 (Sup. Ct.), refd to. [para. 166].

Peter et al. v. Medtronic Inc. et al., [2007] O.T.C. Uned. Q16 (Sup. Ct.), refd to. [para. 168].

Guidant Corp. et al. v. LeFrancois et al. (2009), 245 O.A.C. 213 (Div. Ct.), refd to. [para. 195].

Peter et al. v. Medtronic Inc. et al., [2008] O.A.C. Uned. 301 (Div. Ct.), refd to. [para. 195].

Western Canadian Shopping Centres Inc. et al. v. Dutton et al. (2001), 272 N.R. 135; 286 A.R. 201; 253 W.A.C. 201 (S.C.C.), refd to. [para. 202].

Bywater v. Toronto Transit Commission (1998), 83 O.T.C. 1; 27 C.P.C.(4th) 172 (Gen. Div.), refd to. [para. 224].

Statutes Noticed:

Canada Labour Code - see Labour Code.

Labour Code, R.S.C. 1985, c. L-2, sect. 168(1) [para. 7]; sect. 169(1) [para. 4]; sect. 174 [para. 6].

Authors and Works Noticed:

Arthurs Commission Report - see Canada, Human Resources and Skills Development Canada, Fairness at Work: Federal Labour Standards for the 21st Century.

Canada, Human Resources and Skills Development Canada, Fairness at Work: Federal Labour Standards for the 21st Century (Arthurs Commission Report) (2006), generally [para. 57].

Counsel:

David F. O'Connor, Louis Sokolov, Steven Barrett and Derek McKay, for the plaintiff/appellant;

Patricia Johnson, Linda Plumpton, Stuart Svonkin, John C. Field and Lauri Reesor, for the defendant/respondent;

Aaron Dantowitz, for the Law Foundation of Ontario.

This appeal was heard on March 24-25, 2010, at Toronto, Ontario, before Ferrier, Swinton and Sachs, JJ., of the Ontario Divisional Court.

On September 10, 2010, the judgment of the Court was released and the following opinions were filed:

Swinton, J. (Ferrier, J., concurring) - see paragraphs 1 to 160;

Sachs, J., dissenting - see paragraphs 161 to 253.