On June 26, 2012, the Ontario Court of Appeal released its reasons in three leading employment class action cases: Fresco v. Canadian Imperial Bank of Commerce, Fulawka v. Bank of Nova Scotia and McCracken v. Canadian National Railway Co. The Court of Appeal ordered that the class actions by front-line staff against CIBC and BNS for unpaid overtime can proceed. The Court overturned the decision certifying a similar claim by CN employees. Chief Justice Warren Winkler authored all three unanimous decisions.
After five years of litigation, three appeals, eight sets of reasons (including a dissent), hundreds of thousands of dollars in costs and numerous procedural motions, the only thing that seems clear is that one or more of the unsuccessful parties will likely seek leave to appeal to the Supreme Court of Canada.
The Bank Cases
Fulawka and Fresco are both "off-the-clock" cases. The class members, who are all front-line staff, allege that the banks' overtime policies required them to obtain prior approval to be paid for overtime work even though the overtime was required or permitted to be performed. Further, they assert that they were not paid for that overtime because they did not receive prior approval.
Despite the fact that both Fresco and Fulawka involved similar allegations and employers, both cases were initially treated differently. Fulawka was originally certified; Fresco was not. Under the Class Proceedings Act, Fresco proceeded directly to the Court of Appeal. Fulawka was appealed to the Divisional Court, where a 2-1 majority upheld the certification order. Both appeals to the Court of Appeal were heard consecutively in December 2011. The plaintiffs were represented by the same counsel in both cases.
Notwithstanding CIBC's efforts to distinguish its case from the decision in Fulawka, the Court of Appeal ultimately concluded that "both certification motions should either succeed or fail together". In its view, both cases are appropriate for certification. That being said, the Court rejected the availability of aggregate damages assessed on a class-wide basis.
In Fulawka, BNS argued that the common issues certified by the motion judge are not "substantial ingredients" of the class members' claim and, as such, would not advance the litigation. In an effort to demonstrate that the class members' proposed common issues would not assist in resolving their claims, BNS made admissions or concessions about the existence of certain implied...