In the last few years, a number of proposed class
actions have been commenced in Ontario seeking compensation for
unpaid "overtime" wages. They raise allegations regarding
"off the clock" unpaid time and
"misclassification." The cases arose in various sectors,
including banking, accounting firms and a railway.
To date, the decisions on whether these claims ought to be
certified have mixed results. Some have been certified and some
have not. Cases are currently making their way up the appellate
ladder. Three cases currently under reserve by the Ontario Court of
Appeal are: Fulawka v. Bank of Nova Scotia, Fresco v.
Canadian Imperial Bank of Commerce and McCracken v.
Canadian National Railway.
In the midst of this uneven landscape, a judge with particular
expertise in class actions, Justice G.R. Strathy, released his
decision in Brown v. Canadian Imperial Bank of Commerce on
April 27, 2012. In a forceful decision, Justice Strathy refused to
certify this overtime claim. It is of note that, two years earlier,
Justice Strathy had certified the "off the clock" claim
in Fulawka v. BNS.
In Brown v. CIBC, the proposed class included
"Analysts" and "Investment Advisors." The
plaintiff claimed these employees had been
"misclassified" as "managers" and wrongfully
excluded from overtime eligibility. Under the legislation, a
"manager" is generally not entitled to overtime
Justice Strathy noted that the duties and responsibilities of
"analysts" varied widely. He stated, "Some analysts
unquestionably have managerial responsibilities. Others
unquestionably do not. Others fall in a gray area." There were
also individual variations in the responsibilities of investment
Justice Strathy concluded that:
Class members had little in common except their job names. The
key issue of fact – namely whether or not a person has
managerial responsibilities - could not be determined on a
class-wide basis. There was no common issue.
There was no workable methodology to resolve the key factual
issue. Statistical sampling could not determine liability, and the
job duties of proposed class members were too dissimilar for
statistics to be useful.
The common issue found by Perell J. in a misclassification
claim in McCracken v. CN, asking "What are the
minimum requirements to be a managerial employee at CN?" would
not work in this case. It could not avoid the individual
determinations of eligibility for overtime. (Justice Strathy also
noted that the correctness of the decision had been questioned when
leave to appeal had been granted by the Divisional Court.)
In essence, Justice Strathy found that for a misclassification
overtime claim to have any hope of being certified, it must at a
minimum have a class with "identical or similar" job
The book on overtime class actions in Ontario has yet to be
written, but in the meantime Brown v. CIBC is a
Laura Fric has extensive advocacy experience,
specializing in securities litigation and defending class
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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In BCE Inc. v. Gillis, 2015 NSCA 32, issued on April 9, 2015, the Nova Scotia Court of Appeal considered the doctrine of abuse of process in the context of a proposed class proceeding where a virtually identical action, commenced by the same plaintiffs represented by the same counsel (Merchant Law Group)