Case: Fresco v. Canadian Imperial Bank of Commerce (CIBC), 2022 ONCA 115
- Background: In 2007, a class action was initiated against CIBC by a representative plaintiff on behalf of 31,000 customer service employees who worked for the bank between 1993 and 2009. The action alleged that the bank’s policies allowed overtime work without appropriate compensation, breaching the Canada Labour Code.
- Key Issues: The case focused on whether the bank’s overtime policies complied with s. 174 of the Labour Code, which requires employees to be compensated with time-and-a-half for overtime work.
- Certification: In 2012, the Ontario Court of Appeal certified eight common issues, granting summary judgment to the representative plaintiff on liability. The court certified aggregate damages as a common issue, leaving individual damages entitlements for later assessment. Limitation defenses were to be determined at the individual hearing stage.
- Court’s Findings: The Court of Appeal upheld the motion judge’s ruling, stating that the bank’s overtime policies breached s. 174 of the Labour Code. It clarified that “permitted” should mean “allowed to work or is not prevented from working in excess of standard hours,” entitling the employee to no less than time-and-a-half.
- Implications: The case has significant implications for businesses regarding overtime and misclassification of employees, especially in the gig economy. Employment-related class litigation involving overtime and misclassification issues is emerging in various industries.
- Importance of Compliance: The case underscores the importance of businesses being cognizant of employment-related class litigation, particularly when dealing with dependent or independent contractors who may be considered employees.
Case Details:
In the case of Fresco v. Canadian Imperial Bank of Commerce (CIBC), a class action was initiated in 2007 by a representative plaintiff on behalf of 31,000 customer service employees who worked for CIBC between 1993 and 2009. The action alleged that the bank’s policies allowed employees to work overtime without appropriate compensation, breaching the Canada Labour Code.
The Ontario Court of Appeal certified eight common issues in 2012, granting summary judgment to the representative plaintiff on liability. On damages, aggregate damages were certified as a common issue, with individual entitlements to be determined later. The bank’s limitation defenses were left for determination at the individual hearing stage. The Court of Appeal upheld the motion judge’s findings, stating that the bank’s overtime policies breached s. 174 of the Labour Code. It clarified that “permitted” should mean “allowed to work or is not prevented from working in excess of standard hours,” entitling the employee to no less than time-and-a-half.
The case has significant implications for businesses, particularly those operating in the gig economy, with employment-related class litigation concerning overtime and employee misclassification emerging in multiple industries. The ruling underscores the importance of businesses being cognizant of employment-related class litigation, especially when dealing with dependent or independent contractors who may be considered employees.
