Henry Edward Charles Federer

The Canadian Imperial Bank of Commerce appealed three lower court decisions in a class action initiated by Dara Fresco on behalf of 31,000 customer service employees.

The class action alleged that the Bank's overtime policies and record-keeping practices led to uncompensated overtime, contrary to the Canada Labour Code.

The Court of Appeal for Ontario dismissed all three appeals.

It upheld the motion judge's interpretation of "permitted" overtime under s. 174 of the Code, affirming that the Bank's policies and record-keeping were "institutional impediments" to proper compensation.

The Court also confirmed the certification of aggregate damages, ruling that the Supreme Court's Pro-Sys decision allowed the trial judge to reconsider this issue despite a previous refusal at certification.

Finally, the Court upheld the motion judge's decision to defer a class-wide limitations order and a constitutional question regarding the extra-territorial application of the Class Proceedings Act, deeming them premature.

The case involved a claim by Scotia Capital Inc. against Aphria Inc. for an "Independence Fee" under an engagement letter for financial advisory services in defending a hostile takeover bid, and a counterclaim by Aphria for defamation related to Scotia's discontinuation of analyst coverage.

The court found that Scotia successfully defended Aphria against the takeover bid, entitling it to the Independence Fee.

The court dismissed Aphria's defense arguments of lack of causality and repudiation.

The court also dismissed Aphria's counterclaim for defamation, finding no evidence that the discontinuation of coverage lowered Aphria's reputation or caused economic loss.