Lara Guest

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.

In a national class action for unpaid overtime, the defendant bank brought a motion for a class-wide limitations order to time-bar claims falling outside provincial limitation periods.

The court dismissed the motion, finding that the reasonable discoverability of the claims—specifically whether taking legal action was appropriate—required individualized assessments.

Evidence of power imbalances, fear of reprisal, and reasonable reliance on the bank's misrepresentations rebutted the statutory presumption of discoverability on a class-wide basis.

The plaintiff's cross-motion to strike the limitations defence entirely was also dismissed.

This decision addresses cross-motions for summary judgment on damages issues in a class action for unpaid overtime.

The court previously found the defendant bank liable for breaching federal labour law regarding overtime.

In this stage, the court considered common issues related to unjust enrichment, remedies, and punitive damages, and crucially, whether to add aggregate damages as a common issue.

The court found that while the defendant was enriched, restitutionary relief was not available due to the breach of contract claim.

Punitive damages were denied as the bank's conduct, though careless, did not meet the "malicious, oppressive and high-handed" standard.

Most significantly, the court certified aggregate damages as a new common issue, finding a "reasonable possibility" that the plaintiff's proposed methodology, based on time-stamped computer data, could determine damages without individual proof, despite previous appellate court reservations about sampling.

The determination of the final aggregate damages quantum was adjourned pending expert reports and data access.

The representative plaintiff brought a motion for summary judgment on the liability common issues in a class action for unpaid overtime on behalf of customer service employees of the defendant bank.

The court found that the bank's overtime policies, which required pre-approval, and its failure to record actual hours worked, violated the Canada Labour Code.

The court concluded that the bank permitted uncompensated overtime by failing to prevent it, thereby breaching its statutory and contractual duties to the class members.

The plaintiff, an air charter broker, brought an action against the defendant airline for breach of a restrictive covenant in a Charter Transportation Agreement.

The defendant argued the covenant was unenforceable, sought rectification for unilateral mistake, and relied on an exclusion clause and the unenforceability of a liquidated damages clause.

The court found the restrictive covenant valid and enforceable, denied rectification as the defendant simply failed to read the contract, and held the exclusion clause did not apply to breach of contract damages.

While the liquidated damages clause was struck as a penalty, the court awarded the plaintiff $1,064,636.32 in compensatory damages for lost profits.

The plaintiff, a corporate successor to a former member of the defendant co-operative, brought an oppression action seeking solely re-admission as a member.

The defendants moved for summary judgment.

The court found that the plaintiff, having voluntarily amalgamated, no longer existed as a co-operative and could not meet the membership criteria.

The court rejected the plaintiff's argument that it could conditionally re-organize if granted the remedy, holding that litigation is not a 'dry run.' The action was dismissed, and the court noted that naming the personal defendants was an abuse of process given the limited relief sought.

Costs of $300,000 were awarded to the defendants.

The plaintiff obtained a default judgment against the defendant for breach of confidence, intentional infliction of mental distress, and invasion of privacy after the defendant posted an intimate video of the plaintiff online.

The defendant successfully moved to set aside the default judgment.

The plaintiff sought leave to appeal the order setting aside the default judgment.

The Divisional Court dismissed the motion for leave to appeal, finding no reason to doubt the correctness of the motion judge's application of the test to set aside a default judgment, and concluding that a trial on the merits would be of general importance to the development of the law.

The plaintiff sought leave to appeal a decision that set aside a default judgment against the defendant.

The original default judgment found the defendant liable for breach of confidence, intentional infliction of mental distress, and invasion of privacy, awarding significant damages and an injunction.

The motion judge (Dow J.) set aside the default judgment, allowing the defendant to defend on the merits, conditional on a costs payment.

The plaintiff argued that the motion judge erred by considering the defendant's proposed defence despite intentional default, failing to distinguish liability from damages, and not adequately considering psychological harm.

The court dismissed the motion for leave to appeal, finding no reason to doubt the correctness of the motion judge's decision and emphasizing the importance of a trial on the merits for the development of tort law in this unique area.

The plaintiffs, having successfully appealed the dismissal of their class action as time-barred and obtained certification and leave to proceed, sought costs on a partial indemnity basis for the certification and leave motions.

The defendants argued for a significant reduction, citing an "indulgence" (nunc pro tunc order), costs for required steps, limitation period issues, expert reports, divided success, and comparable cases.

The court rejected the defendants' arguments, emphasizing the extraordinary nature of the case, the public interest in access to justice for complex class actions, and the substantial success achieved by the plaintiffs.

The court awarded the plaintiffs the full amount of costs claimed, $2,679,277.82, payable by the Canadian Imperial Bank of Commerce.

The appellants commenced an action in Ontario alleging mismanagement of their investment accounts by their advisor and vicarious liability of the brokerage firm.

The brokerage firm successfully moved to stay the action based on a forum selection clause in the client account agreements requiring disputes to be litigated in British Columbia.

The Court of Appeal dismissed the appeal, finding the appellants failed to show strong cause to depart from the forum selection clause, as they were sophisticated investors who had the opportunity to read the agreements, and Ontario law could be proven in British Columbia courts.

The complainant trade council sought an interim order under section 91(8) of the Labour Relations Act to restore a work assignment after the respondent employer cancelled a general contract and announced its intention to complete the remaining construction work using its own employees.

The Board declined to issue the interim order, finding that the statutory requirement of an imminent or existing strike 'by reason of the assignment of work' was not met, as there were no building trades employees left on the site to strike, and the picketing did not stop the employer's own employees from working.

The main complaint was referred for further processing.