COURT OF APPEAL FOR ONTARIO DATE: 20210126 DOCKET: M51965 (C68801) & M51968 (C68649)

Doherty, Zarnett and Coroza JJ.A.

BETWEEN

Dara Fresco Plaintiff (Respondent/Moving Party)

and

Canadian Imperial Bank of Commerce Defendant (Appellant/Responding Party)

Counsel: Louis Sokolov, Jody Brown and David O’Connor, for the moving party Linda M. Plumpton, Sarah Whitmore and John C. Field, for the responding party

Heard: January 4, 2021 by video conference

Zarnett J.A.

A. Introduction

[1] The respondent, Dara Fresco (“Ms. Fresco”), is the representative plaintiff in a class action against the appellant, Canadian Imperial Bank of Commerce (the “Bank”). She moves to quash two aspects of the appeals brought by the Bank from the judgment of Belobaba J. (the “motions judge”), made in the context of his disposition of common issues in the action.

[2] Specifically, Ms. Fresco argues that although other aspects of the motions judge’s judgment are properly appealable to this court, those dealing with the effect of limitation periods and aggregate damages may only be appealed to the Divisional Court, with leave.

[3] For the reasons that follow, I would dismiss the motions to quash. In my view, the limitations and aggregate damages aspects of the motions judge’s judgment were all part of his judgment on the common issues. This court has jurisdiction under s. 30(3) of the Class Proceedings Act, 1992, S.O. 1992, c. 6 (the “CPA”), over appeals from a judgment on the common issues, and thus over these aspects of the appeals.

B. The context

(1) The Action, Its Certification, and the Common Issues

[4] The class represented by Ms. Fresco is comprised of approximately 31,000 current and former Bank employees. The action concerns class members’ rights to compensation for overtime worked in the period from 1993 to 2009.

[5] Although certification was originally refused by the Superior Court and the Divisional Court, upon further appeal to this court, the action was ultimately certified as a class proceeding in 2012: Fresco v. Canadian Imperial Bank of Commerce, 2012 ONCA 444, 293 O.A.C. 248.

[6] When this court made the certification order, it articulated (i.e. certified) eight common issues for determination. Broadly speaking, common issues 1 to 5 asked whether the Bank breached a contractual or other duty by allowing or encouraging class members to work overtime, not properly recording their time, and not ensuring they were properly compensated for overtime worked. Common issue 6 asked whether the elements of unjust enrichment were established in favour of class members. If the answers to any of common issues 1 to 6 were “yes”, common issue 7 asked what remedies class members were entitled to, and common issue 8 asked whether the class was entitled to an award of aggravated, exemplary or punitive damages.

[7] This court did not certify a separate common issue about the effect of limitation periods, stating: “[t]he issue of limitation periods is not an ingredient of the class members’ claims, but instead may be relied on by [the Bank] in its defence”: at para. 108.

[8] As well, this court refused to certify a common issue concerning an aggregate assessment of damages, stating that for the reasons in Fulawka v. Bank of Nova Scotia, 2012 ONCA 443, 111 O.R. (3d) 346, leave to appeal refused [2012] S.C.C.A. No. 326, “the preconditions in s. 24(1) of the CPA for ordering an aggregate assessment of monetary relief cannot be satisfied in this case”: at para. 109.

(2) The Motions Judge’s Judgment

[9] The parties each moved for summary judgment on the common issues and for related relief. The motions judge held three hearings and issued three sets of reasons.

[10] In his first set of reasons, the motions judge addressed the disposition of common issues 1 through 5, which he denominated the liability issues. He found in favour of the plaintiff class on all five issues: Fresco v. Canadian Imperial Bank of Commerce, 2020 ONSC 75.

[11] In his second set of reasons, the motions judge found in favour of the plaintiff class on issue 6 (unjust enrichment) and on issue 7 (remedies), finding that class members are entitled to certain declarations as well as to damages. He found against the plaintiff class on common issue 8, finding no entitlement to aggravated, exemplary or punitive damages. He also certified an additional common issue—“Can the defendant’s monetary liability be determined on an aggregate basis? If so, in what amount?”—and deferred an answer to that additional issue until a further hearing following an exchange of expert reports. He rejected the Bank’s argument that this court’s refusal to certify aggregate damages as a common issue, and the doctrine of res judicata, precluded him from proceeding as he did. He held that the decision in Pro-Sys Consultants Ltd. v. Microsoft Corporation, 2013 SCC 57, [2013] 3 S.C.R. 477, gave him that power: Fresco v. Canadian Imperial Bank of Commerce, 2020 ONSC 4288.

[12] In his third set of reasons, the motions judge rejected the Bank’s request for a class-wide limitations order barring all class members’ claims before certain dates (2007 in some cases and 2003 in others). He held that although the request rested on a plausible procedural foundation, as it was advanced as part of the summary judgment motion, “the bank’s limitations defence cannot fairly be determined on a class-wide basis but, as per the usual practice, should be deferred to the individual hearings stage”. He also refused to rule on the Bank’s argument that s. 28 of the CPA did not have the effect of suspending the running of limitation periods for class members outside of Ontario, as the issue was “premature” until individual hearings were conducted: Fresco v. Canadian Imperial Bank of Commerce, 2020 ONSC 6098, at paras. 9, 22-23, 53 and 57.

[13] Subsequent to oral argument of these motions to quash, counsel provided this court with the formal judgment of the motions judge. His answers to the common issues are set out in paragraph 1 and Schedule A to the formal judgment, his addition of a common issue regarding aggregate damages is set out in paragraph 2, and his rejection of the Bank’s request for a class-wide limitations order is set out in paragraph 3.

(3) The Appeals

[14] The Bank has appealed from all of the motions judge’s determinations. Although three notices of appeal were filed (one after each set of the motions judge’s reasons) the appeals have been consolidated and will proceed together on all issues subject to the result of this motion.

(4) The Moving Party’s Position

[15] Ms. Fresco does not dispute that the Bank may appeal to this court from the aspects of the judgment that determined common issues 1 through 5 (liability), 6 (unjust enrichment), and 7 (remedies), under s. 30(3) of the CPA. But she takes the position that the motions judge’s decision to certify an additional common issue concerning aggregate damages, and his decision to refuse a class-wide limitations order and to defer limitations issues to individual hearings, can only be appealed to the Divisional Court with leave.

[16] With respect to the motions judge’s determination certifying aggregate damages as an additional common issue, Ms. Fresco argues that the appeal route is governed by s. 30(2) of the CPA [1], in effect at the relevant time, which provided that “an order certifying a proceeding as a class proceeding” may only be appealed to the Divisional Court with leave. If s. 30(2) does not govern, she argues that the appeal route is governed by the Courts of Justice Act, R.S.O. 1990, c. C.43 (the “CJA”). Under s. 6(1)(b) of the CJA, this court only has jurisdiction where the order of Superior Court judge sought to be appealed is final. Ms. Fresco submits that as no decision to grant or award aggregate damages has yet been made, the motions judge’s determination was interlocutory.

[17] With respect to the limitations issue, Ms. Fresco argues that s. 6(1)(b) of the CJA governs the appeal route. Since the motions judge simply deferred limitations questions to the individual hearings stage, no final order was made, and this court lacks jurisdiction over the appeal on that issue.

C. Analysis

[18] I do not accept Ms. Fresco’s arguments.

[19] Whether this court has jurisdiction over an appeal from a judgment or order in a class proceeding is a two-step analysis. The first question is whether the appeal is from a judgment or order covered by s. 30 of the CPA, and if so, whether s. 30 directs the appeal to this court. If the order is not one covered by s. 30 of the CPA, then whether the appeal lies to this court is determined by the provisions of the CJA. In the latter circumstance, the primary determinant is whether the order is final, as opposed to interlocutory: Bancroft-Snell v. Visa Canada Corporation, 2019 ONCA 822, 148 O.R. (3d) 139, at para. 16.

[20] The version of the CPA that governs this appeal provided, in s. 30(2) and (3), as follows:

(2) A party may appeal to the Divisional Court from an order certifying a proceeding as a class proceeding, with leave of the Superior Court of Justice as provided in the rules of court.

(3) A party may appeal to the Court of Appeal from a judgment on common issues and from an order under section 24, other than an order that determines individual claims made by class.

[21] For efficiency, the motions judge held three hearings and issued three sets of reasons addressing a number of issues. But this should not obscure the appropriate focus on the question of the proper appeal route. The matters that the motions judge dealt with all arose on motions for judgment on the common issues. The determinations he made about limitations and aggregate damages were part of his judgment on the common issues. This court therefore has jurisdiction over all aspects of the appeals under s. 30(3) of the CPA. It is not necessary to consider whether, viewed discreetly, the determinations of these issues were final or interlocutory, a distinction that is not imported into s. 30(3) of the CPA.

(1) Limitations

[22] Two factors combine to entail the conclusion that the limitations aspect of the judgment is appealable as part of the judgment on the common issues. First, the limitations issue was raised as a defence on a class-wide basis, and second, the motions judge rejected the defence as being applicable on a class-wide basis, in the context of his disposition of the common issues.

[23] As was permitted by this court when it certified the action as a class proceeding, the limitations issue was raised by the Bank as a defence to the claim of the plaintiff class on the common issues. As a defence, it was raised to alter or restrict the judgment that would otherwise be given on the common issues. The limitations defence, in the form of a request for a class-wide limitations restriction, was part of the Bank’s position on the summary judgment motions.

[24] If the motions judge had accepted the Bank’s defence that, on a class-wide basis, claims before certain dates were statute barred, the judgment on the common issues on liability or remedy would have reflected that restriction. [2] As the defence on a class-wide basis was not accepted, the common issues judgment on liability and remedy reflects no class-wide restriction of claims. As in any appeal from a judgment, whether a defence should have been accepted and altered or restricted the judgment given is fair game for argument on the appeal. It is part of the appeal from the judgment itself.

[25] As much as it may be germane to whether there is any merit to the Bank’s complaint about how the limitations defence was dealt with by the motions judge, it is not germane to the appeal route that the motions judge said that limitations issues could be raised at the individual hearings stage. Answering common issues without giving effect to a defence that is asserted to be applicable on a class-wide basis, even while holding that the defence may be raised in individual hearings, is still a judgment on the common issues for appeal purposes. [3]

(2) Aggregate Damages

[26] Similarly, it is the nature of the power exercised by the motions judge to add aggregate damages as an issue, and the context in which he exercised it, that entail the conclusion that that aspect of the judgment is appealable as part of the judgment on the common issues.

[27] In certifying aggregate damages as an additional common issue, the motions judge did not make an order certifying the proceedings as a class proceeding within the meaning of s. 30(2) of the CPA. Such an order had already been made by this court in 2012. Accordingly, the appeal route in s. 30(2) of the CPA is inapplicable.

[28] Nor did the motions judge make an order adding a common issue prior to, or in circumstances divorced from, his disposition of the common issues. Rather, the motions judge was exercising the power referred to by the Supreme Court of Canada in Pro-Sys Consultants, where Rothstein J. stated, at para. 134:

The ultimate decision as to whether the aggregate damages provisions of the CPA should be available is one that should be left to the common issues trial judge. Further, the failure to propose or certify aggregate damages, or another remedy, as a common issue does not preclude a trial judge from invoking the provisions if considered appropriate once liability is found.

[29] In other words, the motions judge relied on a power that permits the judge deciding the common issues of liability and remedy, to add aggregate damages as an additional common issue. His directions toward an award of aggregate damages are therefore part of his judgment on the common issues, as is his rejection of the Bank’s defence to the exercise of that power, namely that this court’s prior refusal to certify aggregate damages as a common issue in this case in the 2012 certification order gave rise to res judicata.

[30] That the motions judge left, to a further hearing, the question of whether aggregate damages would actually be ordered payable, goes to the correctness of his exercise of the power and, perhaps, to whether the issue is ripe for appeal, but is not relevant to where the appeal lies.

D. Conclusion

[31] For these reasons, I would dismiss the motions to quash. In accordance with the agreement of the parties, the Bank is entitled to its costs of the motions fixed in the sum of $10,000, inclusive of disbursements and applicable taxes.

Released: January 26, 2021 “DD”

“B. Zarnett J.A.”

“I agree. Doherty J.A.”

“I agree. S. Coroza J.A.”

[1] Recent amendments to the CPA came into effect October 1, 2020 but they do not apply to this proceeding. As amended, the CPA now directs that appeals from orders certifying or refusing to certify a class proceeding be brought to this court.

[2] It would not matter if the answers to the questions of whether the Bank had liability and whether there was a remedy in damages appeared in one paragraph of the formal judgment and the restriction—that there was no liability or damages before a certain date—appeared in a different paragraph. They would have to be considered together as the judgment on the common issues.

[3] Just as the judgment on the common issue of remedies, which specified a remedy of damages, is properly appealable to this court even though no amount is thereby awarded to any person, and even though, absent consideration of aggregate damages, individual hearings would be required to deal with whether any individual had proven an amount that the Bank would have to pay.