Peter Charles Engelmann

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 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.

In an unpaid overtime class action, the defendant bank inadvertently produced three employee survey theme reports and brought a motion seeking their return on the basis of solicitor-client and litigation privilege.

The court dismissed the motion, finding that the reports were factual summaries created by a third-party vendor for business purposes, did not contain legal advice, and were not created with the dominant purpose of litigation preparation.

The documents were ordered to remain produced.

The Crown and co-defendants moved to strike a crossclaim filed by a former correctional officer, John Barbro, which included claims for malicious prosecution, defamation, and bad faith wrongful dismissal.

The moving parties argued that the essential character of these claims arose from a collective agreement and thus fell within the exclusive jurisdiction of the Grievance Settlement Board (GSB).

The court applied the Weber framework, finding that the dispute's essential character was workplace-related, stemming from an incident, subsequent investigation, and disciplinary process governed by the collective agreement.

The court rejected arguments for concurrent jurisdiction based on the MCSA and PACA, and declined to exercise residual discretion.

The motion to strike the crossclaim (except for contribution and indemnity) was granted, with leave for Mr. Barbro to file an amended statement of defence and crossclaim.

The defendant brought a motion to strike the plaintiff's defamation claim against him on the basis that it disclosed no reasonable cause of action.

The plaintiff alleged the defendant republished a defamatory email by replying to the original sender and potentially blind copying others.

The court held that replying only to the sender does not constitute publication or republication in defamation law.

Furthermore, the plaintiff failed to plead material facts supporting the bald allegation that the email was blind copied to third parties.

The motion was granted and the claim against the defendant was struck without leave to amend.

The moving party sought leave to appeal an order sanctioning the monitor's methodology for distributing funds in Nortel's Health and Welfare Trust under the CCAA.

The Court of Appeal dismissed the motion, finding that the interpretation of the specific termination clause was not of significance to the practice, the appeal was not prima facie meritorious, and granting leave would unduly hinder the progress of the restructuring.

Costs were awarded to the Monitor.

Following the dismissal of the applicants' judicial review application on the grounds of delay, the respondents sought costs.

The court fixed costs on a partial indemnity scale, reducing the claimed amounts due to excessive hours, duplication of effort by multiple lawyers, and unexplained disbursements.

Costs were fixed at $18,000 plus disbursements for the respondent union and $14,000 plus disbursements for the respondent locals.

The appellant challenged the institutional independence and impartiality of the Canadian Human Rights Tribunal, arguing that the Canadian Human Rights Commission's power to issue binding guidelines and the Tribunal Chairperson's power to extend members' terms compromised procedural fairness.

The Supreme Court of Canada dismissed the appeal, holding that the Tribunal's main function is adjudicative but it also serves to implement government policy, warranting a lower standard of independence than a court.

The Court found that the guideline power is a form of law that does not fetter the Tribunal improperly, and the power to extend appointments does not threaten security of tenure or impartiality.

The applicants sought judicial review of an Ontario Labour Relations Board decision but delayed perfecting the application for 13 months.

The respondents brought a preliminary motion to dismiss the application for delay.

The Divisional Court granted the motion, noting the applicants offered no explanation for the delay, evaded explicit OLRB orders, and caused ongoing prejudice and uncertainty in a time-sensitive labour relations dispute.

The respondent was dismissed from his position as executive director of the appellant association for sexually harassing female employees.

The trial judge found that the conduct occurred outside the workplace and was consensual, concluding there was no just cause for dismissal.

On appeal, the Court of Appeal overturned the trial judge's decision, finding that the trial judge failed to account for the power imbalance between a supervisor and employees, and erred in characterizing work-related social events as outside the workplace.

The Court held that the respondent's pattern of sexually harassing conduct created an intolerable work environment and constituted just cause for dismissal.

The appellant CBC forced a journalist to choose between his position as a radio host and his role as president of a trade union after he published an article opposing free trade in a union newsletter.

The union filed a complaint alleging an unfair labour practice under s. 94(1)(a) of the Canada Labour Code.

The Canada Labour Relations Board upheld the complaint, finding the CBC's journalistic policy did not justify the interference.

The Supreme Court of Canada dismissed the CBC's appeal, holding that the Board's decision was within its jurisdiction and not patently unreasonable, and that the Board's interpretation of the external Broadcasting Act did not alter the overall standard of review to correctness.