Today, the Court of Appeal for Ontario released three unanimous decisions pertaining to class actions for claims of unpaid overtime. The two class actions against the defendant banks were certified and the claim against the Canadian National Railway was dismissed.
In Fresco v. Canadian Imperial Bank of Commerce the Court overturned the Divisional Court’s dismissal of the class action by certifying the majority of the common issues. In Fulawka v. Bank of Nova Scotia, the Court maintained that the action should be certified but allowed the appeal from the Divisional Court that upheld the certification order of the motion judge to the extent that some of the common issues previously certified were struck out. Finally, in McCracken v. Canadian National Railway Company the Court found that the absence of commonality was fatal to the certification of the action, allowed the appeal and set aside the certification order. A more detailed summary of these three decisions will follow.