On September 10, 2010, the Ontario Divisional Court upheld the denial of class action certification in Fresco v. Canadian Imperial Bank of Commerce.1

The plaintiff, Dara Fresco, is a customer service representative at one of CIBC's Toronto branches. Ms. Fresco sought to bring a class proceeding on behalf of tens of thousands of current and former CIBC branch employees located throughout Canada. On June 18, 2009, Justice Lax of the Superior Court decided that the case did not meet the requirements necessary to proceed as a class action. Ms. Fresco appealed that decision to the Divisional Court.

In dismissing the plaintiff's appeal, the Divisional Court affirmed the key conclusions made by Justice Lax in her decision denying certification. Specifically, it upheld Justice Lax's determinations that

  • it is "plain and obvious" that CIBC's Overtime Policy complies with the requirements of the Canada Labour Code; that policy included a requirement that overtime hours receive management approval and a provision allowing an employee to choose to receive time off in lieu of payment;
  • there was no evidence before the Court of any systemic policy, practice or experience of unpaid overtime at CIBC; and
  • there was no evidence that CIBC's record keeping with regard to employees' hours of work violated the law.

The Divisional Court distinguished Fresco from a proposed overtime class action brought against the Bank of Nova Scotia, noting that the certification decision in each case turned on specific facts. The Court concluded that nothing in the BNS decision suggested that the decision by Justice Lax in Fresco was incorrect.

In a dissenting decision, Justice Sachs concluded that she would have allowed the appeal and certified the action.

The Divisional Court also upheld the award of costs made in favour of CIBC on the certification motion. This is the highest award yet to a single successful defendant on a certification motion.

The plaintiff has stated that she intends to seek leave to appeal the decision to the Court of Appeal.