The Court of Appeal for Ontario today denied certifying a “misclassification” class action claiming overtime pay. In doing so, the Court confirmed that where job descriptions of the proposed class are variable they do not have common issues.

The Decision

In Brown v. Canadian Imperial Bank of Commerce the plaintiff claimed that certain types of investment advisors (IAs) working for CIBC World Markets were eligible for overtime pay under the applicable employment legislation. The motions judge and the first level of appeal court, the Divisional Court, had both previously refused to certified the action (see some of our previousposts on the overtime class actions).

The Court of Appeal refused to overturn the lower court decisions based on the following findings:

  • Under the applicable employment legislation, an individual is not entitled to overtime pay if he or she has managerial or supervisory functions.
  • Whether individuals holding investment advisor jobs at CIBC had managerial or supervisory functions depended on their individual circumstances. People with the same job level or title could have different functions and responsibilities. Some investment advisors were at the “managerial” end of the spectrum in terms of their autonomy, independence, discretion and authority. Others were not.
  • CIBC’s own written overtime policy, which referred to job titles, was a guideline; ultimate eligibility for overtime pay was determined based on the individual investment advisor’s duties and responsibilities.

“Misclassification” Versus “Off-the-Clock” Overtime Class Actions

Brown represents another instance where a “misclassification” overtime case has not been certified, following the Court of Appeal’s decision in McCracken v. Canadian National Railway Co. In contrast, the “off-the-clock” overtime class actions such as Fulawka v. The Bank of Nova Scotia and Fresco v. Canadian Imperial Bank of Commerce were both certified. In the “off the clock” cases, eligibility of class members for overtime pay was not an issue – instead, the plaintiffs alleged there was a systematic practice of unpaid overtime towards eligible employees.

The Court of Appeal cautioned in Brown that there is no rule that “misclassification” claims are automatically incapable of being certified, just as there is no rule that “off-the-clock” cases should automatically be certified. In each, it depends on the particular facts. For “misclassification” cases, if the evidence shows a disparity of functions and responsibilities within the proposed class, then there is no common issue to be certified.