Fresco v. Canadian Imperial Bank of Commerce 2012 ONCA 444
Practice - Persons who can sue and be sued - Individuals and corporations - Status or standing - Class or representative actions - Certification - Considerations (incl. when class action appropriate)
Fresco, the proposed representative plaintiff, applied under s. 5 of the Class Proceedings Act for certification of a class action against the Canadian Imperial Bank of Commerce (CIBC), on behalf of 31,000 bank tellers and customer service representatives who worked in 1,000 bank branches across Canada. The claim sought compensation for unpaid overtime work on the basis that the bank’s overtime policy violated the bank’s contractual obligations and the provisions of the Canada Labour Code. The plaintiff claimed damages, and declaratory and injunctive relief.
The Ontario Superior Court, in a judgment reported  O.T.C. Uned. E32, denied certification on the ground that although a class action would be the preferable procedure, the action lacked the essential element of commonality of issues. The court held that it was “plain and obvious” that the bank’s overtime policy complied with the Code. In a subsequent decision, reported at  O.T.C. Uned. 1036, the court awarded the bank $525,000 in costs, inclusive of fees, disbursements and GST. The plaintiff appealed the certification decision and the costs order.
The Ontario Divisional Court, Sachs, J., dissenting, in a decision reported (2010), 267 O.A.C. 317, dismissed the appeal. The plaintiff appealed again.
The Ontario Court of Appeal allowed the appeal and substituted an order certifying the class action. The court certified a number of the plaintiff’s proposed common issues, but refused to certify, inter alia, a common issue concerning an aggregate assessment of damages.
Editor’s Note: This case was one of a trilogy of cases dealing with certification of class actions - see also Fulawka v. Bank of Nova Scotia,  O.A.C. TBEd. JL.006; 2012 ONCA 443 and McCracken v. Canadian National Railway Co.,  O.A.C. TBEd. JL.008; 2012 ONCA 445