In Brown v. Canadian Imperial Bank of Commerce the Court of Appeal denied certifying yet another “misclassification” class action claiming overtime pay.
But that doesn’t mean the Court of Appeal has closed the door on these kinds of overtime class actions, says Laura Fric, a litigation partner with Osler Hoskin & Harcourt LLP.
“What matters is the facts of each case,” says Fric. “The Court was clear that ‘misclassification’ overtime claims are not all doomed to fail as a class action, just as ‘off-the-clock’ overtime class actions are not guaranteed to be certified.”
Jonathan Ptak, partner with the class action group at Koskie Minsky LLP represented the plaintiffs. He says his clients are still considering seeking leave to the Supreme Court.
"Certainly I'm disappointed by the Court's decision and the analysis for this case. We believe it is a case that ought to be certified," says Ptak, noting the judge's decision "certainly leaves the door open for other cases under the right circumstances."
Ptak notes there is another class action involving misclassified investment advisors that has been certified — Rosen v. BMO Nesbitt Burns Inc.
At the certification motion, the plaintiffs in Brown had proposed a class definition consisting of employees who had worked for CIBC after 1996 and held the job titles of analyst, investment advisor, or associate investment advisor.
The motion judge concluded that eligibility for overtime pay under the applicable statutory regime or CIBC’s overtime policy could not be determined on a common basis for all members of the proposed class. He further held that, absent a common issue on the question of eligibility for overtime pay, the claim should not be certified under s. 5 of the Class Proceedings Act, 1992, S.O. 1992, c. 6.
The Divisional Court also refused to certify the action.
The definition of the proposed class changed over the course of the proceedings. The description of the proposed class, first put forward in the Divisional Court and relied on in the Appeal Court was as follows:
All Ontario current and former CIBC and CIBC World Market employees, since 1996, who were classified by CIBC or CIBCWM as level 6 or higher, who held the title “investment advisor” (otherwise known as financial advisor) or “associate investment advisor,” exclusive of any time period for which they:
(a) held the position of branch manager; or
(b) held the position of assistant branch manager; or,
(c) had deductions taken from earned commissions which were attributed to an associate investment advisor who was assigned to him/her.
The Divisional Court held that despite the considerable narrowing of the proposed class, the determination of eligibility for overtime pay remained an employee-specific inquiry that was not amenable to resolution as a common issue. The court placed considerable reliance on the analysis in McCracken v. Canadian National Railway Company. The Divisional Court also agreed with the motion judge that none of the other proposed common issues rendered the claims suitable for certification.
In the Court of Appeal, the plaintiffs argued, first, that the courts below erred in holding that eligibility for overtime pay was not a common issue. They submitted that both the motion judge and the Divisional Court “fundamentally misapprehended the relevant evidence and failed to apply the legal principles governing the common issue assessment required by s. 5(1)(c) of the CPA.” Second, the appellants submitted that even if eligibility for overtime pay was not a common issue, there were other common issues that warranted certification of the action.
Justice David Doherty in his decision said: “Like the courts below, I think the outcome of the certification motion turned on s. 5(1)(c) of the CPA and, specifically, whether eligibility for overtime pay could be certified as a common issue.”
“The Court cares about whether there is a common question it can efficiently and fairly decide,” says Fric. “If there is not one, then no one is done any favours by having the claim go forward.”
Fric also points out that 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. It often matters what the employees do, she adds, not what they are called.
“While an employer might organize their employees by job title and/or level for some purposes, the Court’s analysis won’t stop with looking at superficially similar job titles or levels. The Court will look at what the responsibilities and duties the employees actually perform.”
For employers, Fric says one takeaway from the decision would be to address individual circumstances when determining whether people are eligible for overtime pay or not.