Fresco v. Canadian Imperial Bank of Commerce
Unpaid Overtime Class Action
What the class action is about
In June 2007, Goldblatt Partners LLP and Roy O’Connor LLP filed class action suit against the Canadian Imperial Bank of Commerce for unpaid overtime. The lawsuit is the largest unpaid overtime class action ever launched in Canada.
The action covers thousands of current and former non-management, non-unionized employees of CIBC in Canada who are or were tellers or other front-line customer service employees (limited to personal bankers, commercial bankers and account executives) working at CIBC retail branch offices across Canada.
The statement of claim alleges that class members are assigned heavier workloads than can be completed within their standard working hours. They are required or permitted to work overtime to meet the demands of their jobs and CIBC fails to pay for the overtime work in direct contravention of the Canada Labour Code under which they are regulated.
The representative plaintiff is Dara Fresco, a CIBC teller who has worked in more than a dozen CIBC branches across Toronto. Based on her own experience, she claims the unpaid overtime situation is widespread at CIBC among non-management employees.
For more information, visit the CIBC Unpaid Overtime website.
Updates
September 28, 2023 – Class members can now ask for settlement payments
Class members can now ask for payment from the settlement by going to File Claim – CIBC Unpaid Overtime Class Action (ricepointconnect.com)
Questions can be emailed to cibcunpaidovertime@ricepoint.com.
July 5, 2023 – Outcome of the hearing on fees and disbursements
Following a hearing on March 3, 2023 Justice Belobaba approved this $153 million settlement as being fair, reasonable and in the best interests of the Class. To view a copy of the Court’s order approving the settlement, click here. To view a copy of the Court’s order approving the distribution protocol, click here.
Sadly, Justice Belobaba became ill and subsequently passed away. On April 24, 2023, Class Counsel’s fee approval motion was heard before another judge, Justice Perell of the Ontario Superior Court.On May 18, 2023, the Superior Court of Quebec released its judgment, recognizing the settlement in Quebec. A copy of the judgment in French is here and an unofficial translation in English is here. As a result, the settlement is now final.
On June 2, 2023, Justice Perell released his decision regarding Class Counsel fees and Class Counsel’s request to recognize Ms. Fresco’s fortitude and work on this case with an honorarium. Justice Perell awarded Class Counsel 17% of the settlement (net of disbursements) which was slightly more than half of the 30% fee that was provided for in the retainer agreement and declined to award Ms. Fresco any honorarium. To read the Court’s reasons, click here.
Given the significant risks in this case, the decade and a half required to bring it to a successful conclusion and the overall quality of the result, respectfully, Class Counsel disagrees with Justice Perell’s decision on fees and honorarium and has brought an appeal to the Court of Appeal for Ontario to review those two issues. A copy of the notice of appeal is here. The appeal will likely be determined sometime next year.
The distribution protocol approved by Justice Belobaba contemplated that the distribution of the net settlement funds available would proceed in two stages. That will still take place, as approved by the Court in an amended distribution order. The first distribution will likely take place sometime this fall and will be based on 70% of the net settlement funds available, as provided for in the original distribution protocol. The second distribution will take place after the resolution of the appeal and will include the remaining 30% of the net settlement funds, plus any additional money that is the subject of the appeal, that is not granted to Class Counsel. The appeal regarding fees will not delay the first distribution and is unlikely to delay the second distribution.
Experts retained by Class Counsel are currently determining the relative share of Class Members to the net settlement funds, following which the claims process will begin. A detailed notice describing the claims process will be posted to this website and distributed in the next several weeks.
March 3, 2023 – Settlement Approved
Justice Belobaba approved the settlement and the proposed distribution protocol today. The Court asked for further written submissions in respect of Class Counsel’s motion for approval of fees and disbursements.
February 24, 2023 – Zoom Details for March 3 hearing and materials
The materials for the hearing on March 3 are available here and here.
The Zoom details for the March 3 Settlement Approval Hearing are as follows:
[Zoom link deleted]January 19, 2023: Distribution Protocol and information about the settement hearing
The settlement approval hearing has been scheduled for March 3, 2023 at 11 a.m. Details about the hearing will be posted on the CIBC Unpaid Overtime when they are available.
You can read the Approval Hearing Publication Notice here. The Approval Hearing Direct Notice is here.
You can read the Distribution Protocol here.
January 5, 2023: The parties have reached a tentative settlement
The parties have reached a tentative settlement in this class action. Read the press release here.
You can read the settlement agreement here.
The court must approve the settlement at a hearing that is currently scheduled for February 7th, 2023. Details of that hearing will be posted here when available.
February 9, 2022: Victory! Court of Appeal dismisses the Bank’s appeal!
The Ontario Court of Appeal has dismissed the CIBC’s appeals. A unanimous court upheld Justice Belobaba’s finding that CIBC breached the overtime provisions in the Canada Labour Code. The court also upheld Justice Belobaba’s decision to certify aggregate damages as a common issue. This is a significant win for the plaintiff and will likely put any dispute over the Bank’s liability to rest (unless the Bank attempts to appeal the decision to the Supreme Court of Canada). The next question will be what compensation is owed to members of the class.
You can read the Court of Appeal’s decision here.
September 30, 2021: Appeal heard
The Ontario Court of Appeal has heard CIBC’s appeal and is now working on its decision. The decision will be posted here once it has been released.
May 20, 2021: CIBC appeals Superior Court decisions
CIBC has appealed the three decisions released by Justice Belobaba from the Summary Judgment motion held in December 2019 and June 2020. Justice Belobaba released a Liability Issues decision on March 30, 2020 (see below), a Damages Issues decision on August 10, 2020 (see below), and a Limitations Issue decision on October 21, 2020.
The appeal is scheduled to be heard by the Ontario Court of Appeal on September 28 & 29, 2021.
August 10, 2020: Another positive decision from the Superior Court!
Having decided in March that CIBC breached its obligation to pay overtime under the Canada Labour Code, the Ontario Superior Court of Justice has now considered what remedies class members might be entitled to.
Among other things, the Court decided to certify the question of aggregate damages. This means that the plaintiff will be able to argue that the court should determine damages without requiring the thousands of class members to individually advance and prove their claims for overtime. Whether she will succeed on this issue will depend on whether the Court concludes that there is a fair and reasonable way to determine the loss without each individual class member proving their own damages. For example, in some cases it might be possible to determine aggregate damages based on a defendant’s own records.
In this case, the plaintiff has argued that class members’ loss may be determined by relying on time-stamped data from CIBC’s computer systems. She argues that experts will be able to estimate that amount of uncompensated overtime that the class as a whole worked. CIBC has disputed this argument.
In its decision, the Court has agreed to allow the plaintiff’s experts to consider the data. The next step in the proceeding, then, is for the plaintiff’s experts to review CIBC’s data and complete a report. CIBC will then have an opportunity to respond. This process will take several months.
The Court also issued a declaration that CIBC’s overtime policy (which is still in force) is illegal and cannot be used by the bank as a basis to deny compensation.
You can read the Court’s decision here.
Further update: CIBC has indicated that it intends to appeal this decision.
March 30, 2020: Victory! Court finds CIBC breached its overtime obligations
The Ontario Superior Court of Justice has found CIBC liable for breaching its obligation to pay overtime under the Canada Labour Code.
While the Court held that CIBC knew or should have known that it had failed to pay for overtime hours worked, the specific damages owing to any employees have not yet been determined. We hope that CIBC will stop challenging Class members’ overtime entitlements, and enter into a fair, reasonable and expeditious process for determining how much unpaid overtime is owing to class members.
Read the Court’s decision here.
December 13, 2019: Summary judgment motion argued
The motion for summary judgment was argued on December 12, 2019. Justice Belobaba of the Ontario Superior Court of Justice is expected to release a decision in February 2020.
The Toronto Star reported on the summary judgment motion here.
December 9, 2019: Date for summary judgment motion revised
The summary judgment motion is now scheduled for one day, December 12, 2019.
May 2019: New date scheduled for summary judgment motion
The summary judgment motion is now scheduled to be heard in Toronto by the Honourable Justice Edward Belobaba on December 11-13, 2019. The results of the motion will be posted on this website as soon as they are released by the Court.
August 29, 2017: Motion for summary judgment adjourned
In April 2017, CIBC delivered its responding record, which is the evidence the bank will rely on in opposing summary judgment. Ten days prior to that, CIBC disclosed hundreds of new documents to the Plaintiff for the first time, including results from internal surveys of bank employees. This resulted in a series of discussions and motions about disclosure of documents, which are ongoing.
March 9, 2017: Plaintiff files motion for summary judgment
The plaintiff has filed a motion for summary judgment against CIBC. This is a procedure that can be used where a party believes that there is “no genuine issue for trial”. If the judge agrees that there is no genuine issue for trial, the judge can determine all or part of the lawsuit in a summary manner without the need for a full trial.
The motion is scheduled to be heard by the Ontario Superior Court from August 29 to September 1, 2017.
February 13, 2014: Notice of Certification
NOTICE OF CERTIFICATION
On June 26, 2012, the Court of Appeal for Ontario certified the lawsuit of Dara Fresco v. Canadian Imperial Bank of Commerce as a class action. The lawsuit will now proceed to a trial of the common issues on a date to be set by the Court.
Read the CIBC Notice of Certification, which sets out important information for members of this class action.
Read the CIBC Direct Mail Notice that all members of the class action should receive in the mail.
March 21, 2013: Supreme Court refuses leave to appeal
The Supreme Court of Canada has dismissed the employer’s application for leave to appeal. This means that the class action can proceed.
June 26, 2012: Court of Appeal certifies the class action
The Ontario Court of Appeal allowed Dara Fresco’s appeal and certified the class action. Click here to read the decision.
January 21, 2011: Court of Appeal grants permission to appeal
The Ontario Court of Appeal has granted Dara Fresco’s application for leave to appeal. The appeal was heard on November 30 and December 1 and 2, 2011, at the same time as the appeal in the Scotiabank unpaid overtime class action.
September 10, 2010: Divisional Court upholds the decision of Justice Lax
A majority of a panel of the Divisional Court has upheld the decision of Justice Lax regarding certification. A third judge dissented, stating that she would have certified the action. We will seek leave to appeal the decision to the Court of Appeal.
June 18, 2009: Superior Court refuses to certify the class action
Justice Lax of the Ontario Superior Court denied our motion to certify Dara Fresco’s class action. The Court was not satisfied that there was sufficient evidence of systemic wrongdoing and was further of the opinion that the claims of the class members were not sufficiently common to permit the case to proceed as a class action. In particular, the court rejected the argument that the issue of the legality of the CIBC overtime policy was common to all class members and the resolution of the issue would substantially advance the litigation. The court found that the remaining criteria for certification had been met. We will appeal the decision.
Lawyers
Steven Barrett, Peter Engelmann, Louis Century, Jody Brown