Oct 7, 2014
Jennifer Brown, Canadian Lawyer
When job descriptions of a proposed class action overtime case are variable, they don’t have common issues, confirms the Court of Appeal for Ontario.
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.”
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.”