CIBC Unpaid Overtime Class Action

Action for alleged failure to pay overtime against CIBC on behalf of CIBC branches’ front-line customer service employees since 1993.

Court finds CIBC breached its overtime obligations

Read the decision here.

Toronto, Ont. (March 30, 2020) – Today, the Ontario Superior Court of Justice issued reasons for judgment in the long-running unpaid overtime class action lawsuit against Canadian Imperial Bank of Commerce (CIBC). The Court ruled in favour of the class of approximately 31,000 current and former tellers, personal bankers and other front-line workers in retail branches across Canada, finding that CIBC breached its overtime obligations to the Class.

The law firms of Roy O’Connor LLP, Sotos LLP and Goldblatt Partners LLP represent the Class Members in this action.

The class action lawsuit (Dara Fresco v Canadian Imperial Bank of Commerce) was initially launched in 2007, and was the first class action brought in Canada against the overtime policies and procedures of a major Canadian corporation.

In ruling in favour of the Plaintiff Dara Fresco and the Class Members, Justice Edward Belobaba found that, among other things:

…CIBC was careless and indifferent, indeed negligent, about its obligation to comply with the requirements of the [Canada Labour] Code. I can also find that the bank should have known better. It is a multi-billion-dollar financial institution with an able legal staff that can easily advise on the requirements of federal labour law. For some reason this didn’t happen. The bank dropped the ball, to be sure.

Justice Belobaba found that the Bank’s overtime policies and hours-of-work recording practices were unlawful, were system-wide in nature and impeded class member overtime claims. His Honour also found that the Bank “must be found to have permitted (or not prevented) all uncompensated hours of the class members”.

This is great news. I am so pleased that the judge concluded that CIBC has over many years imposed policies that fall short of its legal obligations to pay overtime to CIBC employees”, said Dara Fresco, the representative Class Plaintiff.

According to lead class counsel David O’Connor, Louis Sokolov and Steven Barrett: “This is an excellent decision for the Class Members and employees generally, and some good news for employees at a time when good news for employees and everyone else is in short supply. This was a long, hard fought battle against one of Canada’s largest and most profitable corporations. We are proud of Dara Fresco’s courage. She came forward in 2007 and assumed the role of representative plaintiff while she was still employed at the Bank. Our team now looks forward to the next phase and ensuring that Bank employees are paid appropriately for all of their unpaid hours they worked over the years.”

While the decision finds 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. According to Class counsel, “it is to be hoped that, instead of continuing to challenge Class members’ overtime entitlements, CIBC will accept Justice Belobaba’s straightforward and eloquent reasons, and agree to a fair, reasonable and expeditious process for determining how much unpaid overtime is owing to class members.”

For more information please call: 1-888-687-2431

Updates

Summary judgement motion argued

The Plaintoff’s motion for summary judgment was argued before Justice Belobaba on December 12, 2019. A decision is expected to be released in February 2020.

The Toronto Star reported on the summary judgment motion here.

Date for Plaintiff’s Motion for Summary Judgment revised

The summary judgment motion is now scheduled to be heard in Toronto by the Honourable Justice Edward Belobaba on December 12, 2019. The results of the motion will be posted on this website as soon as they are released by the Court.

New date set for Plaintiff’s Motion for Summary Judgment

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.

Plaintiff’s Motion for Summary Judgment Adjourned

In April 2017, CIBC released many documents to the Plaintiff that the Plaintiff had not seen before. This resulted in a series of discussions and motions about disclosure of documents, which are ongoing. The Plaintiff’s motion for summary judgment has been adjourned to allow the Plaintiff to seek production of further documents from CIBC.

Plaintiff Files Motion for Summary Judgment

March 9, 2017 – The Plaintiff has filed a motion for summary judgment against CIBC. This is a procedure that can be used where a party believes 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

UNPAID OVERTIME CLASS ACTION
FRESCO v CANADIAN IMPERIAL BANK OF COMMERCE

NOTICE OF CERTIFICATION

THIS NOTICE may affect your rights – please read it carefully.
On June 26, 2012 the Court of Appeal for Ontario certified the lawsuit of Dara Fresco v. Canadian Imperial Bank of Commerce (“CIBC”) 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.

For more information, see: www.cibcunpaidovertime.ca or contact the law firms listed below.

The Lawsuit – The Representative Plaintiff Dara Fresco has sued CIBC for its alleged failure to properly compensate Class Members (as described below) for overtime. Ms. Fresco alleges that, in failing to compensate Class Members for overtime, CIBC:

Breached the minimum standards of overtime compensation provided for by the Canada Labour Code;
Breached its contracts of employment with the Class Members; and
Was unjustly enriched by keeping money for itself that should have been paid to the Class as wages.
The lawsuit asks the Court to award monetary damages to Class Members and to make orders requiring CIBC to change its policies and practices relating to overtime compensation.

The Court has not yet determined whether the lawsuit will be successful and a common issues trial date has not yet been set.

Who is included in the Lawsuit?

Class Members are automatically included in a class action once certified, unless they choose to opt-out of the proceeding. This includes Class Members who reside anywhere in Canada, not just in Ontario.

By order of the Court of Appeal for Ontario the Class Members are composed of the following persons (the “Class”)

Current and former non-management, non-unionized employees of CIBC in Canada who worked at CIBC’s retail branches, High Value Cluster offices or Imperial Service offices at any time from February 1, 1993 to June 18, 2009, as tellers or other front-line customer service employees, including the following:

  1. Customer Service Representatives (also formerly known as Tellers);
  2. Assistant Branch Managers (Level 4);
  3. Financial Service Representatives (also formerly known as Personal Banking Associates, Personal Bankers, Senior Personal Bankers and Business Advisors);
  4. Financial Service Associates;
  5. Branch Ambassador;

And other employees who performed the same or similar job functions as the above under a different or previous CIBC job title.

If you fall within this Class definition, you will automatically be included in the class action. You may however choose to opt-out of the class action and pursue any claim on your own.

To be excluded from this class action you must send a signed and dated Opt-Out Form to Class Counsel at the address specified below confirming that you do not want to be a part of the lawsuit. Further details on how to opt-out of the lawsuit, and a copy of the Opt-Out Form can be found at www.cibcunpaidovertime.ca or by contacting Class Counsel.

The deadline for opting out is Tuesday, May 20, 2014. If your written request to opt-out is not received by that date you will remain a Class Member.

The Court’s judgment in this matter, whether favourable or not, will bind all Class Members who do not opt-out of the proceeding.

If you wish to participate personally in the lawsuit, please contact Class Counsel or you may apply directly to the Court for permission to do so.

What are the Financial Consequences of the Lawsuit? There is no cost to you to participate in the lawsuit. If the lawsuit is successful at the common issues trial, the Court will determine what damages or compensation, if any, Class Members are entitled to receive. In that case, the Court will also determine the amount of legal fees and disbursements for Class Counsel which will be deducted from the total amounts recovered by the Class. In this case, the Plaintiff has received financial support from the Class Proceedings Fund (the “Fund”), which is a body created by statute and designed to allow access to the courts through class actions in Ontario. The Fund has agreed to reimburse the Plaintiff for some disbursements incurred in pursuing this action. The Fund will also be responsible for costs that may be awarded against the Plaintiff in this case. In exchange, the Fund will be entitled to recover from any court award or settlement in favour of the class the amount of its funded disbursements (except amounts repaid by the Plaintiff or ordered paid by the Defendant). The Fund is also entitled to 10% of any amounts that may be payable to class members.

Class counsel have been retained on a contingency basis, which effectively means that fees and disbursements will only be paid to Class counsel in the event of success. If the class action is unsuccessful, Class Members will not receive any compensation from this lawsuit (and will not be able to start their own lawsuits against CIBC in respect of the same issues and claims) but will have no financial obligations in respect of the lawsuit.

Class Counsel – The law firms of Roy O’Connor LLP, Goldblatt Partners LLP, and Sotos LLP have been appointed as Class Counsel by the Court.

More Information – For further information about the class proceeding lawsuit please visit www.cibcunpaidovertime.ca or the class counsel:

Roy O’Connor LLP
Attn: Amanda Grainger
2300-200 Front St. W.
Toronto, ON M5V 3K2
Tel: (416) 362-1989
Fax: (416) 362-6204
Email: ag@royoconnor.ca
Website: www.royoconnor.ca

Overtime Hotline: 1(888) 687-2431

PLEASE DO NOT CALL CIBC, THE COURTHOUSE, OR THE REGISTRAR OF THE COURT ABOUT THIS ACTION.

This notice is published pursuant to the section 17 of the Ontario Class Proceedings Act, 1992 and was approved by the Court.