Ontario Superior Court Certifies Damages in CIBC Class Action Lawsuit

Kristen Zanoni | August 14, 2020

Category: Canada Settlements

Top Class Actions’s website and social media posts use affiliate links. If you make a purchase using such links, we may receive a commission, but it will not result in any additional charges to you. Please review our Affiliate Link Disclosure for more information.

The latest update in the CIBC unpaid overtime class action lawsuit now concerns the court’s determination of damages to be awarded to Class Members. The Ontario Superior Court certified an additional common issue concerning aggregate damages. The Court’s latest decision requires CIBC to produce time-stamped data from its computer systems from which experts hired by the plaintiff will estimate the amount of uncompensated overtime that Class Members worked. The Court will then determine how much money will be awarded to Class Members.

In the Court’s new ruling, although CIBC was found to have been unjustly enriched by not compensating workers for overtime, Justice Edward P. Belobaba decided that restitutionary relief for unjust enrichment is not available, because the claimants have access to compensation in damages under breach of contract.

Nevertheless, the Court ruled in favour of Class Members in that it issued a declaration stating that CIBC’s overtime policy is illegal and can no longer be used as a basis to deny compensation. The next stage of the case, namely the determination as to aggregate damages, will take several months to complete.

CIBC has reportedly indicated that it intends to appeal the Court’s ruling which may further delay the class action lawsuit.

As per the Court’s previous judgement, released March 30, 2020, CIBC was found to have violated its duty to pay overtime to its banking employees. The Ontario Superior Court of Justice decided that the actions of CIBC were in violation of owing overtime pay to employees under the Canada Labour Code. After determining the breach, the Court has ruled that the Class Members are going to be awarded damages due to their losses.

About 31,000 Class Members are included in the class action lawsuit, consisting of current and former tellers, personal bankers and other front-line workers in retail branches across Canada.

As the largest unpaid overtime class action lawsuit in Canada’s history, the case against CIBC began in June 2007. In June 2009, lead plaintiff Dara’s class action lawsuit was denied certification, due to a lack of evidence. However, in June 2012, the class action lawsuit was finally certified. In March of 2017, Dara filed a motion for summary judgement. In April 2017, CIBC finally revealed hundreds of documents to the Court. The discussions and arguments resulting from the disclosed documents led to ongoing analyses. The Class Members alleged they were not paid overtime they were owed by the bank. Thousands of tellers, bankers, and other customer service employees across Canada were affected.

The class action lawsuit alleged that the bank employees were given heftier workloads that forced them to stay at work beyond the typical workday hours. In order to meet the demands of their jobs, they had to work overtime. However, CIBC failed to pay the employees adequate amounts of overtime.

Dara was a teller and personal banking representative with CIBC since 1998. She has worked in over a dozen Toronto CIBC branches. The class action lawsuit states that Dara was obligated to work past her shift hours but was seldom ever paid overtime for the extra hours. According to the class action lawsuit, CIBC did not keep meticulous records of employees’ scheduled and overtime hours.

Finally, in March 2020, CIBC was found by the class action lawsuit to have breached its duties under the Canada Labour Code due to failure to keep records of employee hours and lack of overtime pay.

Regarding the fate of the aggregate damages, the class action lawsuit states: “The availability of aggregate damages and the final quantum, if any, will be determined at a further hearing after the plaintiff’s expert submits his proposed damages report and the defendant bank submits its response. If any specific court orders or directions are needed to expedite the data access and review process, counsel should advise. Costs are deferred to the completion of this matter in its entirety.”

Do you think the Class Members will be awarded a fair amount of damages in the CIBC Unpaid Overtime Class Action Lawsuit? Let us know in the comments.

The Class Members are represented by Steven Barrett, Peter Englemann, and Louis Century of Goldblatt Partners LLP, Louis Sokolov of Sotos LLP, David O’Connor and Adam Dewar of Roy O’Connor LLP.

The CIBC Unpaid Overtime Class Action Lawsuit is Dara Fresco v. Canadian Imperial Bank of Commerce, Case No. 07-CV-334113PD2, in the Ontario Superior Court of Justice, Canada.