July 5, 2023
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
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 27, 2023:
The hearing of the motions for settlement approval, distribution approval and fee approval will take place, via Zoom on March 3, 2023 at 11:00 a.m. (Eastern Standard Time). There will be no in-person hearing.
The Zoom coordinates for the hearing are set out below.
Please note that, while the hearing is being conducted by Zoom, it is still an official proceeding in the Ontario Superior Court of Justice and regular courtroom decorum must be followed. To attend the hearing you must:
- log into the Zoom stream at least 15 minutes before the hearing (10:45 am EST);
- sign into the Zoom stream with your real first and last names;
- turn off your camera and mute your microphone; and,
- do not record the proceeding with any form of recording device.
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To read the materials filed in support of the motions, please click here.
January 18, 2023:
To view a PDF of the Approval Hearing Publication Notice in its entirety, click here.
January 9, 2023:
The settlement approval hearing has now been scheduled for March 3 at 11:00 am.
January 5, 2023: Settlement Reached in CIBC Unpaid Overtime Class Action Lawsuits
The parties have agreed to settle class actions, launched in 2007, by retail branch employees alleging systemic unpaid overtime.
The settlement provides that CIBC will pay a total of $153 million, which will be used to compensate approximately 30,000 class members (current and former front-line retail staff) for unpaid overtime, and also used to pay for legal fees and for the cost of distributing the settlement funds. The settlement must be approved by the Ontario Superior Court before it will become binding. A motion will be brought in February 2023 for approval of the settlement, a plan to distribute the settlement funds and payment of legal fees.
The settlement was reached after 15 years of contested litigation, and months of negotiation, which followed decisions on liability by the Ontario Superior Court and Court of Appeal. The Court left the calculation of compensation and CIBC’s related defences to a further hearing, which will no longer be necessary because of the negotiated settlement.
Dara Fresco, the former CIBC Bank teller, who brought this case in 2007, stated that she is pleased with the settlement. “It is good news for the class to have this case finally resolved”, said Ms. Fresco. “I am very happy that the case is settling. This settlement is a fair compromise that will bring meaningful compensation to thousands of my fellow class members.”
Class Counsel stressed that the settlement will provide for a simple and easy method for class members to be paid. “A big advantage of this settlement is that class members will not have to prove their claims, a task that could be challenging in cases where some claims may go back nearly 30 years.” “We believe that this settlement will put more money into more class members’ hands, a lot sooner, than would happen if the case continued to be fought.”
March 20, 2022: Court finds CIBC breached its overtime obligations
Read the decision here.
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
Ontario Court of Appeal Dismisses CIBC Appeal in Landmark Overtime Suit
In the latest chapter in the long-running unpaid overtime class action lawsuit against Canadian Imperial Bank of Commerce, Ontario’s Court of Appeal has affirmed that CIBC’s overtime policies contravened the Canada Labour Code and other aspects of the Bank’s overtime practices and system were institutional impediments to employees being properly compensated for all hours worked. The Court of Appeal found that CIBC breached its duties to the class on a systemic level and was liable to the class as a whole.
Dara Fresco, a former CIBC Bank teller, and class counsel brought this case in 2007. For the past 15 years, the Bank has vigorously opposed the claims by the employee class, first by arguing that the case should not proceed as a class action and then by arguing that the case should be dismissed on the merits.
In a series of judgments in 2020, Justice Belobaba decided in favour of a class of approximately 35,000 retail bank employees, and ruled that the Bank’s overtime policies and hours-of-work recording practices were unlawful and systemic impediments to compensable claims for overtime pay. In extensive reasons, released today, a unanimous panel of the Court of Appeal agreed with Justice Belobaba. A further hearing is scheduled before Justice Belobaba on September 28, 2022 to determine the question of damages for unpaid hours.
“I’m gratified by the Court’s decision today,” said Ms. Fresco. “CIBC has made enormous profits off the labour of hard-working retail bank employees. Fifteen years is a very long time to wait to be paid what we are owed. My hope is that the Bank’s executives take the Court’s decision to heart and pay what it owes without further delay.”
February 9, 2022: Court of Appeal affirms judgment!
In a ruling today, Ontario’s Court of Appeal has affirmed the Superior Court’s decision that CIBC’s overtime policies are illegal and unenforceable and that the Bank’s deficient record-keeping systems were institutional impediments preventing employees from being properly compensated. The hearing for the determination of damages has been adjourned to February 7 and 8, 2023.
September 30, 2021:
The Ontario Court of Appeal hearing occurred and the Court of Appeal is now working on its decision. The decision will be posted here once it has been released.
September 27, 2021: Zoom link for Court of Appeal hearing
The Ontario Court of Appeal has provided a Zoom link for members of the public who wish to observe the hearing on September 28 and 29th. Click on the link below to join the webinar. Please also make sure to read the caution below.
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August 11, 2021
The appeal by CIBC is scheduled to be heard by the Ontario Court of Appeal on Sep 28-29, 2021.
August 10, 2020
The Court released its ruling on common issues 6-8 in respect of damages and other remedies. The Court certified an additional common issue concerning aggregate damages. This means that CIBC will be required to produce time-stamped data from its computer systems from which experts hired by the plaintiff will estimate that amount of uncompensated overtime that the class as a whole worked. The Court will then determine how much money to award to the class.
In addition, the Court has issued a declaration that says 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 will take a number of additional months to complete. In addition, CIBC has indicated that it intends to appeal the Court’s ruling which may add further delay.
We will continue to try and move this case forward as quickly as possible.
Summary judgement motion argued
The Plaintiff’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:
- Customer Service Representatives (also formerly known as Tellers);
- Assistant Branch Managers (Level 4);
- Financial Service Representatives (also formerly known as Personal Banking Associates, Personal Bankers, Senior Personal Bankers and Business Advisors);
- Financial Service Associates;
- 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
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.