Court Of Appeal To Revisit Overtime Class Action Certification

The Ontario Court of Appeal decided it will hear the appeal in Brown v. Canadian Imperial Bank of Commerce, the Divisional Court's decision affirming Strathy J.'s denial of certification in a proposed "misclassification" overtime class action which we blogged about in the spring. The leave decision represents an unexpectedly quick return of overtime class actions to the Court of Appeal following last year's "overtime trilogy" (Fulawka, Fresco, and McCracken). In the trilogy, the Court of Appeal upheld certification in two "off the clock" class actions, but refused certification in McCracken which, like Brown, concerned allegations that a class of employees had been misclassified as "managerial" and therefore not entitled to overtime compensation. Many observers felt that McCracken could mark the end of "misclassification" overtime class actions in Ontario.