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Supreme Court denies CIBC leave to appeal   

March 21, 2013

This morning, the Supreme Court of Canada denied leave to appeal in the cases of Fulawka v. Scotiabank and Fresco v. Canadian Imperial Bank of Commerce. Both cases are class actions alleging systemic unpaid overtime.

Last June, the Ontario Court of Appeal ruled that both cases should be certified as class actions and allowed to proceed to trial. The banks sought to appeal those judgments to the Supreme Court of Canada. The decision of the Supreme Court of Canada today upholds the ruling of the Ontario Court of Appeal.

The plaintiffs in both cases are represented by the law firms of Roy Elliott O’Connor LLP and Sack Goldblatt Mitchell LLP.

Lead counsel David O’Connor and Louis Sokolov advised that both Cindy Fulawka and Dara Fresco are pleased that the cases and the claims of the class members can now be pressed forward on their merits.

June 26, 2012

The Court of Appeal allowed the plaintiff's appeal and certified the class action. The action will now proceed. Read the story in the Toronto Star.

Court of Appeal reserved its decision

Appeal date set

September 15, 2011

The appeal of the order denying certification was scheduled to be heard on September 14 and 15, 2011. Unfortunately, the Court of Appeal was unable to complete the hearing at that time and the case has now been rescheduled to November 30 and December 1, 2011.

The Court of Appeal releases its decision with respect to the plaintiff’s motion for leave to appeal the split decision of the Divisional Court

January 25, 2011

On January 21, 2011, the Court of Appeal released its decision with respect to the plaintiff’s motion for leave to appeal the split decision of the Divisional Court (upholding the denial of the certification motion). The motion was successful and the plaintiff was granted leave to appeal. A date for the appeal will be scheduled in due course.

Plaintiff has applied for leave to appeal

November 5, 2010

The plaintiff has applied for leave to appeal the split decision of the Divisional Court (upholding the denial of the certification motion) to the Court of Appeal. We are awaiting the decision of the Court of Appeal.

Certification Appeal Denied in Split Decision

September10, 2010

A three judge panel of the Divisional Court released its decision on September 10, 2010. Two judges (Justice Swinton and Justice Ferrier) decided to uphold Justice Lax’s decision denying certification while a third judge (Justice Sachs) would have certified the action. To read the majority decision of Justice Swinton, click here. To read the dissenting decision of Justice Sachs, click here.

A further appeal lies (with leave) to the Ontario Court of Appeal, which is where many certification decisions in class actions are ultimately decided.

Status of Appeal

Decision to be appealed

July 20, 2009

Read the Notice of Appeal

Court Denies Certification Decision

June 18, 2009

Justice Lax of the Ontario Superior Court released her decision today denying the motion to certify Dara Fresco’s class action.

The Court was not satisfied that there was sufficient evidence of systemic wrongdoing and was further of the opinion that the claims of the class members were not sufficiently common to permit the case to proceed as a class action. In particular, the court rejected the argument that the issue of the legality of the CIBC overtime policy was common to all class members and the resolution of the issue would substantially advance the litigation. The court found that the remaining criteria for certification had been met.

We are disappointed by this decision but are reviewing it carefully. Ms Fresco has a right to appeal the decision to the Divisional Court and will announce her decision shortly.

Click here to read the decision.

Contact a member of the national legal team in your province

IMPORTANT NOTE