March 9, 2017
The plaintiff has filed a motion for summary judgment against CIBC.
Summary judgment is a procedure that can be used where a party believes that 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.
March 21, 2013
Supreme Court leave to appeal dened CIBC
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 (now Goldblatt Partners 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.
December 6, 2011
Court of Appeal decision reserved icts
The Appeals in this matter was heard by the Ontario Court of Appeal (Winkler CJO, Lang and Watt JJ.A.) on November 30 and December 1 and 2, 2011. The Court of Appeal reserved its decision.
September 15, 2011
Appeal date set
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 been now rescheduled to November 30 and December 1, 2011.
January 25, 2011
The Court of Appeal releases decision its with respect to the plaintiff's motion for leave to appeal the split decision of the Divisional Court
On January 21, 2011, the Court of Appeal decision released its 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 time for the appeal will be scheduled in due course.
November 5, 2010
Plaintiff has applied for leave to appeal
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
A three judge panel of the Divisional Court decision icts released 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. Read the dissenting decision of Justice Sachs.
A further appeal lies (with leave) to the Ontario Court of Appeal, which is where many certification decisions in class actions are ultimately decided.
March 29, 2010
Status of Appeal
The appeal was argued on March 24 and 25 and the decision was reserved. We expect the decision will be reserved for several months.
July 20, 2009
Decision to be appealed
June 18, 2009
Court denies certification decision
Justice Lax of the Ontario Superior Court released her decision today denying the motion to certify class action Dara Fresco's.
The Court was not satisfied that there was sufficient evidence of systemic wrongdoing and further of the opinion was 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 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 and are reviewing it carefully. Ms. Fresco has right to appeal the decision to the Divisional Court and will announce her decision shortly.