I have previously written about the Fresco v. CIBC overtime class action and how the Court declined to certify a class action. The basis for the motion judge's refusal to certify the action as a class action was because the action lacked the essential element of commonality. This decision was appealed to the Divisional Court where a majority of the Divisional Court decided to uphold Justice Lax’s decision denying certification while Justice Sachs would have certified the action.
On the element of commonality, the Divisional Court stated:
In summary, I see no error in principle nor any palpable and overriding error of fact made by the motion judge in reaching her conclusion that the common issues criterion was not met in this case. The motion judge reviewed the extensive evidence provided by the appellant, as well as the respondent, and concluded that there was no evidentiary foundation for any common issues that would advance the litigation. Most importantly, she concluded that the appellant failed to show that there was any evidence of a systemic practice of unpaid overtime at the Bank, and any other issues that might be considered common issues would not significantly advance the litigation. Her conclusions are deserving of deference.
There is little doubt that leave to appeal this decision to the Court of Appeal will be sought.
The Court has recently certified other overtime class actions in Ontario (see Fulawka v. Bank of Nova Scotia - leave to appeal granted and the appeal is scheduled to be heard in December 2010 and McCracken v. Canadian National Railway Company).