This decision involved an intended class action instituted against the Canadian Imperial Bank of Commerce (“CIBC”) by one of its employees, seeking compensation for allegedly unpaid overtime work. The plaintiff sought damages on behalf of all non-management and non-unionized front-line-service employees of the bank going back to 1993. The plaintiff alleged that CIBC had systematically failed to compensate eligible employees for overtime as required by both the Canada Labour Code and their individual employment contracts. In particular, the plaintiff alleged that CIBC’s overtime policy was illegal because it required overtime to be pre-approved by management. Held: The court refused to certify the claim, finding that there was no sufficient evidence of systemic wrongdoing by CIBC and that the action lacked the elements of commonality necessary for certification under Ontario’s Class Proceedings Act. The Court held that claims for unpaid overtime were individual in nature and should be resolved on an individual basis.

Statement of Claim – 2009 CPC Pleading 56045

Motion Record – 2009 CPCMotion 62188

Factum of the Moving Party – 2009 CPCMotionF 32266

Factum of the Defendant Canadian Imperial Bank of Commerce – 2009 CPCMotionF 32267

Labour and Employment; Public

Macaraeg v. E Care Contact Centers Ltd.

2008 CarswellBC 855 (B.C. C.A.)

This case concerned whether the mandatory overtime provisions of the British Columbia Employment Standards Act ("ESA") are incorporated as a matter of law as terms of non-union employment contracts and whether entitlement to overtime in accordance with such provisions can be pursued by civil court action. The employee had commenced an action pursuant to the British Columbia Class Proceedings Act, alleging that E Care owed its employees overtime wages. Although the British Columbia Supreme Court could not enforce the ESA, the trial judge accepted the employee’s argument that the overtime provisions in the ESA were implied terms of her employment contract. Held: On appeal, the British Columbia Court of Appeal reversed the trial judge’s ruling. The Court held that employees cannot enforce statutory rights to overtime pay in a civil action; the exclusive jurisdiction to enforce the ESA resides exclusively with the British Columbia Director of Employment Standards. The Court also held that, as a matter of law, the minimum overtime pay requirements of the act are not implied terms of a contract of employment.

Notice of Application for Leave to Appeal – 2008 CCELMotion 61468

Notice of Motion for Leave to Intervene – 2008 CCELMotion 61470

Memorandum of Argument on an Application for Leave to Intervene by the Director of Employment Standards – 2008 CCELMotionF 31765

Appellant’s Factum – 2008 CCELFactum 17181

Intervenor’s Factum – 2008 CCELFactum 17183

Respondent’s Factum – 2008 CCELFactum 17182

Appellant’s Reply Factum – 2008 CCELFactum 17184

Civil Practice and Procedure; Torts

MacDonnell v. Halifax Herald Ltd.

2009 CarswellNS 330 (N.S. S.C.)

This decision of the Supreme Court of Nova Scotia is the latest Canadian case to comment on invasion of privacy as a tort. In this case, following an “emergency hearing held by telephone on [a] Friday night”, the Court refused to grant an interim injunction restraining the Halifax Herald from publishing a story using a five-hour recording of a conversation between the Honourable Lisa Raitt, Minister of Natural Resources, and her former press secretary, Jasmine MacDonnell. Ms. MacDonnell commenced an action against the Herald and its reporter, Mr. Mahar. The common law tort of invasion of privacy was one of the claims advanced by the plaintiff. Held: The Court ultimately concluded that the plaintiff had not raised a genuine issue to be determined under the first stage in the test for granting an injunction. Even if it did, the Court would have found the balance of convenience weighed heavily in favour of freedom of the press.

Notice of Action – 2009 CPCPleading 55760

Brief of the Plaintiff – 2009 CPCMotionF 31999

Brief of the Defendants – 2009 CPCMotionF 32000

Supplementary Affidavit of Jasmine MacDonnell – 2009 CPCMotion 61845

Responding Affidavit of Stephen Maher – 2009 CPCMotion 61846

Public; Torts; Civil Practice and Procedure

Williams v. Canada (Attorney General)

2009 CarswellOnt 2378 (Ont. C.A.)

This appeal, heard together with four similar appeals, raised the issue of whether Ontario can be held liable for damages suffered by individuals who contracted SARS during the outbreak in 2003. At the pleading stage, Ontario moved to strike out claim the on the ground that the province did not owe the plaintiff a private law duty of care. The motion judge struck out portions of the claim but refused to strike it out entirely. The plaintiff appealed the order striking out portions of the claim. Ontario cross-appealed the order refusing to strike the claim in its entirety. Held: The Ontario Court of Appeal concluded that Ontario did not owe a private law duty of care to the plaintiff and that the claim had no prospect of success. Accordingly, the plaintiff’s appeal was dismissed and the claim was struck in its entirety.

Notice of Appeal – 2009 MPLRMotion 61849

Factum of the Plaintiff/Appellant – 2009 MPLRMotionF 32004

Factum of Her Majesty the Queen in Right of Ontario – 2009 MPLRMotionF 32005

Factum (of the Plaintiff/Appellant/Respondent by Cross Appeal) – 2009 MPLRMotionF 32006

Public; Torts; Insurance

Zsoldos v. Canadian Pacific Railway

2009 CarswellOnt 253 (Ont. C.A.)

The Ontario Court of Appeal recently considered the standard of care applicable to railway companies and whether or not compliance with industry standards is justification for conduct which would otherwise be negligent. The respondent was riding his motorcycle home when he collided with a Canadian Pacific freight train. He failed to see the train until it was too late to avoid a collision. The respondent slid under the train and lost both arms and a leg. The crossing had only a passive warning system consisting of two cross bucks covered with reflective tape; however, it met all minimum safety requirements. At trial, the judge found Canadian Pacific 75% negligent and assessed the respondent’s contributory negligence at 25%. Canadian Pacific appealed. Held: The Court of Appeal upheld the trial court’s decision. Mere compliance with the statutory framework did not exhaust the standard of care. Conformity with standard practice did not insulate Canadian Pacific from negligence when the practice itself was negligent. It was open to the trial judge to find that Canadian Pacific’s failure to carry out night-time inspections of the crossing was negligent.

Notice of Appeal - 2009 CCLIPleading 53337

Supplementary Notice of Appeal - 2009 CCLIPleading 53338

Factum of the Appellants – 2009 CCLIFactum 16435

Factum of the Respondents – 2009 CCLIFactum 16436

Reply Factum of the Appellants – 2009 CCLIFactum 16437

Respondents’ Answer to the Appellants’ Reply Factum – 2009 CCLIFactum 16438

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