An Ontario court has again refused to certify an overtime lawsuit brought by investment advisors against CIBC World Markets Inc.

Earlier this week, Ontario’s Superior Court of Justice Divisional Court dismissed an appeal from an earlier decision, which denied class action certification to a proceeding seeking damages for unpaid overtime.

In the initial case, the plaintiffs alleged that CIBC (TSX:CM) and CIBC World Markets misclassified the proposed class members, making them ineligible for overtime. “The motions judge concluded that eligibility for overtime could only be determined on an individual, case by case basis,” the decision says.

In the appeal, the prospective plaintiffs narrowed their class definition, which initially included advisors, associate advisors and analysts, by dropping analysts from the proposed class. However, the divisional court found that the question of eligibility for overtime for the proposed class members “continues to be an issue that must be determined on an individual basis”. As a result, it dismissed the appeal.

The central issue for the court is the question of whether the proposed class members have managerial responsibilities, which means they are not eligible for overtime. But this is not a question that can be determined on a common basis, the court says. “The proposed class definition as amended would serve to exclude some investment advisors and associate investment advisors, but it does not provide a definition that could include any person in the class without the need for further evidence,” it says.

“More importantly, the appellant has failed to show that there is a basis in fact to conclude that eligibility for overtime for members of this proposed class can be determined as a common issue,” it adds.

The court found that, while advisors do perform common functions, they “all enjoy a high degree of autonomy and independence, subject only to regulatory and risk management constraints. Beneath the superficial similarities, they differ significantly in the size and nature of their books of business, compensation, work hours, day-to-day activities and responsibilities.”

“The revised class may include fewer individuals and only two job titles, but the proposed amendment of the class does not resolve the fundamental difficulty identified by the motions judge. The employees still included within the scope of the amended class definition continue to have different and highly individualized job duties,” it concludes.

“Eligibility of IAs and AIAs for overtime compensation can only be determined on an individual case by case basis. Without a determination on the key issue of eligibility at the common issues trial, the rest of the action collapses as a class proceeding,” it says.