The Court of Appeal for Ontario has denied a class action suit seeking overtime pay for investment advisors, ruling that the question of whether overtime pay is warranted can’t be decided as a common issue for all prospective members of the plaintiff class.

In its decision for Brown v. Canadian Imperial Bank of Commerce, the appeal court denied a bid to overturn a lower court decision refusing to certify a proposed class action against CIBC and brokerage subsidiary, CIBC World Markets, Inc. claiming overtime pay on behalf of advisors and assistant advisors.

Back in 2012, the Superior Court of Justice refused to certify the case as a class action, after it concluded that eligibility for overtime pay “could not be determined on a common basis for all members of the proposed class,” which included advisors, their assistants, and analysts. That decision was upheld by the Divisional Court in 2013, after the class was narrowed to just include advisors and their assistants, with no managerial duties. (See Advisor overtime class action hits roadblock,, April 25, 2013.)

The plaintiffs appealed, arguing that the lower courts “misapprehended the relevant evidence and failed to apply the legal principles governing the common issue assessment” required under class action law; and, that there were other common issues that warranted certification of the action.

However, the appeal court dismissed those arguments. “Like the courts below, I think the outcome of the certification motion turned on… specifically, whether eligibility for overtime pay could be certified as a common issue,” wrote Judge David Doherty, in the appeal court’s decision. As well, the appeal courtruled that the lower courts didn’t make any errors in their decisions on this issue.

“The motion judge’s findings are consistent with and supported by the evidentiary record. Indeed, I can find no evidence to support the position put forward by the appellants,” Doherty wrote. “The motion judge’s finding that an employee’s level of autonomy and managerial or supervisory authority cannot be determined by reference to job title or job classification stands on firm evidentiary footing.”

The appeal court dismissed the appeal and affirmed the order of the Divisional Court dismissing the appeal from the motion judge dismissing the motion for certification.