



COURT OF APPEAL FOR ONTARIO

CITATION: Fresco v. Canadian Imperial Bank
    of Commerce, 2021 ONCA 46

DATE: 20210126

DOCKET: M51965 (C68801) & M51968 (C68649)

Doherty, Zarnett and Coroza
    JJ.A.

BETWEEN

Dara Fresco

Plaintiff

(Respondent/Moving Party)

and

Canadian Imperial Bank of
    Commerce

Defendant

(Appellant/Responding Party)

Louis Sokolov, Jody Brown and David
    OConnor, for the moving party

Linda M. Plumpton, Sarah Whitmore and
    John C. Field, for the responding party

Heard: January 4, 2021 by video conference

Zarnett J.A.

A.

Introduction

[1]

The respondent, Dara Fresco (Ms. Fresco), is the
    representative plaintiff in a class action against the appellant, Canadian
    Imperial Bank of Commerce (the Bank). She moves to quash two aspects of the
    appeals brought by the Bank from the judgment of Belobaba J. (the motions judge),
    made in the context of his disposition of common issues in the action.

[2]

Specifically, Ms. Fresco argues that although
    other aspects of the motions judges judgment are properly appealable to this
    court, those dealing with the effect of limitation periods and aggregate damages
    may only be appealed to the Divisional Court, with leave.

[3]

For the reasons that follow, I would dismiss the
    motions to quash. In my view, the limitations and aggregate damages aspects of
    the motions judges judgment were all part of his judgment on the common issues.
    This court has jurisdiction under s. 30(3) of the
Class Proceedings Act, 1992
,
    S.O. 1992, c. 6 (the 
CPA
), over appeals from a judgment on the
    common issues, and thus over these aspects of the appeals.

B.

The context

(1)

The Action, Its Certification, and the Common
    Issues

[4]

The class represented by Ms. Fresco is comprised
    of approximately 31,000 current and former Bank employees. The action concerns class
    members rights to compensation for overtime worked in the period from 1993 to
    2009.

[5]

Although certification was originally refused by
    the Superior Court and the Divisional Court, upon further appeal to this court,
    the action was ultimately certified as a class proceeding in 2012:
Fresco
    v. Canadian Imperial Bank of Commerce
, 2012 ONCA 444, 293 O.A.C. 248.

[6]

When this court made the certification order, it
    articulated (i.e. certified) eight common issues for determination. Broadly
    speaking, common issues 1 to 5 asked whether the Bank breached a contractual or
    other duty by allowing or encouraging class members to work overtime, not
    properly recording their time, and not ensuring they were properly compensated
    for overtime worked. Common issue 6 asked whether the elements of unjust
    enrichment were established in favour of class members. If the answers to any
    of common issues 1 to 6 were yes, common issue 7 asked what remedies class
    members were entitled to, and common issue 8 asked whether the class was
    entitled to an award of aggravated, exemplary or punitive damages.

[7]

This court did not certify a separate common
    issue about the effect of limitation periods, stating: [t]he issue of
    limitation periods is not an ingredient of the class members claims, but
    instead may be relied on by [the Bank] in its defence: at para. 108.

[8]

As well, this court refused to certify a common
    issue concerning an aggregate assessment of damages, stating that for the
    reasons in
Fulawka v. Bank of Nova Scotia,
2012 ONCA 443
, 111 O.R. (3d) 346, leave to appeal refused
    [2012] S.C.C.A. No. 326, the preconditions in s. 24(1) of the
CPA
for
    ordering an aggregate assessment of monetary relief cannot be satisfied in this
    case: at para. 109.

(2)

The Motions Judges Judgment

[9]

The parties each moved for summary judgment on
    the common issues and for related relief. The motions judge held three hearings
    and issued three sets of reasons.

[10]

In his first set of reasons, the motions judge
    addressed the disposition of common issues 1 through 5, which he denominated
    the liability issues. He found in favour of the plaintiff class on all five
    issues
: Fresco v. Canadian Imperial Bank of Commerce
, 2020 ONSC 75.

[11]

In his second set of reasons, the motions judge
    found in favour of the plaintiff class on issue 6 (unjust enrichment) and on
    issue 7 (remedies), finding that class members are entitled to certain
    declarations as well as to damages. He found against the plaintiff class on
    common issue 8, finding no entitlement to aggravated, exemplary or punitive
    damages. He also certified an additional common issueCan the defendants monetary
    liability be determined on an aggregate basis? If so, in what amount?and
    deferred an answer to that additional issue until a further hearing following
    an exchange of expert reports. He rejected the Banks argument that this
    courts refusal to certify aggregate damages as a common issue, and the
    doctrine of
res judicata
, precluded him from proceeding as he did. He held
    that the decision in
Pro-Sys Consultants Ltd. v. Microsoft Corporation
,
    2013 SCC 57, [2013] 3 S.C.R. 477, gave him that power:
Fresco v. Canadian
    Imperial Bank of Commerce
, 2020 ONSC 4288.

[12]

In his third set of reasons, the motions judge
    rejected the Banks request for a class-wide limitations order barring all
    class members claims before certain dates (2007 in some cases and 2003 in
    others). He held that although the request rested on a plausible procedural
    foundation, as it was advanced as part of the summary judgment motion, the
    banks limitations defence cannot fairly be determined on a class-wide basis
    but, as per the usual practice, should be deferred to the individual hearings
    stage. He also refused to rule on the Banks argument that s. 28 of the
CPA
did not have the effect of suspending the running of limitation periods for
    class members outside of Ontario, as the issue was premature until individual
    hearings were conducted:
Fresco v. Canadian Imperial Bank of Commerce
,
    2020 ONSC 6098, at paras. 9, 22-23, 53 and 57.

[13]

Subsequent to oral argument of these motions to
    quash, counsel provided this court with the formal judgment of the motions
    judge. His answers to the common issues are set out in paragraph 1 and Schedule
    A to the formal judgment, his addition of a common issue regarding aggregate
    damages is set out in paragraph 2, and his rejection of the Banks request for
    a class-wide limitations order is set out in paragraph 3.

(3)

The Appeals

[14]

The Bank has appealed from all of the motions
    judges determinations. Although three notices of appeal were filed (one after
    each set of the motions judges reasons) the appeals have been consolidated and
    will proceed together on all issues subject to the result of this motion.

(4)

The Moving Partys Position

[15]

Ms. Fresco does not dispute that the Bank may
    appeal to this court from the aspects of the judgment that determined common
    issues 1 through 5 (liability), 6 (unjust enrichment), and 7 (remedies), under
    s. 30(3) of the
CPA
.  But she takes the position that the motions
    judges decision to certify an additional common issue concerning aggregate
    damages, and his decision to refuse a class-wide limitations order and to defer
    limitations issues to individual hearings, can only be appealed to the
    Divisional Court with leave.

[16]

With respect to the motions judges
    determination certifying aggregate damages as an additional common issue, Ms.
    Fresco argues that the appeal route is governed by s. 30(2) of the
CPA
[1]
,
in effect at the relevant time, which provided that an
    order certifying a proceeding as a class proceeding may only be appealed to
    the Divisional Court with leave.  If s. 30(2) does not govern, she argues that
    the appeal route is governed by the
Courts of Justice Act
, R.S.O. 1990, c. C.43

(the 
CJA
)
.
Under s. 6(1)(b) of the
CJA
, this court only
    has jurisdiction where the order of Superior Court judge sought to be appealed is
    final. Ms. Fresco submits that as no decision to grant or award aggregate
    damages has yet been made, the motions judges determination was interlocutory.

[17]

With respect to the limitations issue, Ms. Fresco
    argues that s. 6(1)(b) of the
CJA
governs the appeal route. Since the
    motions judge simply deferred limitations questions to the individual hearings
    stage, no final order was made, and this court lacks jurisdiction over the
    appeal on that issue.

C.

Analysis

[18]

I do not accept Ms. Frescos arguments.

[19]

Whether
this court has jurisdiction over an appeal from a judgment or order in a
    class proceeding is a two-step analysis. The first question is whether the
    appeal is from a judgment or order covered by s. 30 of the
CPA
, and if so, whether s. 30 directs the
    appeal to this court. If the order is not one covered by s. 30 of the
CPA
, then whether the appeal lies to this court
    is determined by the provisions of the
CJA
. In the latter circumstance, the primary
    determinant is whether the order is final, as opposed to interlocutory:
Bancroft-Snell
    v. Visa Canada Corporation
,
    2019 ONCA 822, 148 O.R. (3d) 139, at para. 16.

[20]

The version of the
CPA
that governs
    this appeal provided, in s. 30(2) and (3), as follows:

(2) A party may appeal to the
    Divisional Court from an order certifying a proceeding as a class proceeding,
    with leave of the Superior Court of Justice as provided in the rules of court.

(3) A party may appeal to the Court
    of Appeal from a judgment on common issues and from an order under section 24,
    other than an order that determines individual claims made by class.

[21]

For efficiency, the motions judge held three
    hearings and issued three sets of reasons addressing a number of issues. But
    this should not obscure the appropriate focus on the question of the proper
    appeal route. The matters that the motions judge dealt with all arose on
    motions for judgment on the common issues. The determinations he made about limitations
    and aggregate damages were part of his judgment on the common issues. This
    court therefore has jurisdiction over all aspects of the appeals under s. 30(3)
    of the
CPA
. It is not necessary to consider whether, viewed
    discreetly, the determinations of these issues were final or interlocutory, a
    distinction that is not imported into s. 30(3) of the
CPA
.

(1)

Limitations

[22]

Two factors combine to entail the conclusion
    that the limitations aspect of the judgment is appealable as part of the
    judgment on the common issues. First, the limitations issue was raised as a
    defence on a class-wide basis, and second, the motions judge rejected the
    defence as being applicable on a class-wide basis, in the context of his
    disposition of the common issues.

[23]

As was permitted by this court when it certified
    the action as a class proceeding, the limitations issue was raised by the Bank
    as a defence to the claim of the plaintiff class on the common issues. As a
    defence, it was raised to alter or restrict the judgment that would otherwise
    be given on the common issues. The limitations defence, in the form of a
    request for a class-wide limitations restriction, was part of the Banks position
    on the summary judgment motions.

[24]

If the motions judge had accepted the Banks
    defence that, on a class-wide basis, claims before certain dates were statute
    barred, the judgment on the common issues on liability or remedy would have
    reflected that restriction.
[2]
As the defence on a class-wide basis was not accepted, the common issues
    judgment on liability and remedy reflects no class-wide restriction of claims. As
    in any appeal from a judgment, whether a defence should have been accepted and
    altered or restricted the judgment given is fair game for argument on the appeal.
    It is part of the appeal from the judgment itself.

[25]

As much as it may be germane to whether there
    is any merit to the Banks complaint about how the limitations defence was dealt
    with by the motions judge, it is not germane to the appeal route that the
    motions judge said that limitations issues could be raised at the individual
    hearings stage. Answering common issues without giving effect to a defence that
    is asserted to be applicable on a class-wide basis, even while holding that the
    defence may be raised in individual hearings, is still a judgment on the common
    issues for appeal purposes.
[3]

(2)

Aggregate Damages

[26]

Similarly, it is the nature of the power exercised
    by the motions judge to add aggregate damages as an issue, and the context in
    which he exercised it, that entail the conclusion that that aspect of the
    judgment is appealable as part of the judgment on the common issues.

[27]

In certifying aggregate damages as an
    additional common issue, the motions judge did not make an order certifying the
    proceedings as a class proceeding within the meaning of s. 30(2) of the
CPA
.
    Such an order had already been made by this court in 2012. Accordingly, the
    appeal route in s. 30(2) of the
CPA
is inapplicable.

[28]

Nor did the motions judge make an order adding a
    common issue prior to, or in circumstances divorced from, his disposition of
    the common issues. Rather, the motions judge was exercising the power referred
    to by the Supreme Court of Canada in
Pro-Sys Consultants
, where
    Rothstein J. stated, at para. 134:

The ultimate decision as to whether the
    aggregate damages provisions of the
CPA

should be available is
    one that should be left to the common issues trial judge. Further, the failure
    to propose or certify aggregate damages, or another remedy, as a common issue
    does not preclude a trial judge from invoking the provisions if considered
    appropriate once liability is found.

[29]

In other words, the motions judge relied on a
    power that permits the judge deciding the common issues of liability and
    remedy, to add aggregate damages as an additional common issue. His directions
    toward an award of aggregate damages are  therefore part of his judgment on the
    common issues, as is his rejection of the Banks defence to the exercise of
    that power, namely that this courts prior refusal to certify aggregate damages
    as a common issue in this case in the 2012 certification order gave rise to
res

judicata
.

[30]

That the motions judge left, to a further
    hearing, the question of whether  aggregate damages would actually be ordered
    payable, goes to the correctness of his exercise of the power and, perhaps, to
    whether the issue is ripe for appeal, but is not relevant to where the appeal
    lies.

D.

Conclusion

[31]

For these reasons, I would dismiss the motions
    to quash. In accordance with the agreement of the parties, the Bank is entitled
    to its costs of the motions fixed in the sum of $10,000, inclusive of disbursements
    and applicable taxes.

Released: January
    26, 2021 DD

B. Zarnett J.A.

I agree. Doherty J.A.

I agree. S. Coroza J.A.





[1]
Recent amendments to the
CPA

came into effect October 1, 2020 but they do not apply to this proceeding. As
    amended, the
CPA
now directs that
    appeals from orders certifying or refusing to certify a class proceeding be
    brought to this court.



[2]
It would not matter if the answers to the questions of whether the
    Bank had liability and whether there was a remedy in damages appeared in one
    paragraph of the formal judgment and the restrictionthat there was no
    liability or damages  before a certain dateappeared in a different paragraph.
    They would have to be considered together as the judgment on the common issues.



[3]
Just as the judgment on the common issue of remedies, which
    specified a remedy of damages, is properly appealable to this court even though
    no amount is thereby awarded to any person, and even though, absent
    consideration of aggregate damages, individual hearings would be required to deal
    with whether any individual had proven an amount that the Bank would have to
    pay.


