On February 9, 2022, the Court of Appeal for Ontario released its highly anticipated decision in Fresco v. Canadian Imperial Bank of Commerce, 2022 ONCA 115 (Fresco). In Fresco, the Court of Appeal dismissed three appeals brought by CIBC, the defendant in a long-running class action regarding the payment of overtime to class members. The appeals pertain to three decisions made by the motions judge, Justice Belobaba, during the course of cross-motions for summary judgment.
On the first appeal, CIBC asked the Court of Appeal to overturn the motion judge’s decision to grant summary judgment on common issues establishing its liability to class members for unpaid overtime. On the second appeal, CIBC challenged the motion judge’s decision to certify aggregate damages as a common issue at the summary judgment stage, despite this very issue not having been certified as part of the prior certification motion. On the third appeal, CIBC appealed from the motion judge’s refusal to both: (i) grant CIBC a class-wide order respecting limitation periods; and (ii) address CIBC’s constitutional challenge to Section 28(1) of the Class Proceedings Act.
This article examines the aggregate damages and limitations appeals in Fresco, which have broad relevance to class actions practice. While Fresco is an important appellate decision, it also raises a number of important questions, including about the extent to which proposed common issues can be introduced (or re-introduced) when the merits of the already-certified common issues are being determined at a common issues trial.