An Ontario judge says he will issue a ruling likely by February in the largest unpaid overtime lawsuit in Canadian history.

Justice Edward Belobaba told a Superior Court of Justice hearing in Toronto Thursday he would release his decision with reasons to follow, adding that if he finds CIBC practices and polices violated the Canada Labour Code the court must also deal with the mechanics of how individual or aggregate compensation would be calculated and paid out.

Launched in 2007 and seeking $500 million in damages, the Fresco vs. Canadian Imperial Bank of Commerce claim covers thousands of current and former non-management, non-unionized employees of CIBC in Canada who allege the Toronto-based bank unlawfully and systemically denied overtime pay to its employees for work they were routinely required to perform.

Class action certification was fought all the way up to the Court of Appeal in 2013 while recently there was a fight over production of CIBC “theme documents” which dealt with issues of unpaid overtime discussed in employee surveys, with the documents ultimately ordered to be produced. A similar case filed against Scotiabank around the same time, Fulawka vs. the Bank of Nova Scotia, settled for $40 million in 2016.

Teller Dara Fresco who has worked in more than a dozen CIBC branches across Toronto filed the suit against CIBC on behalf of more than 31,000 class members alleging the members have been assigned heavier workloads than can be completed within their standard working hours and that the unpaid overtime situation is widespread at CIBC among non-management employees. The CIBC says its overtime policy is clear, easily accessible to employees and exceeds legislative requirements in Canada.

At Thursday’s summary judgment motion hearing, lawyers for the plaintiffs and defendant summarized cases that have been detailed in voluminous briefs and depositions over the years, with CIBC lawyer Linda Plumpton arguing the plaintiffs are “cherry picking bank-wide policy” and taking isolated documents out of context to support their case.

“The suggestion that you can pull out a couple of references to overtime then suggest a fire needs to be put out should be entirely discounted,” she said.

CIBC lawyers argued that the plaintiffs have failed to provide evidence of systemic deficiencies and that no breach of the code has been established.

Plaintiff counsel David O’Connor said the CIBC failed in its duty to provide an effective overtime system that tracks and records hours worked and prevents the work or provides approvals before or soon after it takes place. He said the company provided no effective guidance to managers to prevent or approve overtime payments calling it a company-wide failure and a “broken system.”

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