Institutional Impediments. Bennett v Allstate Insurance Company of Canada
In Bennett v Allstate Insurance Company of Canada (Div Court, 2023) the Divisional Court considered a 'delay award' under s.10 of the Automobile Insurance Reg [Reg 664/90] of the Insurance Act [s.289 'Resolution of Disputes'], which reads:
10. If the Licence Appeal Tribunal finds that an insurer has unreasonably withheld or delayed payments, the Licence Appeal Tribunal, in addition to awarding the benefits and interest to which an insured person is entitled under the Statutory Accident Benefits Schedule, may award a lump sum of up to 50 per cent of the amount to which the person was entitled at the time of the award together with interest on all amounts then owing to the insured (including unpaid interest) at the rate of 2 per cent per month, compounded monthly, from the time the benefits first became payable under the Schedule.The court dismissed the appeal as it was limited to 'questions of law' [LATA s.11(1,6)], as it found the issue was one of fact and law (at the highest) - but the case gives some insight into these 'delay award' provisions, which may offer some hope as an disincentive to institutional delay:
 In our view, the appeal raises no question of law. In determining whether an award under s. 10 of the Regulation was warranted, the Adjudicator identified and applied the correct principles. The Appellant does not argue otherwise.. Di Giulio v. Aviva General Insurance Company
 The issues raised by the Appellant, namely: (i) the Adjudicator’s determination that the Respondent did not unreasonably withhold or delay payment of IRB, and (ii) whether the Respondent’s conduct was excessive, imprudent, stubborn, inflexible, unyielding, or immoderate are questions of fact. At their highest, they are questions of mixed fact and law from which no extricable question of law has been demonstrated. As a result, they are not the proper subject of an appeal under the Act.
 The Appellant’s submissions largely relate to the Adjudicator’s assessment of the evidence of the Respondent’s experts. The weighing of evidence and weight to be given to expert testimony by a specialized tribunal is a finding of fact and not a determination of a point of law: Maxwell v. Ottawa (City), 2012 ONSC 7224, at para. 23 (Div. Ct.).
 Further, there was ample evidence in the record before the Adjudicator, including through cross-examination of the Respondent’s expert, to support the factual conclusions arrived at by her. For example, in both the decision and the reconsideration decision, the Adjudicator noted that the Respondent’s expert, Dr. Jaroszynski, was cross-examined about his ability to diagnose chronic pain. In that context, he gave evidence that he did not see cause for “organically based pain” in the Appellant. It was open to the Adjudicator to rely on this evidence in finding that the Respondent did not improperly rely on Dr. Jaroszynski’s report to terminate IRB.
 In addition, the evidence was that the Respondent re-evaluated the Appellant’s claim after receiving and having its assessors consider the reports, including updated reports, received from the Appellant’s assessors, Dr. Ogilvie-Harris, Dr. Bax and Allan Mills.
 As a result, there was no finding of fact by the Adjudicator that would amount to an error of law, namely, a finding that was unsupported by the evidence or that was based on an “irrational inference.” See: Micanovic v. Intact Insurance, 2022 ONSC 1566, at paras. 35-36.
In Di Giulio v. Aviva General Insurance Company (Div Court, 2023) the Divisional Court made an oblique, but realistic, comment regarding the 'power imbalance' between a SABS-insured and the insurance company:
 Lastly, the appellant puts forward the power imbalance between him and the insurance company respondent. That is so. However, I am not persuaded that the opportunity to come to the Divisional Court to challenge interlocutory LAT decisions is a positive step in that regard.. Fresco v. Canadian Imperial Bank of Commerce
In Fresco v. Canadian Imperial Bank of Commerce (Ont CA, 2022) the Court of Appeal addressed the concept of 'institutional impediments' in a bank/overtime-wage class action case. Potential 'institutional impediments' here were bank policies on hourly work reporting which constructively made it more difficult for employees to be paid for overtime (ie. prior employer approval). 'Institutional impediments' in this context can impose additional procedural burdens on the assertion of these rights, purporting to deny the employee the statutory rights unless they complied with the employer's additional requirements. From the 'institution''s point of view even a partial success in the imposition of such policies can result in immediate dollar-savings, all through a simple policy change as people give up on asserting their rights out of fear of losing their employment or 'getting in bad with the boss', coupled with the overall 'nuisance' factor that these policies typically entail:
(2) The motion judge did not err in finding that the Bank’s system-wide overtime policies and record-keeping practices breached its duties under the Code and its regulations
 In considering whether the Bank’s system-wide overtime policies and related practices contravened the requirements of the Code and the regulations under it, the motion judge did not err in finding that (a) the Bank’s 1993 and 2006 Overtime Policies; and (b) the Bank’s record-keeping practices for tracking and compensating overtime hours were “institutional impediments” to the overtime claims of class members.
(a) What is an “institutional impediment”?
 The language of “institutional impediment” draws on the comments of Strathy J. (as he then was) in Fulawka v. Bank of Nova Scotia. He stated: “The understandable need for managers to control overtime costs and the pre-approval requirement in the policy create institutional impediments to claims for overtime pay.” The motion judge echoed this language in the decision below, noting with respect to this court’s certification decision:
Chief Justice Winkler, writing for a unanimous Court, made clear that in order to prevail at the common issues trial, the plaintiff would have to prove that CIBC’s system-wide overtime policy and related practices were “institutional impediments” to class member overtime claims that were otherwise compensable under the Code. In the barest terms, an impediment is “institutional” and therefore systemic if it is a characteristic of the operation of the employment system. When considering whether an employer’s policy or practice serves as an institutional impediment, the operative question is how employees were harmed by it. If the policy creates a systemic hurdle to appropriate compensation, then it operates as an institutional impediment. This is the case even if there were some employees who were not, in practice, denied compensation as a result of the policy.
 In this court’s certification decision, Winkler C.J.O. concluded that the lower courts’ view of the pre-approval policies “ignore[d] the factual assertions in the pleadings about the alleged reality of the workplace in CIBC retail branches.” He noted that the “claim does not turn exclusively or even primarily on the per se legality of the [policies]”. Rather, the alleged breach resulted from the interaction between the policies and the actual work assigned and recorded.
 Ultimately, this court certified the action because “CIBC’s overtime policies governing overtime compensation and the accompanying standard forms that class members submit when requesting such compensation, apply to all class members”. The issue, according to Winkler C.J.O., was “whether CIBC had a duty to implement an overtime system that satisfies its obligations under the Code, and whether its actual system met these obligations”.
 Similarly, in Cavanaugh v. Grenville Christian College, this court upheld a trial decision that found the defendant school to be systemically negligent because it caused harm through its “operational” characteristics. The trial judge had rejected Grenville’s argument that the inflictions of harm were “one-offs” concerning individual students and that the harm was systemic because it flowed from Greenville’s character as an institution. In upholding the trial judge’s treatment of the systemic breach issue, van Rensburg J.A. stated: “The trial judge recognized that systemic negligence involved an assessment of how the school was run – its practices and the extent to which the practices created a risk of harm.”
(b) The Bank’s overtime policies were institutional impediments
 The motion judge summarized the basis for his finding of liability in the following terms: “The bank’s unlawful overtime policies and hours-of-work recording practices were systemic or institutional impediments. That is, they were system-wide in nature and they impeded class member overtime claims that were otherwise compensable under the Code.”
 In other words, the motion judge found that the policies link the class members and their claims and create the class. The Bank’s breach was not systemic because it prevented all employees from receiving overtime compensation; rather, the breach was systemic because the policies acted as an institutional impediment for any employee that earned overtime compensation. The policies imposed additional hurdles on employees seeking overtime compensation systemically across the institution.
 The Bank argues that “the plaintiff’s systemic claim for breach of the class members’ employment contracts could only succeed on the merits if a causal link existed between class members’ claims for uncompensated overtime and CIBC’s policies and practices”. The Bank points out that the overtime policies were applied flexibly and that pre-approval was granted regularly. The Bank referred to evidence of 80 internal audits conducted between 2002 and 2009, 77 of which found no failure to compensate for overtime. The three audits that did find problems led to remedial action.
 The Bank asserts that the motion judge did not have sufficient evidence to conclude that its policies caused any employees to work overtime hours without compensation.
 However, the Bank’s argument misunderstands the motion judge’s reasoning. His approach flows from the systemic nature of the breaches. The Bank’s breaches were systemic because the regular denial of overtime pay resulted from the interaction between the Bank’s overtime policies, the Code, and its workforce. The analysis does not boil down to “an issue of numbers” because it does not depend on the interaction between individual managers and employees. The motion judge expressed the test for liability under the third certified common issue, as: “One, has the plaintiff established that at least some of the class members worked uncompensated overtime? And two, has the plaintiff established that it is more likely than not that these hours of uncompensated overtime work were permitted or not prevented by the defendant bank?”
 We agree with the motion judge’s approach. The class cannot establish that the Bank deprived class members of overtime compensation without first showing that such compensation was due: “What is a breach is failing to pay overtime that is actually owed”.
 To succeed on this aspect of the claim, the respondent did not need to show that every class member was owed overtime compensation, but only that some class members were owed compensation because they were not paid as a result of the operation of the Bank’s overtime policies.
 It was therefore necessary for the motion judge to find that the policies in fact deprived some employees of overtime compensation. He found that some of the class members did work uncompensated overtime. There was ample evidence in the record to support this finding, including an open forum survey, a workplace effectiveness project, and theme reports. This evidence, produced by the Bank, included specific references to Bank employees working overtime hours that were not compensated. For example, the motion judge points to “hundreds of comments” relating to overtime in employee survey evidence produced by the Bank.
 The motion judge’s line of analysis is consistent with other cases analyzing systemic breaches. For example, in Insurance Corp. of British Columbia, the arbitrator found irrelevant the employer’s argument that unpaid overtime was not a “pervasive” issue. The arbitrator wrote that the claim “is not an issue of numbers.” The plaintiff in that case needed only to show that some employees worked beyond their regular hours because the issue was whether the employer “failed to put mechanisms in place to… prevent employees working beyond their regularly scheduled shifts.”
 As we stated above, it is more appropriate to ask how employees were denied overtime compensation than to ask how many employees were denied compensation. Here, the respondent had to show that employees were denied overtime compensation because of the operation of the policies. The motion judge found that she did so. Since the policies impact the class in its entirety, this finding establishes the Bank’s liability to the class as a whole.