In the recent decision Fulawka v. Bank of NovaScotia, the Divisional Court of the Ontario Superior Court
of Justice has certified a class action permitting Scotiabank
employees to advance their unpaid overtime claims as a group,
rather than on an individual basis. Specifically, the plaintiff
employees claim that systemic flaws in Scotiabank's
policies and record keeping practices effectively bar them from
being paid for overtime that they are required or permitted to
work. The class action involves roughly 5000 employees and a claim
for $300 million in damages relating to unpaid overtime.
Scotiabank's policy is to require individual employees
to seek management pre-approval before working any overtime. The
plaintiff employees point out that the nature of their work, along
with pressure from management, prevents them from being able to
seek prior approval for overtime hours. According to the employees,
they are typically unable to predict in advance when overtime will
be required. In the class action, the employees argue that
Scotiabank improperly relied on the pre-approval policy to justify
refusing to pay overtime.
The employees also claim that by failing to keep a record of the
actual hours its employees work, Scotiabank created a systemic
impediment for individual employees to prove that they worked
overtime hours. At trial, the employees will also ask the Court to
determine whether Scotiabank is under a positive duty to record all
hours worked by its employees, to appropriately compensate them for
overtime actually worked, and to prevent employees from working
overtime hours when it does not intend to compensate them.
At trial, the employees will also ask the Court to determine
whether it was an implied or express term of their employment
contracts that they would be paid for overtime above regular hours,
and/or that the Scotiabank would comply with the Canada Labour
Code's overtime requirements.
In its decision, the Divisional Court affirmed that the
employees' claims should proceed by way of a class action,
as a class action was the preferable procedure for resolving the
common issues in the case. Further, the Divisional Court denied
Scotiabank's request to strike out the employees'
negligence and breach of contracts claims, holding that the trial
judge should be entitled to determine whether the
employees' claims in negligence and breach of contract can
Stay tuned as Pinto Wray James LLP tracks this case as it
proceeds through the Ontario court system.
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