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Big news from Ontario on overtime claims – the Court
of Appeal will allow claims for statutory overtime by CIBC and Bank
of Nova Scotia employees to proceed as class actions.
Fortunately for British Columbia employers, such class actions
are still not possible in British Columbia.
CIBC won the first two rounds of the fight, and BNS was hoping
to get the same break at the Ontario Court of Appeal. Instead, both
class action claims have been certified, allowing the overtime
claims on behalf of the banks' employees to proceed.
Subject to appeals to the Supreme Court of Canada, employees of
federally-regulated employers have secured a powerful weapon
against their employers.
These cases affect federally-regulated employers across the
country, including in BC. However, provincially-regulated employees
in BC are not able to pursue class actions for statutory overtime
because of an earlier decision of the BC Court of Appeal. The Court
of Appeal decided in Macaraeg that statutory overtime rights
are not enforceable by an action in the courts and are not implied
terms of an employment contract. That means that any claim in BC to
recover overtime under the Employment Standards Act
("ESA") must be pursued through the processes available
under the ESA.
Of course, the fact that indiviudal or class action claims
founded on ESA violations cannot go to court does not give BC
employers a free ride. It is possible for groups of employees to
bring complaints to the ESA, for Employment Standards officers to
initiate complaints on behalf of individual employees or groups of
employees, for representative actions to be brought under the
Human Rights Code (if there is an element of
discrimination), and for other types of class actions.
On the last point, it should be noted that a recent case has
confirmed that temporary foreign workers at Denny's
Restaurants can proceed with a class action claiming a
failure to provide promised work hours, overtime pay (as required
by their contracts of employment - not ESA overtime), and
reimbursement of travel and recruitment expenses. That action is
based on an allegation of systemic breaches of the foreign
workers' employment contracts as opposed to the ESA.
BC employers should watch the CIBC and BNS cases with
sympathetic interest, while ensuring they are meeting the terms of
their employees' contracts and the requirements of the ESA.
In doing so, proactive employers will be well served guaging,
managing and meeting their employees' expectations.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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