On March 21, 2013, the Supreme Court of Canada denied leave to
appeal the decisions of the Ontario Court of Appeal in Fulawka
v. Bank of Nova Scotia (Fulawka) and Fresco v. Canadian
Imperial Bank of Commerce (Fresco). The practical result is
that the "off-the-clock" overtime class actions against
the Canadian banks will proceed to be considered on their
As discussed in our June 2012 Blakes Bulletin, despite conflicting decisions in the
lower courts, the Ontario Court of Appeal ultimately held that both
cases should be certified as class actions. Specifically, the
Ontario Court of Appeal held that there were common issues relating
to the overtime policies and practices of the defendants, the
determination of which would advance the claims of all class
members. By denying leave to appeal the decisions of the Ontario
Court of Appeal, the Supreme Court of Canada permits the class
actions to move forward, even though both liability and damage
assessments may largely need to be determined on an individual
It remains to be seen whether the decision of the Supreme Court
to green light the overtime class actions will lead to the
commencement of additional "off-the-clock" overtime class
actions in Canada, and how future proceedings in Fulawka
and Fresco may result in the further development of
substantive employment law in the overtime area. In light of this
development, however, Canadian employers would be well advised to
review and monitor their overtime policies and practices to ensure
compliance with applicable laws.
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