In June 2012, the Ontario Court of Appeal released two decisions
allowing class action lawsuits to proceed against major Canadian
banks: Fresco v. Canadian Imperial Bank of Commerce, 2012
ONCA 444 (CanLII); and Fulawka v. Bank of Nova Scotia,
2012 ONCA 443 (CanLII). See our previous bulletin - "overtime
class actions given the green light", July 2012.
As noted in our prior bulletin, in Fresco and
Fulawka class members alleged that the overtime policies
and practices of their employer (or former employer) violated the
Canada Labour Code, as well as pleading causes of action
in breach of contract, tort and unjust enrichment. In both cases,
the Court of Appeal was prepared to grant certification on the
grounds that there were allegedly systemic issues, shared by all
class members, with the employer's overtime policies.
The defendants in both Fresco and Fulawka
sought leave to appeal to the Supreme Court of Canada (the
"SCC"). On March 21, 2013, the SCC denied leave to appeal
the Ontario Court of Appeal's decisions. Therefore, these two
class action lawsuits will likely proceed to trial unless they are
settled by the parties in the interim.
Class action lawsuits are notoriously lengthy and expensive,
even if the defendants are successful at the end of the day.
Therefore, even though these cases have not yet been decided on
their merits, they serve as an important reminder for employers to
ensure that their overtime policies and practices comply with
applicable laws and contracts
The foregoing provides only an overview. Readers are
cautioned against making any decisions based on this material
alone. Rather, a qualified lawyer should be consulted.
Unfortunately, reasonable accommodation for employees in the workplace continues to be the source of significant litigation and even today we continue to see outrageous examples of employers behaving badly.
We are now beginning to see reported cases involving charges and subsequent fines laid against employers for failing to provide information, instruction and supervision to protect a worker from workplace violence.
On October 13, 2016, the Supreme Court of Canada denied leave to appeal an Ontario Court of Appeal decision which ordered an employer to pay a former employee 37 months of salary and benefits following termination.
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