As previously discussed
here, in 2012 the Ontario Court of Appeal certified two class
actions concerning overtime against Canadian banks: Cindy Fulawka v. Bank of Nova Scotia
and Dara Fresco v. Canadian Imperial Bank of
Commerce. Both cases involved allegations that the
respective employer's overtime policy was in violation of the
Code. The Ontario Court of Appeal reviewed the lower
court's contrasting decisions, and determined that the cases
should be certified as class actions, as both presented common
issues regarding whether the overtime policies and practices
prevented certain employees from receiving overtime pay.
Each of CIBC and Bank of Nova Scotia sought leave to appeal the
decision of the Court of Appeal granting certification to the
Supreme Court of Canada. However, the Supreme Court denied
leave to appeal in both cases on March 21, 2013. Accordingly,
the lawsuits will now proceed as class actions on the common
However, and as noted in our prior blog post, the Ontario Court
of Appeal determined that should the class members succeed at
trial, damages would be determined on an individual, and not
aggregate, basis. This means that in order to prove damages,
each individual in the class, whether a current or former employee,
will be required to individually establish any overtime owing to
him or her. This finding is significant, as the two cases
involve approximately 30,000 employees, with damages claimed
against BNS and CIBC amounting to $350 million and $500 million,
The Supreme Court's denial of leave is a strong indication
that an employer's alleged failure to properly frame and
implement overtime policies may result in class action
proceedings. Further, and as we previously discussed, recent
arbitral jurisprudence indicates that the Court of Appeal's
reasoning regarding the policies is being applied to individual
claims regarding overtime policies and entitlements.
Accordingly, we strongly encourage employers to revisit their
overtime policies to ensure that they: (i) meet the statutory
requirements; and (ii) are administered so as to not create a
situation whereby employees are "permitted or suffered"
to perform unauthorized work in excess of applicable overtime
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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