On Thursday, March 21, 2013, the Supreme Court of Canada
dismissed the applications for leave to appeal two decisions of the
Court of Appeal for Ontario with costs: Fulawka v. Bank of Nova Scotia and Fresco v. Canadian Imperial Bank of
Commerce. Both cases are "off the
clock" overtime class actions brought on behalf of certain
bank employees in which it is alleged that their employers'
policies and practices for compensation of overtime work wrongfully
denied them overtime pay under the Canada Labour Code, breached their
employment contracts, and breached a duty of good faith owed to
them by their employer.
In its "overtime trilogy" of decisions released in
June, 2012, the Court of Appeal for Ontario stated that both
motions should "succeed or fail together" and ultimately
determined that both claims should be certified as class
With the Supreme Court's denial of the banks' respective
applications for leave to appeal certification of the actions, the
claims are now slated to proceed to common issues trials on their
merits. While the trial of the common issues, and therefore
any decision on the merits of the claims, is likely far in the
future, as noted in a previous post on our Employment & Pension Law
blog, in light of these decisions, employers may wish
to consider their overtime policies to ensure that they comply with
any relevant statutory requirements.
1.The third decision in the trilogy wasMcCracken v. Canadian National Railway
"misclassification" case in which the main issue was
whether the class members whose positions had been designated
managerial in nature (resulting in an exemption from overtime pay
requirements) were entitled to overtime pay. The Court of
Appeal found that there were too many individual issues and set
aside the certification order.
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