Canadian employers have been watching a series of class action
claims, with employees claiming hundreds of millions of dollars in
unpaid overtime, since 2007. While overtime class action claims are
still not possible in British Columbia (for the reasons discussed
here), claims can balloon in other provinces when a
representative plaintiff claims unpaid overtime for themselves and
on behalf of colleagues.
On August 12, 2014, the Ontario Superior Court of Justice
approved the settlement of one of these overtime class actions,
Fulawka v. The Bank of Nova Scotia. Our colleagues
in Calgary have posted about this recent development
Cindy Fulawka (Fulawka) was employed at various Bank of Nova
Scotia (BNS) branches and held various positions such as Personal
Banking Officer and Account Manager. In 2007, Fulawka, acting as a
representative plaintiff, claimed $250 million in general damages
and a further $100 million in punitive damages on behalf of
approximately 15,000 individuals.
On February 19, 2010, the class action was certified by the
Ontario Superior Court. BNS appealed the certification to both the
Divisional Court and the Court of Appeal of Ontario but was largely
unsuccessful. BNS sought leave to appeal to the Supreme Court of
Canada but was denied. On August 12, 2014, Justice Belobaba
approved the settlement of the action from the bench but has yet to
issue a written decision.
BNS has agreed to pay employees for overtime owed to them but
the exact settlement value is uncertain. However, Fulawka's
counsel has predicted that class members will receive approximately
To assess unpaid overtime, BNS will participate in an informal
but binding procedure in which employees can claim overtime without
any documentation confirming actual hours worked. If BNS and the
employee are unable to agree on the amount owed, an arbitrator will
make a final ruling and is empowered to reasonably estimate unpaid
Lessons for Employers
This case highlights the liability that large employers who
operate in other provinces may face if overtime is systematically
underpaid or withheld. To avoid exposure for unpaid overtime in any
province, employers should take the following steps:
Make sure your employees are properly classified. For example,
ensure that any 'exempt' management or other employees who
are not paid overtime are truly exempt from overtime under
Consider methods to control overtime costs such as averaging
agreements, compressed workweeks, or time off in lieu of overtime
pay, as permitted by applicable legislation.
Keep accurate records of hours worked. Without accurate records
of hours worked, it is much more difficult and costly to defend
Enforce policies with respect to overtime and record-keeping.
If employees work unauthorized overtime or do not record their
hours, respond with appropriate discipline and/or increased
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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