On February 19, 2010, the Ontario Superior Court of Justice
certified a class action against the Bank of Nova Scotia
(Scotiabank) on behalf of employees claiming overtime pay. The
class consists of about 5,000 front-line sales staff who worked in
retail branches of Scotiabank from January 1, 2000 to the present.
The plaintiff claims current and former employees were routinely
required to work outside of their scheduled hours without pay in
order to fulfill the demands of their jobs. The plaintiff claims
that this was a breach of class members' contracts of
employment with the bank, and a breach of the Canada Labour
Code, R.S.C. 1985, c. L.2 as amended. She also pleads unjust
enrichment, breach of the duty of good faith, and negligence.
Justice Strathy distinguished the June 2009 case of Fresco v.
Canadian Imperial Bank of Commerce [2009] O.J. No. 2531, where
Justice Lax denied certification of a claim for overtime by CIBC
employees. Justice Strathy noted that in the CIBC case Justice Lax
determined that there was no evidence of systemic failures to pay
overtime. In contrast, Justice Strathy found that Scotiabank's
overtime policy may have been deficient because it required
pre-approval of work, and because Scotiabank may otherwise have
failed to have "a system in place to protect [employees] from
working unpaid overtime." Justice Strathy certified questions
of whether such duties were owed and, if so, whether they had been
breached, as common issues. While Scotiabank argued that overtime
hours could not be assessed due to a lack of records, the judge
found that an aggregate assessment of damages using statistical
means might fairly compensate class members.
The Fresco v. CIBC decision has been appealed, and it
would not be surprising for the Fulawka v. Bank of Nova
Scotia decision to be appealed as well.
Please click here
(http://subscription.osler.com/rs/ct.aspx?ct=24F7671CD3AE4EE0CDD882AAD52B911891904C81E8AD4)
for a copy of the decision.
Brett Ledger is a senior partner in the Litigation Department in the firm's Toronto office, former Chair of the National Litigation Department and a member of the Class Actions Specialty Group. Laura Fric is a partner in the Litigation Department in the firm's Toronto office. Adam Hirsh is an associate in the Litigation Department in the firm's Toronto Office.
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