Within days of the latest "Overtime" class action
being filed on behalf of Investment Advisors, Financial
Representatives and Investment Consultants at BMO Nesbitt Burns,
Ontario Superior Court judge George Strathy has granted
certification in the Fulawka v. The Bank of Nova Scotia
Filed on behalf of a class composed of all employees in the
positions of Personal Banking Officers, Senior Personal Banking
Officers, Financial Advisors and Account Managers – Small
Business since January 1, 2000, the claim alleges that the
employees were systemically required to work excess hours to
fulfill the "customer-oriented" duties of their job, and
that there was no uniform system in place to ensure that such hours
could be properly recorded and paid for. Noting that the Bank had a
duty under the Canada Labour Code to ensure that employees
were properly compensated for all hours that they were
"permitted or required" to work, Justice Strathy
concluded that there was an arguable case before him that that duty
had not been met. In that regard Justice Strathy acknowledged that
his conclusions to some extent "differ from those of Lax, J.
in Fresco v.Canadian Imperial Bank of Commerce
(certification denied,  O.J. No. 2531; appeal pending).
As in the CIBC case, the Bank's Overtime Policy
required pre-approval for any overtime that an employee worked and
intended to be paid for. Unlike the CIBC Policy, however, the
Scotiabank Policy did not, until it was amended in October 2008,
provide for approval to be obtained at the earliest opportunity
after the fact, where it was simply not possible to obtain such
approval ahead of time. Thus, even though Justice Strathy had
before him evidence from the Bank that overtime was frequently
approved after the fact in spite of the pre-approval
stipulation in the Policy, he found that the lack of an
express provision to that effect created a "systemic
impediment" to employees receiving compensation for the hours
they were required to work.
Justice Strathy also found that, at least for most of the period
in question, the lack of a standardized system for recording
overtime, including the banking and use of "lieu" time,
worked unfairly to the disadvantage of the employees. In the
absence of such a system, Justice Strathy accordingly accepted the
evidence of the plaintiff's expert witnesses (notwithstanding
the contrary evidence of the Bank's expert witnesses) that
"there are methods available, including statistical and
sampling methods, that could assist the court in determining the
amount of an aggregate assessment and an appropriate method of
It should also be noted that Scotiabank had itself conducted a
review of its exclusions for overtime entitlement, and in 2008 had
extended the right to claim overtime back to November 2005 to its
"level 6" employees, which included two of the four
classifications in the proposed class. Justice Strathy noted that
"misclassification" cases represent an accepted form of
class action for certification, and that the adjustment for the
level 6 employees did not address entitlement for the full
"class" period in question.
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.
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).