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 case.
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, [2009] 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 distribution".
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.
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