In the recent decision Fulawka v. Bank of Nova Scotia, the Divisional Court of the Ontario Superior Court of Justice has certified a class action permitting Scotiabank employees to advance their unpaid overtime claims as a group, rather than on an individual basis. Specifically, the plaintiff employees claim that systemic flaws in Scotiabank’s policies and record keeping practices effectively bar them from being paid for overtime that they are required or permitted to work. The class action involves roughly 5000 employees and a claim for $300 million in damages relating to unpaid overtime.
Scotiabank’s policy is to require individual employees to seek management pre-approval before working any overtime. The plaintiff employees point out that the nature of their work, along with pressure from management, prevents them from being able to seek prior approval for overtime hours. According to the employees, they are typically unable to predict in advance when overtime will be required. In the class action, the employees argue that Scotiabank improperly relied on the pre-approval policy to justify refusing to pay overtime.
The employees also claim that by failing to keep a record of the actual hours its employees work, Scotiabank created a systemic impediment for individual employees to prove that they worked overtime hours. At trial, the employees will also ask the Court to determine whether Scotiabank is under a positive duty to record all hours worked by its employees, to appropriately compensate them for overtime actually worked, and to prevent employees from working overtime hours when it does not intend to compensate them.
At trial, the employees will also ask the Court to determine whether it was an implied or express term of their employment contracts that they would be paid for overtime above regular hours, and/or that the Scotiabank would comply with the Canada Labour Code’s overtime requirements.
In its decision, the Divisional Court affirmed that the employees’ claims should proceed by way of a class action, as a class action was the preferable procedure for resolving the common issues in the case. Further, the Divisional Court denied Scotiabank’s request to strike out the employees’ negligence and breach of contracts claims, holding that the trial judge should be entitled to determine whether the employees’ claims in negligence and breach of contract can succeed.
Stay tuned as Pinto Wray James LLP tracks this case as it proceeds through the Ontario court system.
The full text of the Divisional Court decision can be found here: