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 for a copy of the decision