On March 21, 2013, the Supreme Court of Canada denied leave to appeal the decisions of the Ontario Court of Appeal in Fulawka v. Bank of Nova Scotia (Fulawka) and Fresco v. Canadian Imperial Bank of Commerce (Fresco). The practical result is that the "off-the-clock" overtime class actions against the Canadian banks will proceed to be considered on their merits.
As discussed in our June 2012 Blakes Bulletin, despite conflicting decisions in the lower courts, the Ontario Court of Appeal ultimately held that both cases should be certified as class actions. Specifically, the Ontario Court of Appeal held that there were common issues relating to the overtime policies and practices of the defendants, the determination of which would advance the claims of all class members. By denying leave to appeal the decisions of the Ontario Court of Appeal, the Supreme Court of Canada permits the class actions to move forward, even though both liability and damage assessments may largely need to be determined on an individual basis.
It remains to be seen whether the decision of the Supreme Court to green light the overtime class actions will lead to the commencement of additional "off-the-clock" overtime class actions in Canada, and how future proceedings in Fulawka and Fresco may result in the further development of substantive employment law in the overtime area. In light of this development, however, Canadian employers would be well advised to review and monitor their overtime policies and practices to ensure compliance with applicable laws.