Scotiabank class action overtime suit survives challenge by bank

Sound basis for common ground for thousands of employees in $350 million claim: Court
|employmentlawtoday.com|Last Updated: 06/30/2011

The Bank of Nova Scotia’s latest attempt to quash a class action suit for unpaid overtime by employees has been denied by the Ontario Divisional Court and the suit will go to trial.

In 2007, Cindy Fulawka, a long-time employee of Scotiabank, launched a class action suit on behalf of more than 5,000 current and former non-management, non-unionized employees who were or had been personal bankers or other front-line customer service employees at Scotiabank locations across Canada. The claim alleged the employees were given work that couldn’t be completed during regular working hours and they were expected to be on call without being paid for the extra hours. In addition, the bank failed to keep proper records of employee hours, according to the suit. Fulawka demanded $350 million in unpaid overtime for the employees.

In February 2010, the Ontario Superior Court of Justice certified the class action claim, finding there may have been a systemic problem with Scotiabank’s overtime policy, which required pre-approval of overtime work but made it difficult to get that approval before it was needed. The court also noted employees should be paid for extra hours worked, regardless of whether the work was approved or not.

In December 2010, Scotiabank appealed, but, in a unanimous decision this month, a three-member panel of the Divisional Court found the reasons for the certification were sound.

“The motion judge’s conclusions were appropriately anchored in an evidentiary record, keeping in mind that the ultimate question of weight of such evidence is appropriately left to the trial judge,” said the Divisional Court.

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