What employers need to know about why one was certified and one wasn’t
The Ontario Superior Court of Justice’s February 2010 decision in Fulawka v. Bank of Nova Scotia, certifying a class action lawsuit against the Bank of Nova Scotia (Scotiabank) for unpaid employee overtime, may be a cause for puzzlement among some Ontario employers. The decision was released less than a year after another judge in the same court refused to certify a class action against the Canadian Imperial Bank of Commerce (CIBC) in similar circumstances (Fresco v. Canadian Imperial Bank of Commerce). Why did one judge certify the class action while the other did not? Were there factual differences which tipped the balance? What lessons, if any, can employers learn from these two decisions?
