Ontario Court of Appeal certifies class action overtime lawsuits against CIBC, Scotiabank

Appeal court overturns CIBC class action rejection, upholds Scotiabank certification
|employmentlawtoday.com|Last Updated: 07/31/2012

Two class action lawsuits against major Canadian banks for unpaid overtime have been given the green light by the Ontario Court of Appeal.

In one lawsuit, head teller Dara Fresco filed a claim against CIBC in 2007 on behalf of its employees, who claimed the bank’s pre-approval requirement for overtime prevented employees from being paid one and one-half times their regular wages when working extra hours, as required by legislation. Fresco claimed many employees were routinely required or allowed to work overtime without official approval, allowing the bank to avoid paying overtime pay. Both the Ontario Superior Court and Divisional Court found there wasn’t a systemic problem with CIBC’s policy, so each employee’s claim would have to be tried individually on its own facts. As a result, there was no common issue warranting a class action.

In the other lawsuit against Scotiabank — also launched in 2007 — Cindy Fulawka, a long-time personal banker, filed her claim on behalf of more than 5,000 current and former 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. Fulawka demanded $350 million in unpaid overtime for the employees. The class action claim was certified by the Ontario Superior Court of Justice in February 2010, as the court found there may have been a systemic problem with Scotiabank’s overtime policy and there was enough of a common issue to hear the employees’ claims together. Several months later, the Ontario Divisional Court upheld the decision.

The Ontario Court of Appeal heard the appeals of both claims together, as the issues were similar.

The appeal court found both claims had enough merit to be certified to continue as class actions, upholding the lower courts’ decisions in the Scotiabank case and overturning the earlier CIBC decisions.

In overturning the earlier decisions in the CIBC case, the appeal court found the way CIBC applied its overtime approval policy was a common issue for all the employees in the class action, regardless of the facts of the individual circumstances.

“In my view, these alleged differences in individual class members’ experiences are not relevant to the systemic issues raised by (the employees) and do not undercut a finding of some basis in fact for the common issues concerning liability,” said the appeal court. “The terms and conditions in CIBC’s overtime policies governing overtime compensation, and the accompanying standard forms that class members submit when requesting such compensation, apply to all class members regardless of their own particular job responsibilities or job titles.”

The court also looked at a class action suit against CN Rail that claimed certain employees were improperly classified as managers so they wouldn’t be paid overtime. However, the court refused to certify that claim, finding the employees in the class were varied in their duties and departments that prevented any common circumstances.

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