Overtime Class Actions: Ontario Court Of Appeal Releases Trilogy Of Judgments


Earlier today, the Ontario Court of Appeal released its highly anticipated trilogy of judgments in the high-profile overtime class action cases of Fulawka v. Bank of Nova Scotia, Fresco v. Canadian Imperial Bank of Commerce and McCracken v. Canadian National Railway Company. Previously, the lower courts had certified the overtime class actions against the Bank of Nova Scotia and CN Railway but had refused to certify the class action against CIBC. The three appeals dealt with the first-level "certification" issue of whether a class action was an appropriate process for resolving these overtime claims. Ultimately, the Ontario Court of Appeal decided to allow the class actions against the Bank of Nova Scotia and CIBC to proceed, while refusing to certify the class action as against CN Railway. In reaching these different outcomes, the Court drew a distinction between the alleged theory of liability for unpaid overtime advanced against the two banks (breach of a policy) and the theory advanced against CN Railway (misclassification of a group of employees as managers) in assessing whether or not there was a sufficient commonality of interest among the proposed class members to warrant the overtime claims proceeding as a class action. In the Bank of Nova Scotia and CIBC decisions, both groups of employees alleged that the banks had implemented overtime policies that imposed more restrictive conditions on receiving overtime pay than those contained in the Canada Labour Code or as provided for under the express or implied terms of individual employment contracts. In particular, the claimants alleged that the overtime policies implemented by the banks created institutional or systemic impediments to overtime pay claims. The Court found that the terms of these overtime policies could support a conclusion before a common issues trial judge that all uncompensated overtime hours were required or permitted by the banks. The Court recognized that, even if individual issues concerning each employee's overtime entitlement (if any) would still remain after the common issues trial, there was sufficient commonality among class members in the CIBC and Bank of Nova Scotia cases that would allow elements of liability to be determined on a class-wide basis. In the CIBC decision, for example, the Court wrote: "The terms and conditions in CIBC's overtime policies governing overtime compensation, and the accompanying standard forms that class members submit...

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