In Fulawka v Bank of Nova Scotia, the Ontario Superior Court of Justice certified a class action proceeding against the Bank of Nova Scotia (“Scotiabank”) alleging that 5,000 personal banking officers, financial advisors, and account managers were routinely required to work unpaid overtime.
Scotiabank had attempted to resist the certification of the class and to have pleadings struck on the basis that there was no cause of action for unpaid overtime under the Canada Labour Code (the “Code”) and therefore the claim did not pass the “cause of action” test for certification under the Class Proceedings Act, 1992 (“CPA”). The Court found that while there was no direct cause of action under the Code, the rights and duties in the Code could inform the duties that Scotiabank owed to the plaintiff class. Scotiabank also alleged that there was no common issue among the claims of the class, a prerequisite to certification under the CPA. The Court found that there was evidence of systemic wrongdoing that would if resolved advance the claim of the entire class. This finding stands in contrast to the decision in Fresco v. Canadian Imperial Bank of Commerce, where the Court declined to certify a class proceeding for unpaid overtime on the basis that the claims had no common issue.