Canada Labour Code - Part III
A class action overtime lawsuit against Scotiabank was certified by the Ontario Superior Court in Fulawka v. Bank of Nova Scotia, 2010 ONSC 1148. The case alleges that some 5,300 sales employees located across Canada are owed overtime going back to 2000. The claim is for $350 million ($250 million in general damages; $100 million in punitive damages).
(Update: A March 30, 2010 commentary on the decision by law firm Fasken Martineau ("The HR Space: BNS Overtime Class Action Certified - Did Employer Policy Create Unworkable "Catch-22"?) can be found here.
A third Canadian banking institution nows finds itself in the cross-hairs of Canadian class action lawyers on the basis of unpaid overtime allegations.
Filed on February 8, 2010, the Rosen v. BMO Nesbitt Burns lawsuit seeks compensation for unpaid overtime for Investment Advisors and Financial Advisers going back to 2002.
The suit was filed in the Ontario Superior Court by Juroviesky and Ricci LLP in Toronto. This firm appears to not be part group of law firms - led by Sack Goldblatt Mitchell LLP and Roy Elliott O'Connor LLP - that are acting for the plaintiffs in the high-profile overtime class actions that have been filed already against CIBC, Scotiabank and CNR.
The claim must be first certified by the court before it proceed as a class action.
The Ontario judge hearing the Scotiabank unpaid overtime class action certification application has reserved his decision, according to this Canadian Press article. (You can read the Statement of Claim here).
The Scotiabank case is the second of the "Big Three" unpaid overtime class action certification appplications to be brought by the same coalition of law firms. read more »
Designated missions/operations that may qualify employees for reservist leave under Canada Labour Code
The federal government introduced an unpaid leave of absence for members of the Canadian reserves (who otherwise qualify) into Part III of the Canada Labour Code in 2008 (Bill C-40).
Among other triggers, reserve members are entitled to the leave in order to take part in:
...an operation in Canada or abroad - including preparation, training,
rest or travel from or to the employee's residence - that is designated
by the Minister of National Defence.
Until recently, it was unclear whether the 2010 Winter Olympic Games was an operation that had been designated by the Minister.
However, as seen on this list of designated missions and operations published by the federal government, the Games have indeed been designated as an operation that may entitle the reserve member for the leave.
Change in circumstances was transfer of business, not termination; no severance owing under Canada Labour Code
Group 4 Falck (Canada) Ltd. and Abdulla (Re) (October 13, 2009, Canada, T. Hodges)
The Conference Board of Canada has issued a report - Working 9 to 9: Overtime Practices in Canadian Organizations - in which two-thirds of the 130 respondents said that staff and management had highlighted overtime compensation concerns in the past year.
The report comes on the heels of overtime lawsuits and/or settlements in the last 18
months involving five high profile companies (CIBC, Scotiabank, CNR, KMPG LLP, PricewaterhouseCoopers LLP).
You can read this article in today's Toronto Star for more information about the report.
The Globe and Mail is reporting that the proposed representative plaintiff will be appealing the Ontario Superior Court of Justice's decision last month refusing to certify an unpaid overtime class action lawsuit against CIBC. You can read the article ("CIBC employee appeals judge's class-action denial", February 19, 2010) here.
As I noted in my post two days ago, the Ontario Superior Court refused to certify an unpaid overtime class action lawsuit against CIBC by its employees. Fresco v. Canadian Imperial Bank of Commerce, 2009 CanLII 31177 (ON S.C.).
The claim for unpaid overtime alleged that CIBC's Overtime Policy (the "Policy") contravened the Canada Labour Code ("CLC') in two key ways:
- it required that employees receive approval in advance from a manager in order to be compensated for overtime hours worked, unless there were extenuating circumstances and approval was obtained as soon as possible afterwards; and
- it provided paid time off at the rate of 1.5 in lieu of monetary compensation, at the option of the employee.
Canada Labour Code overtime provisions read more »