Class Action for Unpaid Overtime Certified

In recent years, there have been repeated attempts by Canadian employees to launch class action claims for unpaid overtime against their employers. The Ontario Superior Court certified one of these class actions: a claim against the Bank of Nova Scotia on behalf of over 5,000 employees for approximately $300 million in unpaid overtime.

The Court found that systemic wrongs arose from the bank placing the onus on employees to obtain prior approval for overtime, rather than ensuring that employees were paid overtime after the fact. According to the Court, these systemic wrongs gave rise to common issues among all class members and permitted the certification of the class action.

This decision is at odds with another recent decision of the Ontario Superior Court, in which the Court refused to certify the class action claim of CIBC employees who were claiming $600 million in overtime. There, the Court found that there were no systemic failures to pay overtime, and thus no common issues among the employees involved in the lawsuit.

The CIBC decision is under appeal, and it is expected that the Bank of Nova Scotia will also appeal the decision. The outcome of these cases will have a major impact on the future of class action litigation in the employment context. We will keep readers updated on the status of these appeals.