Fulawka v. The Bank of Nova Scotia
Unpaid Overtime Class Action
What this class action is about
On December 10, 2007, Goldblatt Partners LLP and Roy O’Connor LLP filed a class action lawsuit against Scotiabank for unpaid overtime.
The lawsuit covers thousands of current and former non-management, non-unionized employees of Scotiabank who are or were personal bankers or other front-line customer service employees (limited to personal bankers, commercial bankers and account executives) working at Scotiabank retail branch offices across Canada (the “class members”).
The statement of claim alleges that class members are assigned heavier workloads than can be completed within their standard working hours. They are required or permitted to work overtime to meet the demands of their jobs, but Scotiabank fails to pay for the overtime work in direct contravention of the Canada Labour Code under which they are regulated.
The representative of the class action is Cindy Fulawka, a personal banking representative who has worked in several Scotiabank branches in Saskatchewan and Ontario for over 15 years. Based on her own experience, she claims the unpaid overtime situation is widespread at the bank among non-management employees.
March 18, 2016 – The revised settlement has been approved
The parties reached a revised settlement agreement in December 2015 to address class counsel’s complaints about the way in which the claims process under the original settlement was being handled by the Bank. An approval hearing for the revised settlement took place on March 3, 2016 before Justice Belobaba of the Ontario Superior Court of Justice.
Justice Belobaba has now released his decision approving the revised settlement as fair and reasonable and in the best interests of the class. He also approved the legal fees to be paid by the Bank.
Class members who did not make a claim or whose claim was paid in full are not affected by the revised settlement and will not receive any (additional) compensation under the revised settlement.
The revised settlement covers approximately 1600 class members (the “claimants”) whose claims were rejected or partially reduced by the Bank. The revised settlement takes a more streamlined approach to claims than the original settlement, and is aimed at avoiding further delays and risks for the claimants.
The revised settlement gives these 1,600 claimants a percentage of their eligible claim. The percentages to be paid out range from a payout of 25% to 100%, with higher percentages being paid out on the lower total dollar value claims (as detailed in the Judge’s reasons for decision). As a result, the Bank will have to pay $20.6 million more than it has already paid out.
Claimants do not need to submit any additional forms or documentation or take any additional steps to participate in the revised settlement. In particular, claimants are no longer required to pursue an appeal (and the appeal process has been extinguished).
January / February 2016
Please check the bnsunpaidovertime class action website for information on the proposed settlement.
August 13, 2014 – The Court has approved the settlement
The Superior Court of Justice has approved the settlement of this class action.
July 24, 2014 – The parties have reached a settlement
The parties have reached a settlement of the class action. The settlement is subject to court approval, with the judicial approval hearing scheduled to proceed on August 12, 2014 in Toronto.
December 30, 2013 – Legal Notice
OVERTIME CLASS ACTION
FULAWKA V. THE BANK OF NOVA SCOTIA
NOTICE OF CERTIFICATION
THIS NOTICE MAY AFFECT YOUR RIGHTS – PLEASE READ IT CAREFULLY
On June 26, 2012, the Court of Appeal for Ontario upheld the certification of the lawsuit of Cindy Fulawka v. The Bank of Nova Scotia as a class action. The lawsuit will now proceed to a trial of the common issues on a date to be set by the Court.
For more information, see: www.bnsunpaidovertime.ca or contact the law firms listed below.
The Representative Plaintiff, Cindy Fulawka, has sued The Bank of Nova Scotia (“BNS”) for its alleged failure to properly compensate Class Members (as described below) for overtime. Ms. Fulawka alleges that, in failing to compensate Class Members for overtime, BNS:
1. Breached the minimum standards of overtime compensation provided for by the Canada Labour Code;
2. Breached its contracts of employment with the Class Members; and
3. Was unjustly enriched by keeping money for itself that should have been paid to the Class as wages.
Ms. Fulawka also alleges that class members classified as “level 06” by BNS were inappropriately denied eligibility for overtime pay.
The lawsuit asks the Court to award monetary damages to Class Members and to make orders requiring BNS to change its policies and practices relating to overtime compensation.
If the Plaintiff is successful, the Court may, among other things, award compensation to the Class as a whole or direct that compensation be determined individually in respect of the monetary damages.
The Court has not yet determined whether the lawsuit will be successful and a common issues trial date has not yet been set.
Who is included in the Lawsuit?
Class Members are automatically included in a class action once certified, unless they choose to opt-out of the proceeding. This includes Class Members who reside anywhere in Canada, not just Ontario.
By order of the Ontario Superior Court of Justice the Class Members are composed of the following persons:
All current and former full-time personal banking and small business banking employees at BNS retail branches who held one or more of the following positions since 2000 and worked overtime for which they were not compensated:
a. Personal Banking Officer;
b. Senior Personal Banking Officer;
c. Financial Advisor; or,
d. Account Manager Small Business (including its predecessor positions of Account Managers and Account Officers).
If you fall within this Class definition, you will automatically be included in the class action. You may however choose to opt-out of the class action and pursue BNS on your own.
To be excluded from this class action you must send a signed and dated Opt-Out Form to Class Counsel at the address specified below confirming that you do not want to be a part of the lawsuit. Further details on how to opt-out of the lawsuit, and a copy of the Opt-Out Form can be found at www.bnsunpaidovertime.ca or by contacting Class Counsel.
The deadline for opting out is March 31, 2014. If your written request to opt-out is not received by that date you will remain a Class Member.
The Court’s judgment in this matter, whether favourable or not, will bind all Class Members who do not opt-out of the proceeding.
If you wish to participate personally in the lawsuit, please contact Class Counsel or you may apply directly to the Court for permission to do so.
What are the Financial Consequences of the Lawsuit?
There is no cost to you to participate in the lawsuit. If the lawsuit is successful at the common issues trial, the Court may award compensation to the Class as a whole or establish a process, including individual hearings, to decide the claims of individual Class Members. In that case, the Court will determine the amount of legal fees and disbursements for Class Counsel which will be deducted from the total amounts recovered by the Class. In this case, the Plaintiff has received financial support from the Class Proceedings Fund (the “Fund”), which is a body created by statute and designed to allow access to the courts through class actions in Ontario. The Fund has agreed to reimburse the Plaintiff for some disbursements incurred in pursuing this action. The Fund will also be responsible for costs that may be awarded against the Plaintiff in this case. ” In exchange, the Fund will be entitled to recover from any court award or settlement in favour of the class the amount of its funded disbursements (except amounts repaid by the Plaintiff or ordered paid by the Defendant). The Fund is also entitled to 10% of any amounts that may be payable to class members.”
If the class action is unsuccessful, Class Members will not receive any compensation from this lawsuit (and will not be able to start their own lawsuits against BNS in respect of the same issues and claims) but will have no financial obligations in respect of the lawsuit.
The law firms of Roy O’Connor LLP, Sack Goldblatt Mitchell LLP and Sotos LLP have been appointed as Class Counsel by the Court.
For further information about the class proceeding lawsuit please visit www.bnsunpaidovertime.ca or the class counsel:
Roy O’Connor LLP
Attn.: Amanda Grainger
2300-200 Front St. W.
Toronto, ON M5V 3K2
Tel: (416) 362-1989
Fax: (416) 362-6204
Overtime Hotline: 1(888) 687-2431
PLEASE DO NOT CALL THE BANK OF NOVA SCOTIA, THE COURTHOUSE, OR THE REGISTRAR OF THE COURT ABOUT THIS ACTION. THEY WILL NOT BE ABLE TO ANSWER YOUR QUESTIONS ABOUT THE LAWSUIT
This notice is published pursuant to the section 17 of the Ontario Class Proceedings Act, 1992 and was approved by the Court.
For more information, you can read the Long Form Notice of Certification and the Opt Out Form.
March 21, 2013 – Supreme Court refuses permission to appeal
The Supreme Court of Canada has dismissed the employer’s application for leave to appeal. This means that the class action can proceed.
June 26, 2012 – Court of Appeal dismisses bank’s appeal
The Ontario Court of Appeal has dismissed Scotiabank’s appeal. Click here to read the decision.
June 3, 2011 – Divisional Court dismisses bank’s appeal
Scotiabank’s appeal to the Divisional Court has been dismissed.
February 19, 2010 – The class action has been certified
The Ontario Superior Court of Justice certified the action, which means it will proceed as a class action.