Unpaid overtime class action suit against Bank of Nova Scotia proceeds

Cindy Fulawka, who last December launched a proposed national class action against the Bank of Nova Scotia for unpaid overtime, is a personal banking representative who has worked in several of the bank’s branches in Saskatchewan and Ontario for almost 20 years. In support of her request to certify her claim as a class action, Fulawka has now filed six affidavits from current or former employees of the bank from across Canada, including her own, all of whom allege that they were required to work unpaid overtime by the bank in order to meet their basic job requirements.

Fulawka said, “I was certain that I wasn’t the only person who was forced to work for free. I’m encouraged that other personal banking officers came forward in support.”

The evidence filed by Ms. Fulawka includes that class members had to work over lunch and before and after hours regularly in order to meet their sales targets. In one case, an affiant explains that he was actually demoted by the bank after complaining about his unpaid overtime.

In addition to the evidence from her co-workers, Fulawka has filed three affidavits from experts on issues such as the prevalence of unpaid overtime in the workplace, the ineffectiveness of the enforcement provisions of the Canada Labour Code (to which the bank is subject), and the possibility of determining liability and damages on a class-wide basis through the use of statistical evidence.

Lead counsel for Fulawka and the putative class members are Roy Elliott O’Connor LLP (REO) and Sack Goldblatt Mitchell LLP (SGM). The firms are joined by a team of law firms across the country who will ensure that class members in all provinces are represented.

This action is the second largest employment-related class action ever undertaken in Canada. The first was launched by Dara Fresco in June of last year against CIBC, also for unpaid overtime. REO and SGM are counsel in the CIBC action as well. While the Bank of Nova Scotia lawsuit is entirely new, it alleges many of the same types of problems relating to unpaid overtime as in the CIBC claim. SGM and REO are also lead counsel in an overtime class action against CN Rail launched in April.

Douglas Elliott, a partner of REO, says, “I’m not surprised that we have had such a great response to these two actions given what we are being told about the treatment of these workers. One of our affiants told us that on after-hour ‘call nights’ employees weren’t paid or given dinner. Instead, $20 gift certificates to Harvey’s and Swiss Chalet were given to employees who booked the most client appointments on call nights.”

Elliott notes, “Offering someone a $20 fast food coupon is a poor substitute for paying the overtime the law requires.”

Fulawka is suing the bank for $250 million in general damages for unpaid overtime and for $100 million in punitive damages. The proposed class action covers thousands of current and former non-management, non-unionized employees of the bank who are or were personal or small business bankers working at the bank’s retail branch offices across Canada.

Other class members can request, in strict confidence, more information about the class action at www.unpaidovertime.ca or by calling 1-888-687-2431.