It turns out CIBC and Scotiabank will be required to defend their overtime policies against class actions by employees, according to the Court of Appeal. The banks had successfully defended certification motions in the lower courts on the grounds that the issues were not “common” enough among the banks’ 30,000 employees to warrant class action litigation. However, in a trilogy of cases written by Chief Justice Warren Winkler released yesterday, it has been clarified that where it is the policies of the employer which are in issue, a class action is appropriate.
In the third decision in the trilogy, Chief Justice Winkler found that a proposed class action against CN Rail could not be certified, as it was based on the difference between managers and non-managers, which would have to be assessed on a case-by-case basis.
There are very few employers comparable to the banks in terms of the size and relative uniformity of their workforce, so plaintiff-side class action lawyers may not be able to turn overtime cases into a specialty. However, publicity about these cases will raise employees’ awareness of the issue of overtime entitlements, so we’ll be encouraging our clients to carefully review their overtime policies and the level of consistency in applying those policies.