In December 10, 2007, lawyers from Roy O'Connor LLP and our co-counsel Sack Goldblatt Mitchell LLP (and now including co-counsel Sotos LLP) launched a class action lawsuit on behalf of the representative plaintiff Cindy Fulawka, against The Bank of Nova Scotia (Scotiabank) in respect of unpaid overtime. Ms. Fulawka brought the action on behalf of current and former front-line sales staff (limited to Personal Banking Officers, Senior Personal Banking Officers, Financial Advisors or Account Managers Small Business – or their predecessor positions) who worked at any of Scotiabank's retail branches across Canada. Ms. Fulawka's statement of claim alleged that, among other things, Scotiabank failed to compensate her and the other Class Members for the overtime they were required or permitted to work in excess of their standard working hours.
The lawsuit was "certified" as a class proceeding by the Ontario Superior Court of Justice in February 2010. Scotiabank's appeals of the certification decision to Ontario's Divisional Court and Court of Appeal were unsuccessful. In 2013 Scotiabank's motion for leave to appeal to the Supreme Court of Canada was dismissed.
In 2014 (as set out below in Update #5), the parties reached an agreement to settle the class action. That settlement was approved by the Ontario Superior Court of Justice on August 12, 2014 (the "Original Settlement").
Under the Original Settlement, class members were invited to submit claims to the Bank for overtime that had been worked but not paid by the Bank. The deadline to submit claims was October 15, 2014. The Bank was to respond to the claims by November 28, 2014. Class members who were not satisfied with the response from the Bank had the right to appeal the decision to an independent arbitrator, under an appeal process set out in the Original Settlement.
In November and December 2014 (as set out in Update #6), the Representative Plaintiff identified concerns over aspects of the Bank's responses to a number of Class Member claims and brought a motion before the Class Action Case Management Judge to address those concerns. The Bank also brought a motion for an extension to the November 28, 2014 deadline to respond to claims. The Class Action Case Management Judge directed that the appeal process be suspended pending the resolution of the issues to be addressed in the motions.
Update #8 – March 18, 2016 – Revised Settlement Approved
Update – On March 3, 2016 the Revised Settlement was approved by the Class Action Case Management Judge.
Notice of Settlement – Please click here to view or download a copy of the Court-approved notice summarizing the Revised Settlement.
Reasons for Decision – Please click here to view or download a copy of the Court's Reasons for Decision, released on March 18, 2016, approving the Revised Settlement.
Approval Order – Please click here to view or download a copy of the Court's Order approving the Revised Settlement.
Update #7 – February 12, 2016 – Motion to Approve Tentative Agreement to Revise the Settlement to be Heard on March 3, 2016
February 12, 2016 – As we have noted below, the Plaintiff was bringing a motion to challenge the claims handling process of the Bank in the context of the settlement of this overtime class action. The Bank was bringing a motion to extend the deadline by which it was to have responded to individual class member claims. The written materials for the motions were prepared and served (including extensive materials served by the Plaintiff (counsel for the Plaintiff and Class)).