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 Canad. Ms. Fulawka’s statement of claim alleged that, among other things, Scotiabank failed to compensate her and the other Class Member 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.
New! 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.
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)).
In December 2015 the parties engaged in a mediation (meetings to explore the possibility of settling the motions) before a retired judge and experienced mediator. At the conclusion of that mediation the parties reached a tentative agreement which must be presented to the presiding judge (Justice Belobaba) for approval.
The approach in the Revised Settlement is more streamlined (involving the establishment of a $20.6 million settlement fund and fixed thresholds of payout) and avoids further significant delays and risks for class members. If the Revised Settlement is approved by the Court, the approximately 1,600 Class Members whose claims were reduced or denied will be paid a percentage (as set out in court-approved notice below) of their eligible claim without the need to pursue an appeal (rights of appeal are extinguished under the Revised Settlement).
This court-approved Notice summarizes the key terms of the proposed Revised Settlement and explains how Class Members can comment on the proposed revisions to the Original Settlement in advance of the approval hearing to be heard in Toronto on March 3, 2016. Click here to view or download a copy of the court-approved Notice of the Proposed Revised Settlement.
Update #6 – December 2014 – Hearing of Plaintiff’s Motion to Review Claims Process, the Bank’s Motion for an Extension of the Claims Processing Deadline & Suspension of the Claims Appeal Deadline
In response to, among other things, a higher than anticipated number of potential appeals from class members, the Plaintiff identified some potential issues with the Bank’s claims handling processes. The Plaintiff will, on a date to be set by the Court, bring a motion to the Class Action Case Management Judge to address those issues. The Plaintiff may seek a variety of relief aimed at, among other things, simplifying the appeals process.
The Bank did not, further to paragraph 25 of the court-approved claims process, respond to all claimants by November 28, 2014. The Bank has moved for an extension of that deadline and its motion will be heard at the same time as the Plaintiff’s motion to address any issues arising in the administration of this settlement. The date of those motions will be posted on this website as soon as they are scheduled by the Court.
By order of the Class Action Case Management Judge the 30-day appeal period and prescribed reply period in paragraphs 29 and 30 of the Claims Process Document is suspended until further order of the Court. To view or download a copy of Justice Belobaba’s endorsement suspending the appeal period please click here.
Update #5 – August 2014 - Settlement Approved
Cindy Fulawka and her counsel at the law firms of Roy O’Connor LLP, Sack Goldblatt Mitchell LLP and Sotos LLP are pleased to announce that the settlement in this action was approved by the Ontario Superior Court of Justice on August 12, 2014.
Approval Decision - To view or download a copy of the Judge’s reasons for decision approving the settlement please click here.
Notice of Settlement Approval - To view or download a copy of the Court-approved Notice of Settlement Approval please click here.
Claims Process - To view or download a copy of the agreed upon claim process please click here.
Claims Deadline - The deadline for filing claims with the Bank was October 15, 2014. No further claims will be considered by the Bank.
Avis d’approbation - Pour consulter ou télécharger une copie de l’avis d’approbation du règlement Court-approevd s’il vous plaît cliquez ici.
Formulair de Reclamation - Pour consulter ou télécharger une version française du formulaire de réclamation approuvé par la cour, s’il vous plaît appuyez ici.
Summary of Key Settlement Terms
- under the settlement current and former employees within the Class will be invited and encouraged to submit claims (see link above for a claims form) for any unpaid overtime that was required or permitted by the Bank, regardless of whether it was approved at the time by a manager or not.
- The Claims period will go back as many as 13 years (depending on the limitation period in the Province or territory where the work was performed).
- Claims must be submitted to the Bank by October 15, 2104.
- The claims will be made through a streamlined process, without the need for documentary evidence, and initially evaluated by Scotiabank with a subsequent right to appeal to an independent arbitrator if any class member is not satisfied with the Scotiabank’s review.
- Scotiabank has also committed to ensuring that any Class member who submits a claim will not be subject to any retaliation or adverse consequences, and to instruct its managers and supervisors not to discuss any claims for unpaid overtime with those Class members who may make a claim.
- The settlement provides that there will be no cost to Class Members to make a claim.
- The lawyers for the plaintiff will be paid directly by Scotiabank. Class Members are not required to pay any fees. The amount of Class Counsel’s fees, disbursements and taxes was arbitrated by a recently retired former justice of the Ontario Court of Appeal.
- The Plaintiff has been granted funding and indemnification from an adverse costs award and funding from the Class Proceedings Fund (“CPF”) and the CPF is entitled by law to a levy on any settlement funds.
Update #4 – March 2013 - Scotiabank Denied Leave to Appeal to the Supreme Court of Canada
In March 2013 the Supreme Court of Canada denied Scotiabank’s motion for leave to appeal and confirmed that this action will proceed to trial as a class proceeding: