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Cindy Fulawka (Tibor Kolley/The Globe and Mail)
Cindy Fulawka (Tibor Kolley/The Globe and Mail)

Overtime lawsuit against Scotiabank gets green light Add to ...

Bank of Nova Scotia has lost a bid to quash a massive class-action lawsuit that claims the bank unfairly denies more than 5,000 of its employees compensation for overtime work.

The bank had appealed an Ontario judge's certification of the lawsuit as a class action last year. In a ruling issued last Friday, a three-judge panel of the Ontario Divisional Court rejected the bank's arguments.

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The judges upheld a February, 2010, ruling from Mr. Justice George Strathy of the Ontario Superior Court, in which he said there was evidence of "systemic wrongs" in Scotiabank's overtime policy, which forces employees to seek approval before they stay after hours.

The claims in the lawsuit, which demands policy changes and $350-million in damages, remain unproven and must still be subjected to a full trial.

Scotiabank said Monday that it would now seek to challenge the latest ruling before the Ontario Court of Appeal. "We're disappointed with the decision of the Divisional Court," spokeswoman Ann DeRabbie said, adding: "We're committed to treating our employees with respect."

The case is one of several similar class actions launched in recent years against Canadian financial institutions about unpaid overtime. The against Canadian institutions follow years of similar cases, and multimillion-dollar settlements, in the United States. Major financial institutions, such as JPMorgan Chase & Co., Morgan Stanley and Merrill Lynch & Co. Inc., have been hit with claims for unpaid overtime.

The lead plaintiff in the Scotiabank case is Cindy Fulawka, who sold mortgages and small-business loans for Scotiabank for almost 20 years, mainly in Saskatchewan. She filed the case in 2007, after hearing about a similar case launched against Canadian Imperial Bank of Commerce.

Ms. Fulawka said she was expected to work at least two hours a day in overtime without pay, sometimes more, skipping lunch and staying well past quitting time to meet sales goals and finish paperwork.

"Although I am frustrated by the delay associated with the bank's appeal, I am more determined than ever to see it through to trial," Ms. Fulawka said in a statement released by her lawyers. "I know my colleagues across the country feel the same way."

Her legal team, which was also behind the CIBC lawsuit, said the ruling was a major boost for the Scotiabank case. (The CIBC case was denied certification.)

"Two levels of court and four judges have now unanimously agreed that Ms. Fulawka and her colleagues are entitled to a trial," said lawyer Louis Sokolov of Sack Goldblatt Mitchell LLP's Toronto office, in an e-mail.

"The doors of the court house are open."

Bank of Nova Scotia (BNS)

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