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Class Actions

Ontario court refuses to certify class action based on claims of constructive dismissal and breach of ESA

Jurisdiction: - Ontario
Sector: - Insurance

In Kafka v. Allstate Insurance Company of Canada, 2011 ONSC 2305 - which was issued on April 12, 2011 - the Ontario Superior Court of Justice refused to certify a propsed class action that was based on allegations of:

  • constructive dismissal; and
  • a claim for termination pay and/or severance under the Ontario Employment Standards Act.

The claim pertained to a general announcement letter that Allstate issued on July 24, 2007, to approximately 350 to 450 active agents (employees) in Ontario, advising that effective September 1, 2009 a revised product distribution model and agent compensation system would be implemented.  The new model was then phased in from September 1, 2007 through 2009. 

The court summarized the issue on the certification motion (application), and its decision, as follows:  read more »

Class action claim filed by Denny's employees working in Canada under Temporary Foreign Worker Program

Jurisdiction: - British Columbia

A Notice of Claim under British Columbia's Class Proceeding Act has been filed against Denny's restaurants by employees working in Canada under the Temporary Foreign Workers Program. The employees are originally from the Philippines,

The claim, which covers more than 50 employees, states that Denny's breached the workers' employment contracts by reducing their hours, refusing to pay overtime and failing to pay for their round-trip airfare back to the Philippines.

The Province has a story here: "Filipino workers' class action says Denny's owes $10m" (January 12, 2011).

The Georgia Strait's story is here: "Foreign workers file class-action lawsuit against Denny's restaurants in B.C." (January 11, 2011).  read more »

Split three-judge panel of Ontario Divisional Court upholds decision to not certify CIBC overtime class action

Jurisdiction: - Canada/Federal

In a decision issued on September 10, 2010 - Fresco v. Canadian Imperial Bank of Commerce, 2010 ONSC 4724 - a split three-judge panel of the Ontario Divisional Court upheld the decision of an Ontario Superior Court motion judge to not certify an overtime class action against CIBC.

It looks like the Ontario Divisional Court's decision will now be further appealed to the Ontario Court of Appeal. See this case summary - "Ontario Court Affirms Decision Denying Certification in CIBC Overtime Action" (September 17, 2010) -  by law firm Torys.

My two posts on the original June 2009 decision by the motions judge can be found here and here.

Class action overtime lawsuit against Scotiabank certified by Ontario court

Jurisdiction: - Canada/Federal - Ontario

A class action overtime lawsuit against Scotiabank was certified by the Ontario Superior Court in Fulawka v. Bank of Nova Scotia, 2010 ONSC 1148. The case alleges that some 5,300 sales employees located across Canada are owed overtime going back to 2000. The claim is for $350 million ($250 million in general damages; $100 million in punitive damages).

(Update: A March 30, 2010 commentary on the decision by law firm Fasken Martineau ("The HR Space: BNS Overtime Class Action Certified - Did Employer Policy Create Unworkable "Catch-22"?) can be found here.

Law firm files class action overtime lawsuit against BMO Nesbitt Burns

Jurisdiction: - Canada/Federal

A third Canadian banking institution nows finds itself in the cross-hairs of Canadian class action lawyers on the basis of unpaid overtime allegations.

Filed on February 8, 2010, the Rosen v. BMO Nesbitt Burns lawsuit seeks compensation for unpaid overtime for Investment Advisors and Financial Advisers going back to 2002.

The suit was filed in the Ontario Superior Court by Juroviesky and Ricci LLP in Toronto. This firm appears to not be part group of law firms  - led by Sack Goldblatt Mitchell LLP and Roy Elliott O'Connor LLP  - that are acting for the plaintiffs in the high-profile overtime class actions that have been filed already against CIBC, Scotiabank and CNR.

The claim must be first certified by the court before it proceed as a class action.  

Juroviesky and Ricci LLP's February 10, 2010 news release can be found here, and a blurb on their website can be found here.  read more »

Judge reserves decision in Scotiabank unpaid overtime class action certification application

Jurisdiction: - Canada/Federal - Ontario

The Ontario judge hearing the Scotiabank unpaid overtime class action certification application has reserved his decision, according to this Canadian Press article. (You can read the Statement of Claim here).

The Scotiabank case is the second of the "Big Three" unpaid overtime class action certification appplications to be brought by the same coalition of law firms.   read more »

"Class Action Lawsuits and Employment Law: What You Need to Know"

A lawyer in Ontario at Blaney McMurtry LLP has written a paper entitled "Class Action Lawsuits and Employment Law: What You Need to Know".

BC court rules that employer permitted to reduce post-retirement group benefits, dismissses class action

Topics: - Benefits - Class Actions
Jurisdiction: - British Columbia

In Bennett v. British Columbia, 2009 BCSC 1358, the BC Supreme Court ruled that the employer  - the provincial government - was permitted to reduce post-retirement group benefits, and thus dismissed a class action.  There were approximately 27,000 people in the impacted class.

Law firm Heenan Blaikie has written a summary of the case: "Reduction in Retiree Benefits Sanctioned in British Columbia" (October 7, 2009).

CIBC class action overtime decision to be appealed

Jurisdiction: - Canada/Federal - Ontario

The Globe and Mail is reporting that the proposed representative plaintiff will be appealing the Ontario Superior Court of Justice's decision last month refusing to certify an unpaid overtime class action lawsuit against CIBC. You can read the article ("CIBC employee appeals judge's class-action denial", February 19, 2010) here.

More on the CIBC overtime decision

Jurisdiction: - Canada/Federal - Ontario

As I noted in my post two days ago, the Ontario Superior Court refused to certify an unpaid overtime class action lawsuit against CIBC by its employees. Fresco v. Canadian Imperial Bank of Commerce, 2009 CanLII 31177 (ON S.C.).

The claim for unpaid overtime alleged that CIBC's Overtime Policy (the "Policy") contravened the Canada Labour Code ("CLC') in two key ways:

  1. it required that employees receive approval in advance from a manager in order to be compensated for overtime hours worked, unless there were extenuating circumstances and approval was obtained as soon as possible afterwards; and
  2. it provided paid time off at the rate of 1.5 in lieu of monetary compensation, at the option of the employee.

Canada Labour Code overtime provisions  read more »