Fulawka v. Bank of Nova Scotia 2012 ONCA 443
Practice - Persons who can sue and be sued - Individuals and corporations - Status or standing - Class actions - Aggregate damages
Fulawka was an employee of the Bank of Nova Scotia (Scotiabank), a federally-regulated company governed by the Canada Labour Code. The Code required employers to pay, at minimum, 1.5 times an employee’s normal hourly rate for overtime hours that an employee was “required or permitted” to work. Fulawka, as representative plaintiff, claimed that Scotiabank’s overtime policies gave rise to a breach of contract, breach of a duty of good faith, negligence and unjust enrichment. On behalf of class members, Fulawka sought general and special as well as declaratory and injunctive relief. Fulawka sought to have the action certified as a class action.
The Ontario Superior Court, in a decision reported  O.T.C. Uned. 1148; 2010 ONSC 1148, certified the action as a class proceeding, including a number of common issues. Scotiabank appealed.
The Ontario Divisional Court, in a decision with neutral citation 2011 ONSC 530, unanimously dismissed the appeal. Scotiabank appealed again.
The Ontario Court of Appeal allowed the appeal to a limited extent. The court struck a proposed common issue respecting an aggregate assessment of damages, holding that such an assessment was not available in this case (Class Proceedings Act, s. 24(1)). The court also struck two of the common issues as superfluous. In all other respects, the court dismissed the appeal from the Divisional Court’s order.
Editor’s Note: This case was one of a trilogy of cases dealing with certification of class actions - see also Fresco v. Canadian Imperial Bank of Commerce,  O.A.C. TBEd. JL.007; 2012 ONCA 444 and McCracken v. Canadian National Railway Co.,  O.A.C. TBEd. JL.008; 2012 ONCA 445.