Overtime Class Actions and the Special Position of BC Employers

Big news from Ontario on overtime claims - the Court of Appeal will allow claims for statutory overtime by CIBC and Bank of Nova Scotia employees to proceed as class actions.

Fortunately for British Columbia employers, such class actions are still not possible in British Columbia.

CIBC won the first two rounds of the fight, and BNS was hoping to get the same break at the Ontario Court of Appeal.  Instead, both class action claims have been certified, allowing the overtime claims on behalf of the banks' employees to proceed.  Subject to appeals to the Supreme Court of Canada, employees of federally-regulated employers have secured a powerful weapon against their employers.  (Update: The Supreme Court of Canada decided on March 21, 2013 that it will not hear the banks' appeals, so these cases may be going to trial next.)

These cases affect federally-regulated employers across the country, including in BC.  However, provincially-regulated employees in BC are not able to pursue class actions for statutory overtime because of an earlier decision of the BC Court of Appeal.  The Court of Appeal decided in Macaraeg that statutory overtime rights are not enforceable by an action in the courts and are not implied terms of an employment contract.  That means that any claim in BC to recover overtime under the Employment Standards Act ("ESA") must be pursued through the processes available under the ESA.

Of course, the fact that indiviudal or class action claims founded on ESA violations cannot go to court does not give BC employers a free ride.  It is possible for groups of employees to bring complaints to the ESA, for Employment Standards officers to initiate complaints on behalf of individual employees or groups of employees, for representative actions to be brought under the Human Rights Code (if there is an element of discrimination), and for other types of class actions.

On the last point, it should be noted that a recent case has confirmed that temporary foreign workers at Denny's Restaurants can proceed with a class action claiming a failure to provide promised work hours, overtime pay (as required by their contracts of employment - not ESA overtime), and reimbursement of travel and recruitment expenses.  That action is based on an allegation of systemic breaches of the foreign workers' employment contracts as opposed to the ESA.

BC employers should watch the CIBC and BNS cases with sympathetic interest, while ensuring they are meeting the terms of their employees' contracts and the requirements of the ESA.  In doing so, proactive employers will be well served guaging, managing and meeting their employees' expectations.

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