Smithson: They’re gonna need a bigger boat

A few weeks ago, I happened to read a story about a class action lawsuit against Scotiabank and the classic movie, Jaws, on the same day.

A few weeks ago, I happened to read a story about a class action lawsuit against Scotiabank and the classic movie, Jaws, on the same day.

I couldn’t help thinking there were some parallels between these stories.

In Jaws, actor Roy Scheider played Chief Brody, a New York cop transplanted to Amity Island.

Brody faced an unanticipated crisis in that fictional vacation spot on the fourth of July when a rogue shark began feasting on unsuspecting swimmers.

Brody, who happened to be afraid of the water, ended up aboard the Orca hunting the brute along with actors Robert Shaw (as Quint) and Richard Dreyfuss (as Hooper).

In reality, though they don’t know it initially, the great white was hunting them (nasty creatures, it seems, once you’ve got them angry).

Assigned the lackey’s task of scooping chum into the water to attract the beast, Brody is the first to encounter it close up.  Stunned, he backs into the Orca’s cabin and mutters to Quint, “You’re gonna need a bigger boat.”

That’s what came to mind when I read about the class action against Scotiabank for unpaid overtime being certified by the Ontario Divisional Court.

A class of employees is claiming a cool $300 million in overtime pay.

The initial hurdle in the advancement of a class action involves having the action certified.  In essence, the class of plaintiffs must convince the court that their claims are sufficiently similar in nature that they can be litigated as a group rather than individually.

The certification was initially upheld by a lower court and now by the Ontario Divisional Court.

It seems that this class action has teeth.

There are over 5,000 employees making claims against Scotiabank by way of this class action, led by representative plaintiff Cindy Fulawka.

The Divisional Court’s decision seems to clear the way for the merits of the claims to be litigated.

The employees are asserting that Scotiabank’s policies and practices set up a catch 22—overtime hours would only be pre-approved by management when there was a pressing need to work overtime, but when there was a pressing need to work overtime, there was no opportunity to seek pre-approval.

The effect, according to the employees, was that it was difficult to claim and recover overtime compensation and, as a result, they regularly worked overtime for which they were not appropriately paid.

When there are 5,000 people banding together to advance a class action, it doesn’t take too long for the damages to add up to an astronomical figure like $300 million.

Other employers shouldn’t dismiss this as a unique situation because these potential liabilities can really sneak up on you.

For instance, in a single year, 100 employees earning $20 per hour, each working an average of four hours per week of unpaid overtime, would accumulate a total claim in the range of $625,000.

Undoubtedly, the matter of the certification of the class action will proceed to the Ontario Court of Appeal, where Scotiabank will take a third crack at killing it off.

As with the great white, which destroyed the Orca before finally meeting its demise (“Smile, you son-of-a…”), that may be difficult.  So far, Scotiabank’s boat has been too small for that task.

Incidentally, if you’re wondering what really happens when New Yorkers encounter a shark, an incident near Coney Island a few years ago provided the answer.

The appearance of a shark circling off the New York beach caused a panic and resulted in a bloodthirsty attack.

The attack, however, was on the shark.  It seems that a group of swimmers swarmed the beast, grabbing it and beating it about the head.

A lifeguard leaped into action, rescuing the shark from the angry mob and backstroking it out to sea where he released it.

So, in New York, the sharks don’t attack the swimmers—the swimmers attack the sharks.

Maybe Scotiabank could find a New York lawyer.

This subject matter is provided for general informational purposes only and is not intended as legal advice. Robert Smithson is a labour and employment lawyer and operates Smithson Employment Law in Kelowna. For more information about his practice, or to subscribe to You Work Here, go to:



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