COURT OF APPEAL FOR ONTARIO

CITATION: Fulawka v. Bank
  of Nova Scotia, 2012 ONCA 443

DATE: 20120626

DOCKET: C54467

Winkler C.J.O., Lang and Watt JJ.A.

BETWEEN

Cindy Fulawka

Plaintiff (Respondent)

and

The Bank of Nova Scotia

Defendant (Appellant)

Martin Sclisizzi, Morton G. Mitchnick, Markus F. Kremer
    and Heather K. Pessione, for the appellant

Louis Sokolov, Steven Barrett, David F. OConnor and J.
    Adam Dewar, for the respondent

Heard: December 1 and 2, 2011

On appeal from the order of the Divisional Court
    (Justices A. Donald K. MacKenzie, Anne M. Molloy, and Alison L. Harvison
    Young), dated June 3, 2011, with reasons reported at 2011 ONSC 530, 337 D.L.R.
    (4th) 319, affirming the order of Justice George R. Strathy of the Superior
    Court of Justice, dated February 19, 2010, with reasons reported at 2010 ONSC
    1148, 101 O.R. (3d) 93.

Table of
    Contents

A.

INTRODUCTION
.
3

(1)

Overview
    of Three Overtime Class Action Appeals Heard by this Court

4

(2)

Overview
    of this Appeal

9

B.

FACTS
.
10

(1)

Overview
    of the Proposed Class Proceeding
.
10

(2)

Scotiabanks
    Overtime Policies During the Class Period
.
11

(3)

Scotiabanks
    System for Recording Hours of Work During the Class Period..

13

(4)

Relevant
Code
Provisions
.
14

(a)

Code
Provisions Requiring Payment of Overtime Wages
.
15

(b)

Record-Keeping
    Requirements under the
Code
.
16

(c)

Procedure
    Established by the
Code
for Enforcing Employees Rights..

16

C.

THE
    MOTION JUDGES REASONS
.
17

(1)

First
    Issue on the Certification Motion: Do the Pleadings Disclose a Cause of Action?

19

(a)

Breach
    of Contract and Unjust Enrichment

19

(b)

Breach
    of a Duty of Good Faith
.
20

(c)

Negligence
    Claim
..
22

(d)

Breach
    of the
Code
Provisions
.
23

(2)

Second
    Issue on the Certification Motion: Do the Claims Raise Common Issues?

25

(3)

Other
    Issues on the Motion: Preferable Procedure and the Litigation Plan.

29

D.

REASONS
    OF THE DIVISIONAL COURT
.
31

E.

ISSUES
    ON APPEAL
.
33

F.

ANALYSIS
.
34

(1)

The
    Appropriateness of the Common Issues Related to Liability
.
35

(a)

Common
    Issues 1 and 2  Breach of Contract Issues
.
39

(b)

Common
    Issues 4, 5 and 6  the Systemic Defect Issues
.
42

(c)

Common
    Issues 7 and 8  Misclassification and Unjust Enrichment

46

(2)

The
    Common Issue Concerning an Aggregate Assessment under s. 24(1) of the
CPA

48

(a)

General
    Principles for Interpreting s. 24(1) of the
CPA
.
51

(b)

Applying
    the General Principles to this Case
.
56

(3)

No
    Error in the Preferable Procedure Analysis
.
64

(a)

Whether
    a Class Action Would be a Fair, Efficient and Manageable Method of Advancing
    the Class Members Claims
.
66

(b)

Whether
    a Class Action is Preferable to Other Reasonably Available Means for Resolving
    the Class Members Claims
.
70

(i)

The
    scope and nature of the alternative forums jurisdiction and remedial powers
.
72

(ii)

The
    accessibility of the alternative proceeding
.
73

G.

CONCLUSION
    AND DISPOSITION
.
75

APPENDIX
.
76

Winkler
    C.J.O.:

A.

INTRODUCTION

[1]

This is one of several proposed class proceedings commenced by employees
    of federally-regulated companies advancing claims for unpaid overtime work. The
    defendant employers in these proceedings are governed by the provisions of the
Canada
    Labour Code
, R.S.C. 1985, c. L-2 (
Code
). The
Code
requires employers to pay, at minimum, 1.5 times an employees normal hourly
    rate for overtime hours that an employee is required or permitted to work.
    The motions to certify these actions as class proceedings have met with
  different fates.

(1)

Overview of Three Overtime Class Action Appeals Heard by this
    Court

[2]

The present proceeding was started by the representative plaintiff,
    Cindy Fulawka (plaintiff or respondent), an employee of the defendant, The Bank
    of Nova Scotia (Scotiabank or appellant). In her amended statement of
    claim, the plaintiff pleads that Scotiabanks policies and practices for
    compensating overtime work performed by members of the putative class
    constitute both a breach of class members contracts of employment and a breach
    of Scotiabanks obligation to act in good faith. On behalf of class members,
    she seeks general and special damages totalling $350 million, as well as
    declaratory and injunctive relief. The motion judge certified the action as a class
    proceeding. His decision was upheld by a unanimous Divisional Court.

[3]

In a similar proceeding commenced by Dara Fresco, an employee of
    Canadian Imperial Bank of Commerce (CIBC), the motion judge refused to
    certify the action as a class proceeding: see
Fresco v. Canadian Imperial
    Bank of Commerce
(2009)
, 84
    C.C.E.L. (3d) 161 (Ont. S.C.). The Divisional Court, in a split decision,
    upheld the order refusing to certify the proceeding: see 2010 ONSC 4724, 103
    O.R. (3d) 659.

[4]

In a third action started by Michael McCracken, an employee of Canadian
    National Railway (

CNR

), against his employer for
    allegedly avoiding its obligations to pay overtime compensation, the motion
    judge certified the action as a class proceeding: see
McCracken v. Canadian
    National Railway Co.
, 2010 ONSC 4520, 3 C.P.C. (7th) 81.

[5]

Members of the same two law firms argued these three certification
    motions on behalf of the different representative plaintiffs.
[1]

[6]

This court granted leave to appeal from the decisions of the Divisional
    Court in the present case (
Fulawka
)
and in
Fresco
. In
McCracken
, there is an appeal and
    cross-appeal as of right to this court from the motion judges order dismissing
    the plaintiff's claim in part under rules 21.01(1) and (3) of the
Rules of
    Civil Procedure
, R.R.O. 1990, O. Reg. 194. Based on a consent order of
    this court, the appeals and cross-appeals as of right in
McCracken
were combined with appeals filed in Divisional Court from the motion judges
    certification order in the same matter.

[7]

Scotiabanks appeal in
Fulawka
was heard consecutively with
    the plaintiffs appeal in
Fresco
. The
McCracken
appeal was
    heard by this court on February 28 and 29, 2012. The reasons in
Fulawka
are being released concurrently with those in
Fresco
, 2012 ONCA 444,

and
McCracken
, 2012 ONCA 445.

[8]

The claim for unpaid overtime in
McCracken
rests on a theory of
    liability that CNR misclassified employees as managers and, by doing so,
    unlawfully avoided its obligation to pay them overtime. In contrast, in the
    class actions against Scotiabank and CIBC, the crux of the representative
    plaintiffs claims is that the overtime policies adopted by their respective
    employers imposed more restrictive conditions for receiving overtime
    compensation than those set forth in the
Code
.

[9]

More particularly, in
Fulawka
and
Fresco
, the
    plaintiffs allege that the overtime policies of the defendant banks conflict
    with private law duties owed by the banks to the employees who comprise the
    proposed classes. The overtime policies required class members to obtain prior
    approval from a manager in order to be compensated for overtime work that they
    were required or permitted to perform. Such a pre-approval requirement, the
    plaintiffs assert, is contrary to the dictates of s. 174 of the
Code
,
    which, they submit, informs the private law duties owed to the class members. Section
    174 of the
Code
stipulates that:

174. When an employee is
required or permitted
to work in excess of the standard hours of work, the employee shall  be paid
    for the overtime at a rate of wages not less than one and one-half times his
    regular rate of wages. [Emphasis added.]

[10]

The
    plaintiffs allege that Scotiabank and CIBC used the pre-approval requirement in
    their overtime polices to avoid their obligation under the
Code
to pay
    for overtime work that was required or permitted by the employer.
In addition, the
plaintiffs
allege that Scotiabank and CIBC failed to implement proper record-keeping
    systems for recording the overtime hours worked by class members.

[11]

The
    motion judges in the Scotiabank and CIBC actions reached conflicting
    conclusions about whether the criteria for certification in s. 5(1) of the
Class
    Proceedings Act, 1992
, S.O. 1992, c. 6 (
CPA
) were satisfied. Subsection
    5(1) imposes five criteria for certifying a class proceeding, which may be
    summarized as follows:

(a) the pleadings disclose a cause of action;

(b) there is an identifiable class;

(c) the claims raise common issues;

(d) a class proceeding would be the preferable
    procedure for the resolution of the common issues; and

(e) there are appropriate representative plaintiffs
    who could produce a workable litigation plan.

[12]

The
    motion to certify the
Fresco
action against CIBC as a class proceeding
    was heard first. The motion judge concluded that the central claim advanced by
    the representative plaintiff is that the pre-approval requirement in CIBCs
    overtime policy is illegal. She concluded that the policy is not illegal and,
    in any event, that a determination of its legality would not significantly
    advance the class members claims for unpaid overtime. According to the motion
    judge, the proposed common issues could not be resolved without examining the employees
    claims for unpaid overtime on an individual basis, thereby defeating the very
    purpose of a class action. In her view, there is no evidentiary foundation demonstrating
    a systemic policy or practice of unpaid overtime at CIBC. Rather, the evidence shows
    only a variety of individual circumstances giving rise to claims for unpaid
    overtime that need to be resolved individually.

[13]

A
    majority of the Divisional Court upheld the motion judges refusal to certify
    the action as a class proceeding, with Sachs J. giving detailed dissenting
    reasons in favour of certifying the action.

[14]

In
    contrast, the motion judge in
Fulawka
held that the criteria for
    certification were met. He was satisfied that there is an evidentiary basis to
    support the claim that Scotiabanks failure to pay overtime is attributable to
    systemic conditions rather than to the purely individual circumstances of class
    members. The systemic wrongs include Scotiabanks imposition of the
    pre-approval requirement for obtaining overtime pay and its failure to
    establish a class-wide procedure to record overtime, which impeded the class
    members ability to obtain compensation for their overtime work. The motion
    judge also concluded that a class action is the preferable procedure for
    resolving the class members claims. This decision was upheld by a unanimous
    Divisional Court.

(2)

Overview of this Appeal

[15]

The
    two overarching issues raised by Scotiabank in its appeal of the Divisional
    Courts decision are: (1) whether the proposed common issues are suitable for
    certification; and (2) whether the class action is the preferable procedure for
    resolving the common issues.

[16]

The
    common issues certified by the motion judge in this action are very similar to
    the common issues that the motion judge refused to certify in
Fresco
:
    see the appendix to these reasons and to the reasons in
Fresco
, which set
    out the proposed common issues.

[17]

The
    courts below attributed the contrasting results in the two cases to the
    different evidence advanced by the plaintiffs in support of their respective
    certification motions. Before this court, Scotiabank asserts that there is no
    material difference in the pleadings or the evidence advanced by the plaintiffs
    in this case and in
Fresco
. The real difference, Scotiabank argues, is
    in the way the motion judges approached the critical question of whether the
    plaintiffs proposed common issues are essentially individual claims for unpaid
    overtime, or if the common issues raise systemic issues that are preferably
    resolved through the mechanism of a class proceeding.

[18]

I
    agree with Scotiabanks position that both certification motions should either
    succeed or fail together. However, in my view, both actions are appropriate for
    certification. With the exception of the issue relating to an aggregate assessment
    of monetary relief under s. 24(1) of the
CPA
, I would answer the
    critical question about the nature of the common issues in the same way as did
    the motion judge in the present case. The proposed common issues raise the
    requisite degree of commonality for purposes of certification. I also agree
    that a class proceeding is the preferable procedure for resolving these issues.
    While I do not agree that an aggregate assessment under s. 24(1) is possible,
    my reasons in this regard do not affect the soundness of the certification
    order.

[19]

For
    the reasons that follow, I would allow in part the appeal by Scotiabank as it
    concerns the proposed common issue relating to the availability of an aggregate
    assessment of damages, but would otherwise dismiss the appeal from the
    Divisional Courts order affirming the certification order.

B.

FACTS

(1)

Overview
    of the Proposed Class Proceeding

[20]

The
    proposed representative plaintiff, Cindy Fulawka, started this action on behalf
    of the more than 5,000 current and former full-time, front-line sales staff who
    held specified positions in any of Scotiabanks Canadian retail branches from
    January 1, 2000 to the present. Class members include all full-time employees
    who held one or more of the following four job titles: personal banking officer,
    senior personal banking officer, financial advisor and account manager small business.
    These employees perform similar, and often identical, work.

[21]

The
    plaintiff alleges that there are three defective features in Scotiabanks
    overtime compensation system:

(1) Scotiabanks overtime policy imposes more restrictive
    conditions for receiving overtime payment than the minimum standards of the
Code
;

(2) Scotiabanks record-keeping systems do not create an
    accurate record of the hours actually worked by class members; and

(3) Scotiabank failed to put in place a system for monitoring
    and preventing employees from working overtime hours that Scotiabank did not
    intend to compensate.

According to the plaintiff, these defective features
    give rise to causes of action in contract, unjust enrichment and tort.

(2)

Scotiabanks Overtime
    Policies During the Class Period

[22]

Scotiabank
    had a written policy on overtime throughout the class period. The policy in
    effect from the beginning of the class period in 2000 to October 1, 2008 (the
    Initial Policy) stated that it was based on Canada Labour Code guidelines.
    Under the Initial Policy, employees were eligible for overtime pay at a rate of
    1.5 times the regular hourly rate if they worked more than eight hours in a
    day, or in excess of the standard 37.5 hour work week, whichever of the two was
    greater. The Initial Policy made it mandatory for overtime hours to be
    authorized in advance by a branch manager or department head. The Initial
    Policy also gave employees the option of requesting time off
in lieu
of overtime pay at a rate of 1.5 times the overtime hours worked. Such a
    request could be granted, on an
exception basis
 (emphasis in
    original).

[23]

Scotiabank
    changed its overtime policy in October 2008 (the Revised Policy), almost a
    year after the commencement of the class action in December 2007. The Revised
    Policy creates an exception to the pre-approval requirement:

If you are eligible for overtime pay, then your
    manager/department head must authorize overtime hours worked in advance.
In
    cases where it is not possible to obtain your managers consent in advance and
    it is critical for you to work overtime, notify your manager of the overtime
    worked at the next earliest opportunity, such as the next business day. Additional
    hours that are requested, permitted or approved by your manager/department head
    will be compensated
.
[Emphasis added.]

[24]

The
    Revised Policy defines overtime hours as requested, permitted or approved
    hours worked by an employee eligible for overtime compensation in excess of
    eight hours per day or in excess of the standard 37.5 hour work week, whichever
    of the two is greater.

[25]

Like
    the Initial Policy, the Revised Policy provides for time off
in lieu
of overtime pay, but it introduced a requirement that
lieu
time is to
    be taken within 90 days of the overtime hours worked, failing which overtime
    pay is to be paid to the employee in place of time off
in lieu
.

[26]

The
    Revised Policy also extended overtime eligibility to employees holding jobs
    that Scotiabank had classified as Level 6  a management-level classification
    of employees who were previously ineligible for overtime. Two of the job
    categories in the proposed class  financial advisor and account manager small business
     were classified as Level 6. Level 6 also includes job categories that are not
    included in the proposed class.

[27]

The
    Revised Policy implemented a simple procedure whereby Level 6 employees could
    claim retroactive compensation for overtime hours worked from November 1, 2005
    to October 1, 2008. Under this procedure, which was administered by the bank's
    human resources department, Scotiabank paid out approximately $5 million in
    retroactive overtime pay to Level 6 employees, including approximately $3
    million to 455 employees who held the positions of financial advisor and account
    manager small business.

(3)

Scotiabanks System for Recording Hours of Work During the Class
    Period

[28]

The
    official record-keeping system at Scotiabank for recording employees hours of
    work has changed several times during the class period. Until January 2006,
    hours of full-time employees were recorded on monthly staff plans that managers
    prepared in advance to reflect the hours that staff were expected to work in
    the coming month. Employees were to review and initial the staff plan each
    month to ensure its accuracy and to add any pre-approved overtime hours that
    they had worked. Time sheets reflecting the actual hours worked were kept for
    part-time staff, but not for full-time staff.

[29]

In
    January 2006, Scotiabank adopted an electronic system to record employees
    vacations and other absences called Absence E-Trac. However, this system was
    not used to track or facilitate the payment of overtime hours.

[30]

In
    January 2009, Absence E-Trac was enhanced so that employees could record
    overtime hours. Employees could also indicate whether they preferred to be paid
    overtime hours or to receive time
in lieu
. Managers would confirm the
    hours claimed by employees and this information was then sent to payroll.

[31]

Scotiabank
    tendered affidavit evidence on the motion to the effect that, while
    record-keeping procedures are centrally established for all branches, the
    actual recording and monitoring of hours of work is conducted at the
    branch-level by individual managers. Consequently, record-keeping systems vary
    from branch to branch. According to this evidence, overtime hours are often
    recorded using internal charts, handwritten logs, or employee calendars. Scotiabank
    also relied on affidavit evidence showing that compensation for overtime in the
    form of
lieu

time is often tracked informally by employees and
    their managers.

(4)

Relevant
Code
Provisions

[32]

The
Code
governs hours of work for individuals in the federal sector,
    including bank employees. Part III of the
Code
contains certain
    requirements for paying overtime wages to employees. Regulations enacted
    pursuant to the
Code
require employers to keep a record of employees
    hours of work. In addition, Part III of the
Code
creates a procedure
    for enforcing employees prescribed rights, including the right to receive
    overtime payment.

(a)

Code
Provisions Requiring Payment of Overtime Wages

[33]

The
    combined effect of ss. 169(1) and 174 of the
Code
is that an employer
    must pay an employee overtime wages at the rate of 1.5 times the regular rate
    of wages when the employee works more than eight hours in a day or more than 40
    hours in a week. Section 169(1) states:

169. (1) Except as otherwise provided

(
a
) the standard hours of work of an employee
    shall not exceed eight hours in a day and forty hours in a week; and

(
b
) no employer shall cause or permit an
    employee to work longer hours than eight hours in any day or forty hours in any
    week.

Section 174 provides as follows:

174. When an employee is required or permitted to
    work in excess of the standard hours of work, the employee shall, subject to
    any regulations made pursuant to section 175, be paid for the overtime at a
    rate of wages not less than one and one-half times his regular rate of wages.

[34]

The
Code
does not expressly permit an employer to provide time
in lieu
as an alternative to paying overtime wages. Section 168(1) of the
Code
states:

168. (1) This Part and all regulations made under
    this Part apply notwithstanding any other law or any custom, contract or
    arrangement, but nothing in this Part shall be construed as affecting any
    rights or benefits of an employee under any law, custom, contract or
    arrangement that are more favourable to the employee than his rights or
    benefits under this Part.

It is arguable whether time
in lieu
would
    qualify as rights or benefits under s. 168(1), but nothing turned on this
    issue on the certification motion or on appeal.

(b)

Record-Keeping
    Requirements under the
Code

[35]

Sections
    252(2) and 264(a) of the
Code
and the accompanying regulations under
    the
Code
require employers to accurately record all hours worked by
    employees and to keep these records for at least three years after the work is
    performed. The specific record-keeping requirements are established by s. 24(2)
    of the
Canada Labour Standards Regulations
, C.R.C., c. 986, which
    provides,
inter alia
, that the employer shall keep a record in respect
    of each employee of the hours worked each day, as well as the actual
    earnings, indicating the amounts paid each pay day, with a recording of amounts
    paid for overtime, vacation pay, general holiday pay, bereavement leave pay,
    termination pay and severance pay.

(c)

Procedure
    Established by the
Code
for Enforcing Employees Rights

[36]

The
Code
creates a detailed procedure for enforcing employees rights
    under Part III of the statute. The Labour Program of Human Resources and Social
    Development Canada (HRSDC) is responsible for monitoring compliance with Part
    III of the
Code
by, for example, investigating and adjudicating
    employee wage complaints. Inspectors appointed by the federal Minister of
    Labour possess broad powers of investigation and enforcement, including the
    power to order payment of unpaid overtime: see s. 251.1 of the
Code
.

[37]

The
Code
creates an appeal process from inspectors decisions through
    which an aggrieved person may request a hearing before a referee: see s.
    251.11(1). The referee has the power to summon witnesses, receive evidence
    under oath, award costs, and make decisions that may be enforced as orders of
    the Federal Court: see ss. 251.12(2), (4) and 251.15(3).

C.

THE MOTION JUDGES REASONS

[38]

The
    motion judge heard the plaintiffs motion to certify the class proceeding
    together with a motion by Scotiabank seeking an order under rules 21.01(1)(a)
    or 21.01(1)(b) of the
Rules of Civil Procedure
to dismiss, strike or
    stay portions of the statement of claim, or alternatively, an order under rule
    21.01(3)(a) to dismiss or stay the action on the ground that the court has no
    jurisdiction over its subject matter.
[2]
Scotiabanks central position on the Rule 21 motion was that the plaintiffs
    claims are impermissibly based on alleged breaches of the
Code
and
    that the court has no jurisdiction to enforce the
Code
.

[39]

The
    motion judge observed, at paras. 2 and 3, that there were two particularly
    contentious issues before him: (1) whether the plaintiff asserted
    impermissible causes of action based on alleged breaches of the
Code
;
    and (2) whether the claims asserted on behalf of the class members raise common
    issues.

[40]

In
    this court, Scotiabank is not appealing from the motion judges ruling on the jurisdiction
    issue or from his ruling that the plaintiff met the requirement in s. 5(1)(a)
    of the
CPA
that the pleadings disclose a cause of action. Nonetheless,
    it is helpful to describe how the motion judge resolved these issues in order
    to better understand the grounds of appeal that Scotiabank does raise
    concerning the common issues and preferable procedure criteria in ss. 5(1)(c)
    and 5(1)(d) of the
CPA
.

[41]

In
    my view, the motion judge correctly applied the test for determining whether
    the pleadings disclose a cause of action. He rejected Scotiabanks position that
    the action is essentially a collection of individual claims for unpaid
    overtime. Instead, the motion judge focused on the systemic nature of the
    allegations advanced by the plaintiff. This approach informed his analysis of
    the common issues and led to his conclusion that the certified common issues
    are appropriate ones for certification purposes. I discuss his reasons at some
    length because, for the most part, I endorse his analytical approach to the
    cause of action issue and the common issues question.

(1)

First Issue on the Certification Motion: Do the Pleadings
    Disclose a Cause of Action?

[42]

The
    first contentious issue on the certification motion involved Scotiabanks
    submission that the plaintiffs proposed causes of action do not meet the
    threshold for certification under s. 5(1)(a) of the
CPA
. As the motion
    judge recognized, at para. 70, the test for winnowing out causes of action
    under s. 5(1)(a) is identical to the test on a motion under rules 21.01(1)(a)
    and (b) to strike a pleading as disclosing no cause of action  whether it is
    plain and obvious that the claim cannot succeed at trial: see
Hunt v. Carey
    Canada Inc
.
, [1990] 2 S.C.R. 959.

[43]

The
    motion judge, at paras. 72-103, reviewed the five causes of action advanced by
    the plaintiff in her amended pleadings: (1) breach of contract; (2) unjust
    enrichment; (3) breach of a duty of good faith; (4) negligence; and (5) breach
    of the
Code
.

(a)

Breach
    of Contract and Unjust Enrichment

[44]

The
    plaintiff pleaded that it was an express or implied term of class members
    employment contracts that they would be paid for overtime at a rate of 1.5
    times their usual hourly wage. On the motion, Scotiabank did not dispute that,
    in this respect, the plaintiffs claim for breach of contract was properly
    pleaded. Scotiabank also conceded that the claim for unjust enrichment was
    properly pleaded.

[45]

Given
    Scotiabanks concessions, there was no real dispute that the s. 5(1)(a)
    criterion for certification was satisfied. However, Scotiabank argued that the
    claims pleaded do not raise common issues, as will be discussed below at paras.
    58-65.

[46]

Moreover,
    in the courts below, Scotiabank disputed the plaintiffs assertion that the
Code
provisions constitute implied terms of the class members employment contracts:
    see para. 73 of the motion judges reasons. The motion judge also dealt with
    this point of contention in discussing the common issues.

(b)

Breach
    of a Duty of Good Faith

[47]

The
    plaintiff pleads a breach of Scotiabanks duty of good faith toward the class
    members. Scotiabank submitted to the motion judge that it is plain and obvious
    that such a pleading cannot succeed at trial because a free-standing cause of
    action for breach of the duty of good faith does not exist at law, citing
Transamerica
    Life Canada Inc. v. ING Canada Inc
.
(2003), 68 O.R. (3d) 457
    (C.A.).

[48]

The
    motion judge regarded the duty of good faith as part of Scotiabanks
    contractual duties based on the Supreme Court of Canadas decision in
Wallace
    v. United Grain Growers Ltd.
, [1997] 3 S.C.R. 701. The motion judge
    explained, at para. 78, that the duty of good faith and fair dealing in the
    employment relationship is a feature of the contractual relationship and not an
    independent cause of action. It  arises from the recognition of the
    vulnerability of the employee and the importance of work in personal
    fulfillment and financial security. He concluded that, when viewed in this
    manner, the plaintiffs claim discloses a cause of action.

[49]

The
    motion judge found that it is at least arguable that Scotiabank breached the
    duty of good faith owed to class members in the following ways: (i) by putting
    the onus on them to obtain pre-approval for receiving overtime compensation;
    (ii) by creating a working environment that dissuaded employees from claiming
    overtime; and (iii) by failing to implement a record-keeping system that
    records all hours worked. His reasons in this regard, at paras. 78-81, bear
    repeating because they properly reflect the systemic nature of the causes of
    action asserted by the plaintiff:

The employees in this case are in a position
    of particular vulnerability, as they do not have the protection of a union and
    they are not members of management. They are responsible for the sale of
    Scotiabanks products and they are no doubt encouraged to maximize sales. The
    nature of their work, which requires that they respond to the unpredictable
    demands of customers, makes the necessity to work overtime a real possibility.
    The understandable need for managers to control overtime costs and the
    pre-approval requirement in the policy create institutional impediments to
    claims for overtime pay. It seems to me that there is, at the very least, an
    argument that the duty of good faith and fair dealing requires the employer to
    pay for overtime work necessarily required or permitted by the employer,
    whether or not the overtime has been approved in advance.

Putting the onus on the employee to obtain
    pre-approval for overtime does not adequately reflect the realities of the work
    place. It puts emphasis on protecting the interests of the employer as opposed
    to protection of the employee, to whom the duty of good faith is owed. The duty
    of good faith could include taking active measures to ensure that employees are
    not required or permitted to work overtime in order to perform the usual duties
    of their employment.

The duty of good faith could also require that
    the employer take measures to ensure that overtime work of Class Members is
    properly recorded and properly compensated. Scotiabanks Vice President, Ms.
    Russell, suggested that it would be demeaning to require employees to punch a
    time clock or to keep track of their hours. If Ms. Fulawkas assertions are
    correct, it would be more demeaning for Class Members to work overtime without
    compensation. Moreover, in this age when most bank employees log into a
    computer at the beginning of the work day and log out at the end, it is hard to
    imagine that Scotiabank could not devise a time-tracking system that would be
    effective and automatic and that would allow managers, and their superiors, to
    track, regulate and fairly compensate overtime.

These components of the duty of good faith do
    not derive from the
Code
, but their content is
    informed by the
Code
.
I am satisfied that the claim for breach of the duty of good faith,
    viewed as a part of Scotiabanks contractual duties, discloses a cause of
    action
.

(c)

Negligence
    Claim

[50]

After
    the motion to certify the unpaid overtime class action against CIBC was
    dismissed in the parallel
Fresco
action, the plaintiff in this action
    submitted a draft amended pleading that added a claim in negligence. In the
    amended pleading, the plaintiff alleges that Scotiabank owed a duty of care to
    class members to ensure they were properly compensated, at the appropriate
    rates, for all hours worked. Further, she asserts that Scotiabank breached this
    duty in various ways, including by imposing an unlawful overtime policy, by
    creating a work environment in which class members were required to work
    overtime to complete their duties but were dissuaded from reporting overtime
    and claiming compensation, and by failing to take reasonable steps to monitor
    and record hours of work.

[51]

The
    motion judge accepted that the negligence claim as pleaded meets the plain and
    obvious test. He further accepted, at para. 83, that the duties owed by Scotiabank
    in negligence can be informed by the provisions of the
Code
.

(d)

Breach
    of the
Code
Provisions

[52]

The
    pleadings further assert that various elements of Scotiabanks overtime
    policies and record-keeping practices violate the
Code
.
This aspect
    of the claim was the focus of Scotiabanks attack under s. 5(1)(a) of the
CPA
and its motion under rules 21.01(1)(a) and (b) and 21.01(3)(a) of the
Rules
    of Civil Procedure
. Scotiabank asserted that it was plain and obvious that
    the plaintiffs claims based on breaches of the
Code
disclose no
    reasonable cause of action. Scotiabank also argued that the court has no
    jurisdiction to enforce the
Code
and thus these elements of the claim
    should be struck under rule 21.01(3)(a).

[53]

The
    motion judge agreed with Scotiabanks position to the extent that he concluded,
    at paras. 88 and 103, that the plaintiff cannot rely on a cause of action based
    directly on breaches of the
Code
.
He observed, at para. 93,
    that the
Code
establishes an entitlement to overtime pay and
    establishes a sophisticated regime for the enforcement of this right both
    through penal prosecutions and through an administrative recovery process.
    Moreover, he observed, at paras. 96-97, that a review of the
Code
does
    not reveal a legislative intention to confer a civil cause of action, and,
    further, that the
Code

provides a comprehensive mechanism for enforcing
    the rights it confers on employees. The motion judge struck those portions of
    the plaintiffs pleadings that he viewed as asserting a direct cause of action based
    on the
Code
. For example, he struck references in the pleadings to
    compliance with or violations of the
Code
and to statutory
    overtime or statutory obligations.

[54]

However,
    the motion judge noted, at para. 103, that his decision to strike these
    portions of the pleadings was made easier by the fact that the plaintiff
    disclaims any intention to assert such a cause of action. In the motion
    judges view, the plaintiff was not trying to enforce the provisions of the
Code
.
He explained that, although the plaintiff had not specifically pleaded that the
Code
is implied by fact into the class members contracts of
    employment, her counsel made this assertion in her factum responding to the
    motion to strike (at para. 101). This assertion was premised on the statement
    in Scotiabanks Initial Overtime Policy that it is based on the
Code
.

[55]

The
    motion judge thus refused to strike the portions of the pleadings asserting
    that the
Code
requirements and those of the related regulations are
    implied terms of the class members contracts. For example, the plaintiffs
    amended statement of claim states, at para. 22:

The requirements of the
Code
and its regulations are
    implied terms in the contracts of class members. In particular, these implied
    terms include the requirements to pay for hours of overtime worked, including
    but not limited to time and one-half for hours in excess of 8 hours per day or
    40 hours per week, and to keep accurate records of hours of work.

[56]

The
    motion judge concluded, at para. 103, that the
Code
provisions may
    well inform the contractual duties, including the duty of good faith and fair
    dealing that Scotiabank owes to its employees.

[57]

Having
    held that the majority of the plaintiffs pleaded causes of action satisfy the
    plain and obvious test from
Hunt v. Carey
, the motion judge next
    considered if the claims raise common issues.

(2)

Second Issue on the Certification Motion: Do the Claims Raise
    Common Issues?

[58]

The
    second, and indeed, the central contentious issue on the certification motion
    concerned the criterion in s. 5(1)(c) of the
CPA
: the claims of the
    class must raise common issues. Section 1 of the
CPA
defines common
    issues as issues that are: (a) common but not necessarily identical issues of
    fact, or (b) common but not necessarily identical issues of law that arise from
    common but not necessarily identical facts.

[59]

The
    motion judge agreed with the defendant that it is possible to frame the
    plaintiffs case as one that will require an examination of the circumstances
    of each class member to prove the following elements: the class member worked
    overtime hours; the number of overtime hours worked; which of those hours were
    authorized under the terms of the overtime policy or required or permitted
    under the
Code
; and whether the employee was compensated for those hours.
    However, relying on
Rumley v. British Columbia
, 2001 SCC 69, [2001] 3
    S.C.R. 184, the motion judge observed, at para. 122:

The plaintiff is entitled to advance her case in a way that
    makes it amenable to determination on a Class-wide basis. This approach to the
    plaintiffs case would be to frame it, as Ms. Fulawka has, based on a contract
    common to the Class and systemic breaches of duties owed to Class Members.

[60]

The
    motion judge found, at para. 123, that there is a factual basis, albeit a
    disputed one, for the plaintiffs assertions that:

·

she and other class members regularly worked overtime to complete
    their ordinary duties;

·

overtime work was encouraged by Scotiabank, as reflected by Ms.
    Fulawkas performance appraisals;

·

Scotiabanks system put the onus on the employee to obtain prior
    authorization;

·

for a large part of the class period, Scotiabanks overtime
    policy expressly prohibited approval of overtime work after the fact;

·

Ms. Fulawka and other class members evidence was that, due to
    the nature of their work, it was very difficult for class members to predict
    when overtime would be required; and

·

when there was a pressing need to work overtime, there was
    frequently no opportunity to seek pre-approval.

[61]

The
    motion judge was also satisfied, as he noted at para. 128, that there is a
    factual basis for a common issue concerning Scotiabanks record-keeping system:

·

there is evidence that, for most of the class period, Scotiabank
    did not have an adequate system for recording regular time and overtime worked
    by class members;

·

while employees were supposed to check and correct their hours
    after the fact, Scotiabanks policy prevented them from recording and claiming
    for hours that had not been pre-approved;

·

Scotiabank had no consistent corporate policy or system
    applicable to all branches for tracking overtime; and

·

Scotiabank had no system of tracking time
in lieu
or of
    ensuring that it was cashed out.

He concluded that the evidentiary record provides a
    factual basis for asking whether Scotiabank owed duties to the class to
    properly record all hours worked, whether pre-approved or not, and whether
    those duties were breached.

[62]

He
    found, at para. 129, that these common issues do not depend on individual
    findings with respect to each employee. In addition, he determined that
    resolving these common issues will significantly advance the action because,
    if they are answered in the affirmative the absence of pre-approval in any
    particular case may be irrelevant and the inability of an employee to prove the
    quantum of overtime hours worked may not be fatal to the claim.

[63]

The
    motion judge went on to say, at para. 130, that if the common issues trial
    judge were to find that Scotiabank failed to implement a proper record-keeping
    system, and that this failure impeded the ability of class members to prove
    their damages, an aggregate assessment of damages using statistical means may
    well be the only way to fairly compensate Class Members.

[64]

The
    motion judge ultimately certified ten of the twelve proposed common issues
    listed in the appendix to these reasons. He refused to certify proposed common
    issue 3, asking if any parts of Scotiabanks overtime policies are unlawful,
    void, or unenforceable for contravening the
Code
.
In doing so,
    he relied on the same reasons he provided for striking the portions of the
    pleadings that alleged free-standing violations of the
Code
.

[65]

The
    motion judge also refused to certify common issue 12, about the appropriate
    means for determining any individual issues that the class members claims may
    be found to raise. In his view, this was essentially a procedural question and
    not an appropriate common issue.

[66]

The
    plaintiff is not appealing from the motion judges refusal to certify these two
    common issues to this court.

(3)

Other Issues on the Motion: Preferable Procedure and the
    Litigation Plan

[67]

Scotiabank
    argued that resolving the individual issues of the more than 5,000 class
    members by way of individual trials after the common issues trial would not promote
    judicial economy, and thus a class proceeding is not the preferable procedure
    for resolving the class members claims for unpaid overtime. Scotiabank pointed
    to other available procedures, such as its Revised Policy, or the investigative
    and adjudicative regime available under the
Code
, or the Small Claims
    Court, as more cost-effective procedures for dealing with the class members
    claims.

[68]

The
    motion judge, at paras. 159-64, gave five reasons for rejecting Scotiabanks
    submissions on preferable procedure:

(i) individual trials might not be necessary and an aggregate
    assessment of damages might be appropriate;

(ii) even if individual assessments of entitlement and damages
    are required, a common issues trial judge assisted by the parties and their
    experts should be able to fashion a claims process that is not unduly complex;

(iii) employees may be reluctant to raise concerns about
    overtime payment with their employer under the
Code
or Scotiabanks
    internal procedures due to fear of reprisals, whereas a class proceeding can
    offer a degree of anonymity and protection through the courts supervision of
    the claims process;

(iv) there are weaknesses and limitations in the
Code
procedures, including the fact that HRSDC inspectors do not have jurisdiction
    to investigate alleged violations of an employers own overtime policy; and

(v) none of the alternative procedures would provide an
    efficient means of resolving the common issues that the motion judge
    identified.

[69]

Finally,
    while Scotiabank conceded that Ms. Fulawka and her counsel are capable of
    representing the class, Scotiabank argued that the litigation plan is wholly
    deficient. The motion judge dismissed this criticism, noting, at para. 167,
    that the litigation plan is not cast in stone. He concluded that, in any
    event, the litigation plan meets the requirements set out in
Bellaire v.
    Independent Order of Foresters
(2004), 19 C.C.L.I. (4th) 35 (Ont. S.C.),
    as well as in
Poulin v. Ford Motor Co. of Canada
(2006), 35 C.P.C. (6th)
    264 (Ont. S.C.).

D.

REASONS OF THE DIVISIONAL COURT

[70]

In
    reasons by Harvison Young J., the Divisional Court unanimously upheld the
    certification order and the motion judges decision to dismiss Scotiabanks
    Rule 21 motion in part. The court quashed the plaintiffs cross-appeal from the
    motion judges order striking portions of the statement of claim for improperly
    asserting a cause of action based on the
Code.
The court quashed the
    cross-appeal on the basis that it was an appeal from a final order, which lies
    to the Court of Appeal as of right: see paras. 7-9. The plaintiff has not
    appealed from this aspect of the motion judges order in this court.

[71]

Harvison
    Young J. concisely summarized the courts reasons for dismissing Scotiabanks
    appeal, at paras. 14-16:

The motion judge applied the correct test to all the causes of
    action asserted in breach of contract, breach of a duty of good faith, unjust
    enrichment and negligence by asking in relation to all of them whether it was plain
    and obvious that they could not succeed. The motion judge correctly applied
    the test to the claims asserted, emphasizing the need to apply the test in a
    generous and purposive manner in order to give effect to the important goals of
    class actions, as well as the need for courts to be circumspect about striking
    claims in the absence of a full evidentiary record. Striking those parts of the
    claim that sought to directly enforce the
Code
, he concluded that it
    was plain and obvious that these claims could not succeed. In my view, the
    motion judges conclusions were appropriately anchored in an evidentiary
    record, keeping in mind that the ultimate question of weight of such evidence
    is appropriately left to the trial judge.

The motion judge was also correct in certifying the common
    issues with respect to which Scotiabank appeals. In doing so, and as will be
    discussed further, the motion judge applied the proper legal tests, concluding
    that the determination of the common issues advanced would advance the claim of
    every Class Member. Contrary to Scotiabanks submissions, the motion judge did
    have an evidentiary basis, albeit on a contested basis, for his conclusions.
    Scotiabanks submissions relative to common issues, in essence, seek to reframe
    the claims from the systemic issues asserted by the plaintiff as claims which
    are individual in nature and, accordingly, lacking in commonality. The motion
    judge was correct in declining to accept Scotiabanks attempts to recast Ms.
    Fulawkas claims, and in holding that they must be assessed in the systemic
    terms advanced. The motion judge was correct in certifying the issues relating
    to breach of contract, systemic defects in overtime policies and practices,
    misclassification, unjust enrichment, remedies and damages.

Third, the motion judge was correct in finding that a class
    proceeding is the preferable procedure for resolving the Class Members claims
    pursuant to s. 5(1)(e) of the
CPA
.

[72]

The
    court agreed with the motion judges analysis of the common issues, including
    the question of the potential availability of an aggregate assessment of
    damages under s. 24(1) of the
CPA
. The court also agreed with his
    analysis of the preferable procedure issue. Rather than summarize the reasons
    of the Divisional Court at this juncture, I will refer to them in my subsequent
    analysis to the extent that they reinforce some of the points I wish to make.

[73]

I
    pause, however, to note that Harvison Young J. emphasized, at para. 21, that
    the court in
Fulawka
did not have before it the evidentiary record of
Fresco
.
    She said that it is neither possible nor appropriate for this court to attempt
    to assess the merits of the present appeal in relation to the record before the
    court in
Fresco
. Understandably, the court was reluctant to take
    sides with either the majority or the dissenting opinions of the Divisional
    Court in
Fresco
and instead distinguished that case. In my companion
    reasons in
Fresco
, I will explain why these cases are not
    distinguishable for certification purposes.

E.

ISSUES ON APPEAL

[74]

A
    preliminary matter is the standard of review that applies to the decisions of
    the courts below. The appellant submits that the correctness standard applies
    because the courts committed errors of law in the course of analyzing the
    common issue and preferable procedure criteria for certification.

[75]

Specifically,
    the appellant asserts that the courts below committed the following three
    errors:

(1) The courts below erred in certifying the proposed common
    issues when the proposed issues would not significantly advance the claims of
    any of the individual claimants. The resolution of the common issues would not
    establish a single element necessary for any of the class members to succeed in
    their claims for unpaid overtime.

(2) The courts below erred in misinterpreting s. 24 of the
CPA
by holding that it could be used to determine aggregate damages in the present
    case.

(3) The courts below erred in concluding that the preferable
    procedure criterion is met when the
Code
establishes an effective
    procedure for resolving overtime complaints.

[76]

The
    respondent, on the other hand, points to the case law establishing that the
    decision of a judge on a certification motion is entitled to substantial
    deference on appeal and should only be interfered with if the motion judge
    erred in principle, or made a palpable and overriding error of fact or of mixed
    fact and law: see
Cloud v. Canada (A.G.)
(2004), 73 O.R. (3d) 401
    (C.A.), at para. 39, leave to appeal refused, [2005] S.C.C.A. No. 50;
Pearson
    v. Inco Ltd.

(2006), 78 O.R. (3d) 641 (C.A.), at para. 43, leave to
    appeal refused, [2006] S.C.C.A. No. 1;
Cassano v. Toronto-Dominion Bank,
2007
    ONCA 781, 87 O.R. (3d) 401 (C.A.), at para. 23, leave to appeal refused, [2008]
    S.C.C.A. No. 15; and
Markson v. MBNA Canada Bank
, 2007 ONCA 334, 85
    O.R. (3d) 321, at para. 33, leave to appeal refused, [2007] S.C.C.A. No. 346.

F.

ANALYSIS

[77]

The
    Divisional Court properly set out the principles governing the standard of
    review, at paras. 17-18, which is consistent with the jurisprudence cited by
    the respondent. For the reasons that follow, I agree with the Divisional
    Courts conclusion that the motion judge did not err in principle or commit any
    palpable and overriding error in his analysis of the appropriateness of the
    common issues, other than the common issue concerning the availability of an
    aggregate assessment of damages. In my view, the courts below erred in law in their
    interpretation of the requirements in s. 24(1) of the
CPA
governing the availability of an aggregate
    assessment of damages
. Finally, I agree with the Divisional Court that
    the motion judge did not commit any reviewable error in concluding that the
    preferable procedure criterion is met.

(1)

The
    Appropriateness of the Common Issues Related to Liability

[78]

As
    the Supreme Court of Canada established in
Hollick v. Toronto (City)
, 2001
    SCC 68, [2001] 3 S.C.R. 158, at para. 25, the certification judge must be
    satisfied that there is some basis in fact for each of the certification
    requirements set out in s. 5 of the Act, other than the requirement that the
    pleadings disclose a cause of action. In his reasons in this case, the motion
    judge, at para. 109, referred to this passage from
Hollick
and added:

It should be kept in mind, however, that in certifying a common
    issue the court is not concluding that it will be answered in a manner
    favourable to one party or the other. The requirement that there must be an evidentiary
    basis for the existence of a common issue is a far cry from proof of the issue
    on the balance of probabilities.

[79]

I
    agree with the motion judges comment. To the same effect, see also the
    majority of the Divisional Court in
Fresco
, at para. 72, and
Grant
    v. Canada (Attorney General)
(2009), 81 C.P.C. (6th) 68 (Ont. S.C.), at
    para. 21. While the evidentiary basis for establishing the existence of a
    common issue is not as high as proof on a balance of probabilities, there must
    nonetheless be some evidentiary basis indicating that a common issue exists
    beyond a bare assertion in the pleadings. To be clear, this is simply the
Hollick
standard of some basis in fact.

[80]

What then is an appropriate common issue for
    certification purposes? As noted above,
s. 1 of the
CPA
defines common issues as issues that are: (a) common but not necessarily
    identical issues of fact, or (b) common but not necessarily identical issues of
    law that arise from common but not necessarily identical facts. Section 5(1)(c)
    includes as a condition for certification that the claims or defences of the
    class members raise common issues.

[81]

There are a number of legal principles concerning the
    common issues requirement in s. 5(1)(c) that can be discerned from the case
    law. Strathy J. provided a helpful summary of these principles in

Singer
    v. Schering-Plough Canada Inc.
, 2010 ONSC 42, 87 C.P.C. (6th) 276. Aside
    from the requirement just described that there must be a basis in the evidence
    to establish the existence of the common issues, the legal principles
    concerning the common issues requirement as described by Strathy J. in
Singer
,
    at para. 140, are as follows:

The underlying foundation of a common issue is whether its
    resolution will avoid duplication of fact-finding or legal analysis:
Western
    Canadian Shopping Centres Inc. v. Dutton
,
2001 SCC 46, [2001] S.C.R. 534

at para. 39.

An issue can be a common issue even if it makes up a very
    limited aspect of the liability question and even though many individual issues
    remain to be decided after its resolution:
Cloud
,
at para. 53.

There must be a rational relationship between the class
    identified by the plaintiff and the proposed common issues:
Cloud
,

at para. 48.

The proposed common issue must be a substantial ingredient of
    each class members claim and its resolution must be necessary to the
    resolution of that claim:
Hollick
,
at para. 18.

A common issue need not dispose of the litigation; it is
    sufficient if it is an issue of fact or law common to all claims and its
    resolution will advance the litigation for (or against) the class:
Harrington
    v. Dow Corning Corp.
, [1996] B.C.J.
    No. 734, 48 C.P.C. (3d) 28 (S.C.), affd 2000 BCCA 605, [2000] B.C.J. No. 2237,
    leave to appeal to S.C.C. refd [2001]
    S.C.C.A. No. 21.

With regard to the common issues, success for one member must
    mean success for all. All members of the class must benefit from the successful
    prosecution of the action, although not necessarily to the same extent. That
    is, the answer to a question raised by a common issue for the plaintiff must be
    capable of extrapolation, in the same manner, to each member of the class:
Dutton
,
    at para. 40,
Ernewein v. General Motors of Canada Ltd.
, 2005 BCCA 540,
    46 B.C.L.R. (4th) 234, at para. 32;
Merck Frosst Canada Ltd. v. Wuttunee,

2009 SKCA 43, [2009] S.J. No. 179 (C.A.), at paras. 145-46 and 160.

A common issue cannot be dependent upon individual findings of
    fact that have to be made with respect to each individual claimant:
Williams
    v. Mutual Life Assurance Co. of Canada
(2000), 51 O.R. (3d) 54, at para.
    39, affd (2001), 17 C.P.C. (5th) 103 (Div.
    Ct.), affd [2003] O.J. No. 1160 and 1161
    (C.A.);
Fehringer v. Sun Media Corp.
(2002),
    27 C.P.C. (5th) 155 (S.C.J.), affd (2003),
    39 C.P.C. (5th) 151 (Div. Ct.).

Where questions relating to causation or damages are proposed
    as common issues, the plaintiff must demonstrate (with supporting evidence)
    that there is a workable methodology for determining such issues on a class-wide
    basis:
Chadha v. Bayer Inc.,
2003 CanLII 35843 (C.A.), at para. 52,
    leave to appeal dismissed [2003] S.C.C.A.
    No. 106, and
Pro-Sys Consultants Ltd. v. Infineon Technologies AG
,
    2008 BCSC 575, at para. 139.

Common
    issues should not be framed in overly broad terms:
It would not
    serve the ends of either fairness or efficiency to certify an action on the
    basis of issues that are common only when stated in the most general terms.
    Inevitably such an action would ultimately break down into individual proceedings.
    That the suit had initially been certified as a class action could only make
    the proceeding less fair and less efficient:
Rumley v. British Columbia
,
2001 SCC 69, [2001] 3 S.C.R. 184, at para. 29.

[82]

As
    Strathy J. commented in
Singer
, at para. 140, these legal principles
    are by no means exhaustive. I would also add that it is up to the motion
    judge to decide what legal principles are the contentious ones in any
    particular case and to focus the analysis accordingly. The motion judge will then
    consider the pertinent legal principles with reference to the evidence adduced
    on the motion to decide if there is some basis in the evidence to establish the
    existence of the common issues.

[83]

On
    this appeal, Scotiabank does not argue that there is no basis in fact for the
    common issues. The plaintiff filed affidavit evidence that is capable of
    supporting each of the factual assertions referred to by the motion judge, as
    set out above at paras. 60-61. These factual assertions form the building
    blocks of the common issues.

[84]

Rather
    than attacking the factual basis for the common issues, Scotiabank asserts that
    the motion judge erred in certifying common issues that are not substantial
    ingredients of the class members claims. According to Scotiabank, resolving the
    proposed common issues would not significantly advance the litigation. I would
    not accept these submissions for the following reasons.

(a)

Common
    Issues 1 and 2  Breach of Contract Issues

[85]

On
    the certification motion, the appellant argued that resolving the first common
    issue concerning the relevant terms of the class members employment contracts would
    not significantly advance the litigation because Scotiabank admitted that the
    overtime policy is an express term of the contracts and further admitted that Level
    6 employees are entitled to overtime pay. However, the courts below noted that,
    unlike CIBC in
Fresco
,
Scotiabank did not accept that the statutory duties under the
Code
are
    incorporated as terms of the class members employment contracts. And, unlike
    CIBC, Scotiabank did not concede that if an employee was required or permitted
    to work overtime, whether or not pre-approval was obtained, and the employee
    was not compensated, this would constitute a breach of the employment contract:
    see the motion judges reasons, at para. 136; the Divisional Courts reasons,
    at para. 94; and the motion judges reasons in
Fresco
, at para. 58.

[86]

In
    oral argument on this appeal, counsel for Scotiabank conceded that the terms of
    the
Code
are incorporated by reference as terms of class members
    employment contracts.
[3]
Counsel acknowledged that Scotiabanks overtime policies must be read, applied
    and administered in a manner that is consistent with the
Code
. Counsel
    further conceded that if an employee were permitted to work overtime without
    pre-approval, Scotiabank would be liable to pay overtime. Counsels concessions
    on this appeal (Scotiabank was represented by different counsel in the courts
    below) are consistent with Scotiabanks position that this case is
    indistinguishable from
Fresco
.

[87]

A
    strategic concession of this sort is a hollow one, especially where it is made
    by a defendant for the first time on a second appeal from a certification
    order. With this concession, Scotiabank seeks to have this court overturn the
    certification order. Yet, in the absence of a certification order, any
    admission fails to bind the defendant
vis-à-vis
the proposed class in
    any meaningful way. As stated in
Bywater v. Toronto Transit Commission
(1998), 27 C.P.C. (4th) 172 (Ont. Ct. (Gen. Div))
, at para. 14
:

Without a certification order from this court no public
    statement by the defendant, and no admission in its defence to the nominal
    plaintiff, binds the defendant in respect of the members of the proposed class.
    A class proceeding by its very nature requires a certification order for the
    proposed class members to become parties to the proceeding. If the proposed
    class members are not parties to the proceedings, the admission of liability,
    as it relates to them, is no more than a bare promise.

[88]

In
Fresco
, at para. 59, Lax J. held that
Bywater

is
    distinguishable because it involved an admission of liability by the defendant,
    whereas the defendant bank was merely making a concession about the terms of
    class members employment contracts. I disagree with this distinction. The same
    concern arises in both cases: the admission of what would otherwise be a proper
    common issue should not be allowed to defeat a finding of commonality. This is
    because, in the absence of a certification order, the admission has no binding
    effect as between the defendant and the members of the class. As the motion
    judge in this case observed, at para. 139: A defendant cannot finesse a motion
    for certification by admitting what would otherwise be a proper common issue.
    Likewise, Scotiabank cannot ask this court to overturn a certification order on
    the basis that it has admitted a proper common issue.

[89]

In
    my view, the first common issue is a substantial ingredient of the claim that Scotiabank
    has breached its contracts of employment with members of the class. Determining
    the relevant express and implied terms of the employment contract of class
    members  particularly the terms concerning Scotiabanks obligations for
    compensating and recording overtime hours  is a necessary and substantial
    ingredient of the class members claims.

[90]

Common
    issue 2 asks whether Scotiabank breached any of the express or implied terms of
    the class members employment contracts. If the common issues trial judge determines
    that Scotiabank applied the pre-approval requirement in a way that was contrary
    to the express or implied terms of the class members employment contracts,
    then this would support the claim that Scotiabank systemically breached the
    class members contracts and would significantly advance the class members
    claims for declaratory and monetary relief, as will be further explained in
    discussing common issues 4, 5 and 6.

(b)

Common
    Issues 4, 5 and 6  the Systemic Defect Issues

[91]

Next,
    the appellant argues that the so-called systemic defect common issues 4, 5
    and 6 are not necessary or substantial ingredients of the class members claims.
    Common issue 4 asks whether Scotiabank had a duty to accurately record hours
    worked and whether it breached such duty. Common issue 5 concerns whether Scotiabank
    had a duty to prevent class members from working hours for which it did not
    intend to compensate them. Common issues 6(a) and 6(b) ask whether Scotiabank
    had a duty to implement a system to ensure the duties in common issues 4 and 5
    were satisfied, while common issue 6(c) asks whether, as a result of breaching
    its duty to implement such a system, Scotiabank consequently required or
    permitted all uncompensated hours worked by the class members.

[92]

According
    to the appellant, resolving these issues would not advance the litigation
    because, even if they were resolved in favour of the plaintiff, none of the
    elements of the class members claims for unpaid overtime would be established.

[93]

While
    I see common issues 6(a) and 6(b) as superfluous, I reject the appellants
    argument that resolving common issues 4 and 5 would not advance the litigation.

[94]

The
    appellant is essentially urging this court to conclude that the plaintiff has
    raised artificial common issues. According to the appellant, what lies beneath
    this artifice of systemic common issues are hopelessly individualized claims
    for overtime by potentially thousands of Scotiabank employees, who worked in
    hundreds of different bank branches across the country. These branches had
    different systems for recording overtime hours worked and different practices
    for compensating such hours. The courts below are said to have failed to ask
    whether resolving any of the so-called systemic issues would significantly advance
    the individual class members claims for unpaid overtime, which Scotiabank sees
    as lying at the heart of this litigation.

[95]

I
    reject the appellants objections concerning the allegedly individualized
    nature of the class members claims for two reasons.

[96]

First,
    the potential need for individual assessments does not undermine the utility of
    a class proceeding. If common issues 4 and 5 were resolved in favour of the
    class, this would present a very different factual matrix for considering the
    evidence concerning individual claims than the factual matrix that would exist at
    individual trials conducted in the absence of a common issues determination.
    The appellants argument ignores this reality.

[97]

For
    example, as was explained by the motion judge, at para. 143, and the Divisional
    Court, at paras. 108-10, if common issue 4 were resolved in favour of the
    plaintiff class, this could support an argument by the class members that Scotiabank
    should not be allowed to rely on its own breach of its record-keeping duty in a
    manner that prevents the class members from proving damages. I deal with this
    point further at paras. 130-32.

[98]

Similarly,
    a favourable answer to common issue 5  concerning Scotiabanks duty to prevent
    class members from working hours for which the bank did not intend to
    compensate them  could assist individual class members in establishing Scotiabanks
    liability in their respective cases. As the motion judge observed, at para. 144:
    If it is found that Scotiabank had an active duty to prevent unpaid overtime,
    and that it breached this duty, then proof by the employee that the work was required
    or permitted (to use the language of the
Code
) will likely result in
    recovery of overtime.

[99]

Second,
    and more fundamentally, the appellant improperly attributes a very narrow
    theory of liability to the pleadings. The appellant insists that its liability
    to class members depends on proof by individual class members that they were
    not compensated for overtime hours that they were required or permitted to
    perform, as well as proof of how many such hours individual class members
    worked during the class period. The appellant thereby misconceives the
    plaintiffs claim as pursuing only monetary forms of relief. The appellant
    ignores that resolving common issues 4 and 5 would be determinative of various
    claims for declaratory and injunctive relief, including the plaintiffs request
    for an order directing Scotiabank to: specifically perform its contracts of
    employment with the class members and to accurately record all hours worked
    by class members and pay class members for all hours worked. The motion
    judges reasons at paras. 121-31, referred to above at paras. 59-63, explain
    why the plaintiffs action is not simply a collection of individual claims for
    unpaid overtime.

[100]

I have a further
    comment concerning the systemic defect common issues.

[101]

As indicated
    above, I do not see any purpose that would be served by answering common issues
    6(a) and 6(b). In
Fresco
, the Divisional Court was unanimous in
    concluding that these common issues are not distinct from the underlying duties
    asserted in common issues 4 and 5: see the majority of the Divisional Court, at
    para. 116, and Sachs J., at para. 240. I agree with the Divisional Court in
Fresco
on this point. I will say more about common issue 6(c) in discussing the
    availability of an aggregate assessment under s. 24(1) at paras. 131-32.

[102]

In conclusion,
    while I do not see the distinct importance of common issues 6(a) and 6(b), I
    find that resolving common issues 4 and 5 in favour of the class members would
    advance their claims for monetary and non-monetary relief.

(c)

Common
    Issues 7 and 8  Misclassification and Unjust Enrichment

[103]

The appellant
    contends that the most that could be determined in relation to common issue 7
    (whether Scotiabank breached its contracts of employment or was unjustly
    enriched by misclassifying certain class members as Level 6), and common issue
    8 (whether Scotiabank was unjustly enriched by failing to pay class members for
    all of their hours worked), is the scope of Scotiabanks obligations to pay
    overtime.

[104]

According to the
    appellant, the critical question of whether Scotiabank actually breached its
    obligations cannot be answered on a class-wide basis. The motion judge gave the
    following reasons for certifying the misclassification issue, at para. 145:

Scotiabank admitted that it had misclassified Level 6 employees
    as management, thereby rendering them ineligible for overtime. As Lax J. noted
    in
Fresco
at para. 54, misclassification cases are appropriate for
    certification due to commonality of employment functions and common treatment
    by the employer. While Scotiabank established a procedure in 2008 to address
    the misclassification, its application was limited to claims post-November
    2005. Moreover, I accept Ms. Fulawkas submission that some eligible claimants
    may have failed to assert a claim for a variety of reasons.
The issue should
    be certified so that a determination can be made that is binding on Scotiabank
    and Class Members.
[Emphasis added.]

[105]

I agree with the
    motion judge on this issue. The proposed class includes certain individuals
    who, by virtue of their employment classification, were treated as ineligible
    for overtime compensation. While Scotiabank has since reclassified them as
    non-managerial employees, certifying the misclassification issue permits a
    determination that binds Scotiabank and the proposed class. I will say more
    about the appropriateness of certifying a proposed common issue of misclassification
    in my reasons in
McCracken
.

[106]

The proposed
    common issue concerning whether Scotiabank was unjustly enriched by failing to
    appropriately compensate class members for all hours worked raises issues of
    fact and law that relate to all members of the class. As pointed out by the
    courts below, there is ample authority establishing that unjust enrichment can
    constitute a common issue: see
Smith v. National Money Mart Co.
(2007),
    37 C.P.C. (6th) 171 (Ont. S.C.), leave to appeal refused (2007), 30 E.T.R. (3d)
    163 (Div. Ct.);
McCutcheon v. The Cash Store Inc.
(2006), 80 O.R. (3d)
    644 (S.C.).

[107]

Thus, I would
    dismiss the appellants ground of appeal concerning the correctness of the
    motion judges decision to certify the common issues related to liability,
    subject only to the limited exception that I would allow the appeal from the
    Divisional Courts order upholding the motion judges order certifying common
    issues 6(a) and 6(b).

(2)

The Common Issue Concerning an Aggregate Assessment under s.
    24(1) of the
CPA

[108]

The appellant
    raises a separate ground of appeal involving the correctness of the decision to
    certify common issue 10(a) concerning an aggregate assessment of damages.
[4]
The proposed common issue reads as follows:

10. If the answer to any of common issues is yes, is
    Scotiabank potentially liable on a class-wide basis? If yes:

a. Can damages be assessed on an
    aggregate basis? If yes:

i. Can aggregate damages be assessed
    in whole or part on the basis of statistical evidence, including statistical
    evidence based on random sampling?

ii. What is the quantum of aggregate
    damages owed to Class Members?

iii. What is the appropriate method
    or procedure for distributing the aggregate damages award to Class Members?

[109]

The appellant
    argues that the courts below erred in holding that an aggregate assessment
    under s. 24(1) of the
CPA
may be available in this case. According to
    the appellant, there is no reasonable likelihood that class members damages
    can properly be assessed in the aggregate, or that liability can be established
    without inquiries of individual class members regarding the amount, if any, of
    overtime work they were required or permitted to perform.

[110]

Section 24(1) of
    the
CPA
authorizes a common issues trial judge to assess damages on an
    aggregate basis:

24. (1) The court may determine the aggregate or a
    part of a defendants liability to class members and give judgment accordingly
    where,

(a) monetary relief is
    claimed on behalf of some or all class members;

(b) no questions of fact
    or law other than those relating to the assessment of monetary relief remain to
    be determined in order to establish the amount of the defendants monetary
    liability; and

(c) the aggregate or a
    part of the defendants liability to some or all class members can reasonably
    be determined without proof by individual class members.

[111]

As the motion
    judge recognized, at para. 148, it is appropriate to certify a common issue of
    entitlement to aggregate damages if the plaintiff establishes that there is a
    reasonable likelihood that the preconditions in section 24(1) of the
CPA
would be satisfied and an aggregate assessment made if the plaintiffs are
    otherwise successful at a trial for common issues: see
Markson
, at
    para. 44, quoting with approval Cullity J. in
Vezina v. Loblaw Cos.
(2005), 17 C.P.C. (6th) 307 (Ont. S.C.), at para. 25. The motion judge held, at
    para. 149, that the plaintiff met this burden because there is a factual basis
    for the claimed systemic breaches of Scotiabanks duties that could support an
    aggregate assessment.

[112]

The motion judge
    relied on
Markson
, at para. 42,

for the proposition that aggregate assessments provide a means of
    avoiding the potentially unconscionable result of a wrong eluding an effective
    remedy. And he accepted the plaintiffs expert evidence that there are
    methods available, including statistical and sampling methods, that could
    assist the court [at a common issues trial] in determining the amount of an
    aggregate assessment and an appropriate method of distribution (at para. 151).

[113]

The Divisional
    Court agreed with the motion judges conclusion that there is a reasonable
    likelihood that s. 24(1) would be satisfied. Regarding the condition in s.
    24(1)(b), Harvison Young J. observed, at para. 128, that the systemic nature of
    the plaintiffs claim is such that potential class-wide liability will exist on
    a showing that Scotiabank exposed all class members to a direct risk of harm
    and that at least some of them suffered harm as a result. Regarding the
    condition in s. 24(1)(c), Harvison Young J. accepted that the expert evidence
    shows there are statistical and sampling methods available to determine an
    aggregate assessment and an appropriate method of distribution (at para. 129). In
    her view, the appellant had not demonstrated any palpable and overriding error
    in the motion judges factual finding on this point (at para.132).

[114]

I agree with the
    appellant that the courts below erred in law in concluding there is a
    reasonable likelihood that all of the preconditions in s. 24(1) can be met in
    this case. In particular, the courts below erred in interpreting the
    requirement in s. 24(1)(c).

(a)

General
    Principles for Interpreting s. 24(1) of the
CPA

[115]

When discussing
    the availability of an aggregate assessment of damages under s. 24(1) of the
CPA
,
    it is important to be precise about what is meant by the term aggregate in
    the class action context. Used loosely, the term simply refers to the
    collective adjudication of claims that are common to multiple individuals. The
    use of the term in this manner must be distinguished from the use of the term
    in the context of s. 24(1).

[116]

In
Anderson
    v. Wilson
(1999), 44 O.R. (3d) 673, leave to appeal refused, [1999]
    S.C.C.A. No. 476, this court discussed the appropriateness of certifying a
    class action involving claims for mental distress in a case where class members
    were notified by public health authorities that they may have been infected
    with Hepatitis B at clinics operated by the defendant. Carthy J.A., writing for
    the court, made the following comment, at pp. 679-80:

There are many persons with the same complaint, each of which
    would typically represent a modest claim that would not itself justify an
    independent action.
In addition, the nature of the overall claim lends
    itself to aggregate treatment because individual reactions to the notices would
    likely be similar in each case
- fear of a serious infection and anxiety
    during the waiting period for a test result. If evidence from patients to
    support such reactions to the notices is necessary, it would probably suffice
    to hear from a few typical claimants. The balance of the evidence as to liability
    would relate to the conduct of the clinics, the reaction of the Public Health
    Authorities and foreseeability issues. [Emphasis added.]

[117]

In
Healey v.
    Lakeridge Health Corp.
, 2011 ONCA 55, 103 O.R. (3d) 401, the appellants
    suggested that Carthy J.A.s use of the term aggregate in the above passage supports
    the proposition that an aggregate assessment of damages is available under s.
    24(1) where damages are sought on behalf of class members for psychological
    injury. On behalf of a five-judge panel of this court, Sharpe J.A. explained,
    at para. 74, that this passage from
Anderson
does not speak to the
    availability of aggregate damages under s. 24(1). Rather, Carthy J.A. was
    merely referring to the appropriateness of a class proceeding for advancing individual
    claims on an aggregate basis. He was not addressing whether damages for
    mental distress could be dealt with by resort to s. 24(1).

[118]

The
Report
    of the Attorney Generals Advisory Committee on Class Action Reform
,
    (Toronto: Ministry of the Attorney General of Ontario, 1990) (Chair: Michael G.
    Cochrane) (A.G.s Report) explains when it may be appropriate to assess a
    defendants liability on an aggregate basis. The Report states, at p. 43:

[W]here monetary relief is sought by the class and
    liability is not in issue (e.g. liability is admitted) special methods of
    establishing the quantum may be appropriate. It may be impractical, for
    example, to require thousands of class members to individually prove their
    claims as they would in an ordinary proceeding. In such a case the court should
    be permitted to determine the total aggregate of the defendants liability if
    to do so can be reasonably achieved.

[119]

Section 24(1)
    establishes three preconditions that must be met for a court to determine the
    aggregate amount of monetary relief for which a defendant is liable.

[120]

First, s.
    24(1)(a) requires that monetary relief is claimed on behalf of some or all
    class members. This condition is easily understood and applied. I would simply
    point out that s. 24(1) may be available when there is a claim on behalf of
    some or all class members for either damages or restitutionary relief in the
    form of a monetary payment.

[121]

Second, s.
    24(1)(b) provides that no questions of fact or law other than those relating
    to the assessment of monetary relief remain to be determined in order to
    establish the amount of the defendants monetary liability. As the passage
    cited above from the A.G.s Report indicates, condition (b) may be satisfied in
    two situations:

i)

where the
    defendant concedes liability to some or all members of the class; or

ii)

where the
    resolution of the common issues is capable of determining the defendants
    liability to some or all members of the class.

[122]

Rosenberg J.A.
    in
Markson
, at para. 48, commented as follows about the second
    situation in which s. 24(1)(b) may be satisfied:

In my view, condition (b) is satisfied where potential
    liability can be established on a class-wide basis, but entitlement to monetary
    relief may depend on individual assessments. Or, in the words of s.
    24(1)(b), where the only questions of fact or law that remain to be determined
    concern assessment of monetary relief.

[123]

Markson
stands for the proposition that an aggregate assessment of monetary relief may
    be appropriate where the defendants liability to at least some members of the
    class will be established through the resolution of the certified common issues,
    assuming those issues are decided in favour of the class. This is what is meant
    by the statement in
Markson
that s. 24(1)(b) is satisfied where
    potential liability can be established on a class-wide basis. The expression
    potential liability  simply reflects an assumption that the common issues
    will be resolved in favour of the class. This presumption is appropriate at the
    certification stage, where the merits of the action are not in issue.

[124]

There is a
    crucial distinction between the test for certifying common issues under s.
    5(1)(c) and the question of whether an aggregate assessment of monetary relief
    may be certified as a common issue. As referred to above, at para. 81, and as
    amply developed in class proceedings jurisprudence, the proposed common issues
    do not have to be determinative of the defendants liability to members of the
    class for an action to be certified. In contrast, the language of s. 24(1)(b)
    reveals that in order to be an appropriate case for an aggregate assessment,
    the resolution of the common issues must be capable of establishing the
    defendants monetary liability to at least some members of the class. It is not
    enough that the resolution of the common issues could lead to injunctive or
    declaratory relief in favour of the class.

[125]

Thus, in cases
    where the defendant does not concede liability for a wrong that gives rise to
    monetary relief, the question of whether s. 24(1)(b) could be satisfied
    requires parsing out the elements of the cause of action that must be proven to
    establish the defendants monetary liability to some or all members of the
    class. If it is possible for these elements to be established through the
    resolution of the common issues, then the requirements of s. 24(1)(b) are
    capable of being met.

[126]

Finally, s.
    24(1)(c) states that the aggregate of the defendants liability can reasonably
    be determined without proof by individual class members. This provision is
    directed at those situations where the monetary liability to some or all of the
    class is ascertainable on a global basis, and is not contingent on proof from
    individual class members as to the quantum of monetary relief owed to them. In
    other words, it is a figure arrived at through an aggregate assessment of
    global damages, as opposed to through an aggregation of individual claims
    requiring proof from individual class members. I would describe the latter
    calculation as a bottom-up approach whereas the statute envisages that the
    assessment under s. 24(1) be top down.

[127]

Markson
and
Cassano
a
re examples of cases where both conditions (b) and
    (c) of s. 24(1) were satisfied. Condition (b) was satisfied because the
    resolution of the common issues could potentially establish the defendants
    liability for a wrong giving rise to monetary relief to at least some members
    of the class. Condition (c) was satisfied because it was possible to reasonably
    assess the quantum of monetary liability without proof by individual class
    members. In both cases, the information needed for assessing the quantum of monetary
    relief was available in the form of documentary evidence from the respective defendants
    own transactional records.

(b)

Applying
    the General Principles to this Case

[128]

There is
    obviously no dispute that monetary relief is claimed on behalf of the class
    members, as required by s. 24(1)(a). The representative plaintiff is claiming
    both damages and restitutionary relief by way of monetary payment through an
    order for disgorgement.

[129]

The next
    question is whether s. 24(1)(b) is capable of being satisfied. This issue turns
    on whether the resolution of the common issues has the potential to determine Scotiabanks
    liability for monetary relief to some or all of the class members.

[130]

Resolving common
    issues 4 and 5 in favour of the class would significantly contribute to
    establishing Scotiabanks liability for breach of contract, including the
    alleged breach of a duty of good faith, and liability based on the claims of
    negligence and unjust enrichment. However, the resolution of these issues, as
    framed in common issues 4 and 5, would not be determinative of Scotiabanks
    liability for damages or restitutionary relief to some or all members of the
    class. This is because common issues 4 and 5, as presently worded, do not raise
    the question whether the class members were actually required or permitted to
    perform overtime work for which they were not compensated. Unless class members
    were required or permitted to perform overtime work, the defendant would not
    have had a duty to compensate them for such work.

[131]

Nonetheless, this
    outstanding element is at least capable of being resolved commonly, as
    suggested by common issue 6(c). In common issue 6(c), the respondent proposed
    the question whether  to the extent that Scotiabank breached its alleged duty
    to implement and maintain a system to ensure that common issues 4 and 5 were
    met  Scotiabank thereby required or permitted all uncompensated hours by class
    members. As noted, I am of the view that common issues 6(a) and 6(b) add
    nothing of substance to common issues 4 and 5. However, by combining common
    issue 6(c) with common issues 4 and 5, the final component for establishing
    potential liability to all class members is in place. The revised version of
    this common issue would read:

If the answer to common issues 4 (b) or 5 (b) is yes, and to
    the extent found necessary by the common issues trial judge, did the defendant
    thereby require or permit all uncompensated hours of the class members?

[132]

There is a basis
    in fact for common issue 6(c) in the evidence adduced on the motion from the
    representative plaintiff and other class members, which provides some support for
    the plaintiffs allegations that: class members were regularly required to work
    overtime in order to complete the ordinary duties of their employment; Scotiabank
    encouraged class members to work overtime; Scotiabanks system, such as it
    was, put the onus on employees to obtain prior authorization, and for much of
    the class period, did not explicitly allow for approval after the fact; and, due
    to the nature of their work, it was very difficult for class members to obtain
    pre-approval of overtime work: see the motion judges reasons, at para. 123. If
    a trial judge were to find that the evidence adduced at the common issues trial
    substantiated these allegations, then he or she might find that there is an evidentiary
    basis supporting a conclusion that all uncompensated overtime hours were
    required or permitted by Scotiabank.

[133]

I recognize that
    in this case not all class members may have actually worked overtime or have
    worked overtime that went uncompensated. This does not mean that s. 24(1)(b) is
    not capable of being satisfied. The statute clearly distinguishes between
    liability for monetary relief and entitlement by individual class members to
    share in an award of monetary relief. The distinction drawn in s. 24 of the
CPA
between the need to prove liability on the part of the defendant for monetary
    relief and the question of entitlement on the part of individual class members
    to receive a portion of this relief was explained in
Markson
, at para.
    48:

Section 24(3) provides, in part, that, In deciding whether to
    make an order under subsection (2), the court shall consider whether it
    would be impractical or inefficient to identify the class members entitled to
    share in the award. The subsection therefore contemplates that an aggregate
    award will be appropriate notwithstanding that identifying the individual class
    members entitled to damages and determining the amount cannot be done except on
    a case-by-case basis, which may be impractical or inefficient.

[134]

Moreover, s.
    24(2) contemplates distributing a share of an aggregate award on an average or
    proportional basis to some or all individual class members. In other words, an
    aggregate assessment of damages may be made even if it is impractical or
    inefficient to determine the quantum of relief to which individual class
    members are entitled. Accordingly, the prospect that it may be difficult or
    even impossible for individual class members to prove the amount of unpaid
    overtime that they were required or permitted to perform during the class
    period does not negate a conclusion that s. 24(1)(b) is capable of being
    satisfied.

[135]

However, what
    cannot be overcome in this case is condition (c) in s. 24(1), which requires
    that the aggregate or a part of the defendants liability to some or all class
    members can reasonably be determined without proof by individual class
    members. The respondents position is that statistical evidence can be used to
    avoid requiring proof by individual class members on the issue of damages.

[136]

Professor
    Richard Drogin, an expert in statistics, gave evidence on behalf of the
    plaintiff at the certification motion. He opined that it would be possible to
    conduct a random sampling of the class members to establish a basis for an
    aggregate assessment of damages. His proposed procedure would involve receiving
    out-of-court sworn testimony from a random sampling of individual class
    members, whose evidence would be considered as representative testimony for the
    class as a whole. Professor Drogins proposal for arriving at an aggregate
    assessment of damages posits that the court would decide liability for unpaid
    overtime to each person in the random sample based on the evidence obtained
    from the out-of-court examinations. He opined that, because the courts
    findings with regard to unpaid overtime worked would be for a random sample,
    these results could be reliably projected to the class as a whole.

[137]

The plaintiffs
    proposed procedure for arriving at a global damages figure is antithetical to
    the requirement in s. 24(1)(c) that the aggregate amount of the defendants
    liability can reasonably be determined without proof by individual class
    members. In order to give effect to Professor Drogins proposal, the language
    used by the legislature would have to be can reasonably be determined without
    proof by
all of the

individual class members. But the
    qualifying words  all of the  are not present in the provision. While
    Professor Drogins proposed method is based on proof from a limited subsection
    of the class, it still impermissibly requires proof from individual class
    members in order to arrive at an aggregate damages figure.

[138]

The foregoing is
    not to be taken as a general prohibition on statistical evidence in assessing
    damages. Statistical evidence, including that drawn from findings made at
    individual hearings, may well be appropriately used in certain contexts, such
    as where the court is providing directions for hearings to be conducted under
    s. 25 of the
CPA
.
This point will be further discussed below,
    at paras. 143-44.

[139]

To summarize,
    an aggregate assessment of monetary relief may only be certified as a common
    issue where resolving the other certifiable common issues could be
    determinative of monetary liability and where the quantum of damages could
    reasonably be calculated without proof by individual class members. The
    latter condition is not satisfied here.

[140]

Before leaving
    this point, I note that I am mindful of the concerns expressed in
Markson
,
    at para. 42, and by the motion judge, at para. 130, that in some cases, a wrong
    could go without a remedy because of the prior conduct of the defendant.

[141]

As discussed
    above, the facts in
Markson
are materially different than those here
    and therefore gave rise to different considerations. In
Markson
,
the
    records for determining the aggregate amount of relief owed by the defendant
    existed, but the difficulty and expense of actually calculating the amount was
    at issue. The proposed statistical sampling in
Markson
was based on recourse to t
he defendants
    own undisputed records. There was no prejudice to the defendant in the use of
    its own records as the evidentiary basis for a statistical analysis of the
    aggregate amount of monetary relief.  In contrast, in this case, the records of
    the amount of unpaid overtime work that class members were required or
    permitted to perform are allegedly either incomplete or non-existent. Indeed, the
    propriety of how Scotiabank kept records of hours worked is included as a
    common issue.

[142]

I recognize
    that a liberal and purposive approach should be taken in interpreting the
CPA
.
    However, in my view, it is simply not open to the court to attempt to fashion a
    remedy that would run afoul of an essential element of the statutory language.
    I reach this conclusion regardless of how the common issues trial judge
    ultimately resolves the common issue of the propriety of Scotiabanks record-keeping
    practices.

[143]

Moreover, I do
    not find it necessary to stretch the wording of s. 24(1)(c), since other
    provisions of the
CPA
provide ample authority for the common issues
    trial judge to develop procedures for resolving individual claims in a way that
    will provide an effective remedy. By way of example, s. 25(1) of the
CPA
provides the court with the power to direct hearings to determine individual
    issues. Section 25(2) empowers the court to give any necessary directions
    relating to the procedures to be followed in conducting these hearings. In
    giving such directions, s. 25(3) instructs the court to choose the least
    expensive and most expeditious method of determining the issues that is
    consistent with justice to class members and the parties. Section 25(3) further
    provides that the court may:

(a) dispense with any procedural step that it
    considers unnecessary; and

(b) authorize any special procedural steps, including
    steps relating to discovery, and any special rules, including rules relating to
    admission of evidence and means of proof, that it considers appropriate.

[144]

In my view, s.
    25(3)(b) affords wide latitude to authorize the rules of proof at such further
    hearings. The presiding judge would have the option of considering if
    statistical information derived from random sampling, or other methods, would
    be of assistance in calculating the quantum of individual class members
    entitlement to monetary relief.

[145]

Concluding on
    this point, I am satisfied that the courts below erred in principle in interpreting
    s. 24(1) of the
CPA
. I would strike common issue 10(a) concerning the
    possibility of conducting an aggregate assessment of damages.

(3)

No Error in the Preferable
    Procedure Analysis

[146]

The appellant
    submitted in its factum that the administrative proceedings established by Part
    III of the
Code
to investigate and adjudicate claims for overtime pay
    (Part III proceedings) are not only the preferable means of resolving class
    members claims, but the exclusive means of doing so. In oral argument, counsel
    did not press the exclusive jurisdiction point. He instead asked the court to
    find that Part III proceedings constitute the preferable procedure for resolving
    the class members claims. However, somewhat equivocally in my view, counsel in
    oral argument continued to rely on the British Columbia Court of Appeals
    decision in
Macaraeg v. E Care Contact Centers Ltd.
, 2008 BCCA 182, 77
    B.C.L.R. (4th) 205, at para. 82, leave to appeal refused, [2008] S.C.C.A. No.
    293. Specifically, he relied on
Macaraeg
for the proposition that it
    would be wrong for the court to assume a jurisdiction parallel to that of
    specialty labour tribunals to deal with the class members claims. Counsel also
    argued that allowing the class action to proceed would frustrate the
    comprehensive legislative scheme for resolving claims for unpaid overtime,
    which would be contrary to the authority of
St. Anne Nackawic Pulp &
    Paper Co. Ltd. v. Canadian Paper Workers Union, Local 219
, [1986] 1 S.C.R.
    704.

[147]

The appellant
    has not challenged the motion judges ruling on the Rule 21 motion that the
    court has subject matter jurisdiction over the class members claims. Thus, in
    my view, it would not be appropriate for this court to decide the exclusive
    jurisdiction issue when dealing with the question of preferable procedure under
    s. 5(1)(d) of the
CPA
.

[148]

Having said
    that, I note that it would be very difficult, if not impossible, for counsel to
    reconcile the exclusive jurisdiction argument advanced in his factum with his
    concession in oral argument that the terms of the
Code
are
    incorporated into the class members contracts of employment. If the terms of
    the class members contracts of employment create an entitlement to receive
    compensation for overtime work that is required or permitted by the employer,
    then the court has jurisdiction to enforce that contractual obligation. The
    terms of the
Code

make
    this clear. Section 261 states:

261. No civil remedy of an employee against his
    employer for arrears of wages is suspended or affected by this Part.

[149]

Of course, it
    remains for the trial judge to determine if the terms of the
Code
are
    implied into the contracts, and, if necessary, to determine whether the terms
    are implied as a matter of fact or a matter of law: see
Haldane v. Shelbar
    Enterprises Ltd.

(1999), 46 O.R. (3d) 206 (C.A.), at paras. 14-15.

[150]

I will now turn
    to why the appellants preferable procedure argument fails. The Supreme Court
    of Canada in
Hollick
, at para. 28, established that there are two
    elements of the preferable procedure analysis: (i) determining whether the
    class action would be a fair, efficient and manageable method of advancing the
    claims, and; (ii) determining whether a class proceeding would be preferable to
    other reasonably available means of resolving the class members claims.

(a)

Whether a Class Action Would be a Fair, Efficient and Manageable Method
    of Advancing the Class Members Claims

[151]

The appellant
    contends that the numerous individual claims for unpaid overtime would
    inevitably overwhelm a class proceeding. The appellant points to
Webb v.
    K-Mart Canada Ltd.
(1999), 45 O.R. (3d) 389 (S.C.) and
Webb v. 3584747
    Canada Inc.
(2005), 40 C.C.E.L. (3d) 74 (Ont. S.C.) as telling a
    cautionary tale against using the class proceeding mechanism in the employment
    law context.

[152]

In
Webb v.
    K-Mart
, the court certified a class action for wrongful dismissal against
    K-Mart Canada Ltd. The class consists of over 3,000 former K-Mart employees
    from across Canada who were dismissed following K-Marts merger with the
    Hudsons Bay Company. The court approved a litigation plan that provided for
    the determination of individual issues related to reasonable notice and
    mitigation through summary hearings before retired judges who were members of a
    private arbitration firm.

[153]

The arbitration
    process proved to be more costly than expected and the expense of individual
    arbitrations typically exceeded the amount awarded. Six years after
    certification, only 24 of the 1,000 cases that were intended to proceed to a
    hearing had actually been heard. Class counsel applied to the court to amend
    the hearing system and counsel for K-Mart brought a cross-motion to decertify
    the class proceeding. The court dismissed the motion to decertify and granted
    the motion to vary the hearing process by providing for the appointment of
    different referees who charged less for their services.

[154]

The appellant
    submits that the claims process for determining whether overtime compensation
    is owed to individual class members and, if so, the amount owed to each, would
    not be any more manageable or efficient than was the individual hearing process
    for determining reasonable notice in
Webb
.

[155]

It is
    well-established that the fairness, efficiency and manageability of a class
    proceeding are all affected where the substance and complexity of the individual
    issues overwhelm the common issues: see Ward Branch,
Class Actions in
    Canada
, looseleaf (Aurora, Ont.: Canada Law Book, 2007), at para. 4.920,
    citing
Carom v. Bre-X Minerals Ltd.
(1998), 20 C.P.C. (4th) 163, and
    supplementary reasons (1998), 20 C.P.C. (4th) 187 (Ont. Ct. (Gen. Div.);
Pearson
    v. Inco Ltd.
(2002), 27 C.P.C. (5th) 171 (Ont. S.C.), affd (2004), 183
    O.A.C. 168 (Div. Ct.), appeal to Ont. C.A. allowed, (2005), 78 O.R. (3d) 641.
    However, I find that two of the motion judges five reasons, at paras. 159-60,
    for dismissing the appellants arguments on preferability are responsive to the
    fair, efficient and manageable issue:

(1) it is not a foregone conclusion that individual trials will
    be required; and

(2) even if individual assessments of entitlement and damages
    are needed, there is every reason to believe that a common issues trial judge,
    assisted by the parties and their qualified experts, will be able to design
    and successfully implement an efficient process.

[156]

I agree with the
    motion judges first observation that it is not a foregone conclusion that
    individual trials will be required notwithstanding my view that an aggregate
    assessment of damages under s. 24(1) is not available. I also share the motion
    judges confidence that  if the ultimate finding is that compensation should
    be paid to class members  there is every reason to believe that a common
    issues trial judge, assisted by the parties and their experts, will be able to
    design and successfully implement a satisfactory compensation system.

[157]

The reason for
    this confidence, as explained in
Cassano
, at para. 60, is that the
CPA
is a powerful procedural mechanism that permits the court to take a variety of
    approaches in resolving the claims of class members. As further explained in
Cassano
,
    at para. 64:

[W]hat is called for in addressing the preferable procedure
    requirement is to look not just at the common issues trial, but at the other
    procedural options for conducting the class action litigation pursuant to the
CPA
.
In this regard, I note that s. 25 of the
CPA
confers broad
    jurisdiction on the common issues trial judge to fashion procedures to be
    followed where, among other things, damages cannot be assessed in the
    aggregate. This section deals specifically with individual participation in a
    class proceeding following a favourable determination on the common issues.

[158]

I referred above
    to s. 25 of the
CPA
. Where
individual class
    members are required to participate in order to decide individual issues, s.
25(1) of the
CPA
authorizes the court to appoint one or more persons
    to conduct a reference (s. 25(1)(b)) and
with the
    consent of the parties, direct that the issues be determined in any other
    manner
(s. 25(1)(c)). The effect of these provisions is that the court
    may direct that individual claims to unpaid overtime be determined through
    procedures other than individual trials.

[159]

As the motion
    judge recounted in his reasons, at paras. 31-33, Scotiabank itself implemented
    a summary procedure for retroactively compensating some 600 overtime claims by
    employees who had been classified as Level 6 and who had been treated as
    ineligible for overtime prior to October 1, 2008. Scotiabank structured a
    claims process such that the affected employees could complete a form
    indicating the amount of additional hours they had worked without being
    compensated through time off or other special work arrangements from November
    1, 2005 to October 1, 2008. Employees were encouraged, but not required, to
    provide supporting documents or records if possible. If no supporting records
    were available, employees were required to include supporting commentary for
    their request.

[160]

Each employees
    request was reviewed by a superior for reasonableness based on his/her
    knowledge of the employees working hours, the work environment, and any
    consideration the employee may have previously received for the time worked. If
    a manager disagreed with an employees request for overtime compensation, then
    an Employee Relations team within HR Shared Services would review the
    request.

[161]

Although it is
    not a perfect template, this procedure demonstrates that individual claims for
    unpaid overtime can be dealt with efficiently. A process whereby employees
    submit claims that are reviewed by a manager or supervisor, with any dispute
    resolution being conducted by a third party, is not wholly different from
    summary procedures using statements of evidence and adjudication.

[162]

I caution that
    this procedural example is not intended to fetter the discretion of the common
    issues trial judge in any way. He or she would determine both whether
    individual assessments were necessary and, if so, the manner in which those
    assessments should be conducted.

(b)

Whether a Class Action is Preferable to Other Reasonably Available Means
    for Resolving the Class Members Claims

[163]

The appellant
    further submits that resolving the class members claims through Part III proceedings
    would more efficiently fulfill the goals of the
CPA
: judicial economy, access to justice and behaviour
    modification
. According to the appellant, the availability of Part
    III proceedings fully answers the access to justice question. Moreover, the
    appellant argues that Part III proceedings provide access to justice in a way
    that is less formal than a class proceeding and that does not burden the
    resources of the judiciary, thereby meeting the judicial economy objective. In
    addition, the appellant contends that the goal of behaviour modification has
    been achieved considering that Scotiabank has already revised its overtime
    policy and record-keeping procedures.

[164]

The recent
    decision in
Fischer v. IG Investment Management Ltd.
, 2012 ONCA 47, 109
    O.R. (3d) 498, at paras. 44-45, explains how the second element of the
    preferability analysis is to be conducted:

The second element of the preferability inquiry described in
Hollick
requires a comparative analysis as to whether a class action would be
    preferable to other reasonably available means of resolving the class members
    claims. The preferability inquiry must necessarily take into account the
    central characteristics of the proposed alternative proceeding as a means of
    resolving the claims. This exercise includes, but is not limited to,
    considering the following characteristics of the alternative proceeding: the
    impartiality and independence of the forum; the scope and nature of the
    alternative forums jurisdiction and remedial powers; the procedural safeguards
    that apply in the alternative proceeding, including the right to participate
    either in person or through counsel and the transparency of the decision-making
    process; and the accessibility of the alternative proceeding, including such
    factors as the costs associated with accessing the process and the convenience
    of doing so.

These characteristics must be considered in relation to the
    type of liability and damages issues raised by the class members claims
    against the defendants in the putative class action and the manner in which
    they are addressed, if at all, in the alternative proceeding. The court must
    then compare these characteristics to those of a class proceeding through the
    lens of the goals of the
CPA
: judicial economy, access to justice and
    behaviour modification. [Footnotes omitted.]

As noted in
Fischer
, at para. 46, not all of
    these characteristics will necessarily be relevant in a given case.

[165]

Relevant to the
    comparative analysis required in this case are the following two
    characteristics of Part III proceedings: (i) the scope and nature of the
    alternative forums jurisdiction and remedial powers; and (ii) the
    accessibility of the alternative proceeding. Comparing these characteristics of
    Part III proceedings with those of a class proceeding supports the conclusion
    of the courts below that the class proceeding is the preferable procedure for
    resolving the class members claims. I note that I agree in substance with the
    preferability analysis of Lax J. in
Fresco,
at paras. 95-98, some of
    which the motion judge relied on in this case. While Lax J. did not have the
    benefit of
Fischer
, the crux of her approach is consistent with a
    focus on the two identified factors from
Fischer
.

(i)

The scope and nature
    of the alternative forums jurisdiction and remedial powers

[166]

The appellants
    arguments for preferring Part III proceedings over a class proceeding once
    again fundamentally misstate the nature of the claims asserted on behalf of the
    class members. These claims are framed in breach of contract, breach of a duty
    of good faith, negligence and unjust enrichment  causes of action over which
    the administrative actors under the
Code
have no jurisdiction: see Lax
    J.s decision in
Fresco
, at para. 98. Inspectors and referees appointed
    under the
Code
have no jurisdiction to investigate a claim that an
    employers company-wide overtime policy breaches the terms of its employees employment
    contracts. Nor do they have jurisdiction to determine if an employer has been
    unjustly enriched by a failure to comply with its duties to pay overtime on a
    company-wide basis. Moreover, the pleadings seek declaratory and injunctive forms
    of relief and punitive damages that inspectors and referees lack jurisdiction to
    grant.

[167]

Given the type
    of liability and damages issues raised by the class members claims, the
    limitations on the jurisdiction and remedial authority of inspectors and
    referees under the
Code
would thwart rather than fulfill the central
CPA
goal of promoting access to justice.

(ii)

The accessibility of the alternative proceeding

[168]

The courts below accepted that class members may be reluctant to
    bring forward individual claims for uncompensated overtime using
Part III proceedings due to
fear of
    affecting their employment status and advancement: see the motion judges
    reasons, at paras. 161-62, and the Divisional Courts reasons, at paras. 135
    and 137. The motion judge in
Fresco
, at paras. 97-98, referenced a
    report by Professor Harry Arthurs,
Fairness at Work: Federal Labour
    Standards for the 21st Century
(Ottawa: Human Resources and Skills
    Development Canada, 2006) (
Arthurs Report
),
    as did both courts below in this case by reference to the
Fresco
decision.
    The
Arthurs Report
, at pp.
    191-92, reveals that only a very small fraction of federally-regulated
    employees (0.36 percent) advance complaints against their employers through Part
    III proceedings and some 92 percent of such complaints are against former
    employers.

[169]

In addition to fear of employer reprisals, there are also costs
    associated with using Part III proceedings that may deter class members from
    bringing complaints under the
Code
for relatively small amounts of unpaid overtime
. The
Arthurs Report notes
, at p. 222:

However, employees may have to incur out-of-pocket expenses to
    pursue their rights. They may have to take time off work to attend a hearing,
    travel to or communicate with a Labour Program office, or hire a lawyer or
    other advocate to represent them in certain types of proceedings. Given the
    relatively small amounts usually claimed in Part III proceedings, such
    expenditures may seriously erode the amount recovered, to the point where
    employees are in effect deterred from seeking remedies at all.

[170]

The statistics regarding the infrequent use of Part III proceedings
    by current employees and the costs associated with this use support the
    conclusion that the goal of access to justice would be better advanced by a
    class proceeding. The class proceeding relieves individual class members of the
    need to incur out-of-pocket expenses and the need to hire a lawyer or other
    advocate to represent them. Class actions also offer judicial oversight, which
    would deter any potential employer retaliation against employees taking part in
    the litigation.

[171]

Thus, in my view, the courts below committed no error in
    concluding that the preferable procedure requirement is met.

G.

CONCLUSION AND DISPOSITION

[172]

For these
    reasons, I would allow the appeal from the Divisional Courts order upholding the
    motion judges certification order to the limited extent that I would strike
    proposed common issue 10(a) on the basis that an aggregate assessment of
    damages is not available in this case. I would also strike common issues 6(a)
    and 6(b) on the basis that these alleged duties add nothing of substance to the
    duty alleged in common issues 4 and 5. In all other respects, I would dismiss
    the appeal from the Divisional Courts order.

[173]

The party
    demanding costs may file brief written submissions on costs within 10 days of
    the release of these reasons. Any responding submissions shall be filed within 10
    days thereafter.

Released: WKW June 26, 2012

W.K. Winkler CJO

I agree, S.E. Lang
    J.A.

I agree David Watt
    J.A.

APPENDIX

Plaintiffs Revised List of Proposed
    Common Issues

Group
    A: Breach of Contract

1.       What are
    the relevant terms (express, implied or otherwise) of the Class Members
    contracts of employment with Scotiabank respecting:

a. regular and overtime hours of
    work?

b. recording of the hours worked by
    Class Members?

c. paid breaks?

d. compensation for hours worked by
    Class Members?

2.       Did Scotiabank breach any of the foregoing
    contractual terms? If so, how?

Group
    B: Systemic Defects

3.       a. Are
    any parts of Scotiabanks overtime policy (current or past) unlawful, void or
    unenforceable for contravening the
Canada Labour Code
?
*

b. If the answer to 3(a) is yes,
    which provisions are unlawful, void or unenforceable?
*

4.       a. Did
    Scotiabank have a duty (in contract or otherwise) to monitor and accurately
    record all hours worked by Class Members and ensure that Class Members were
    appropriately compensated for same?

b. If the answer to 4(a) is yes,
    did the Bank breach that duty?

5.       a. Did
    Scotiabank have a duty (in contract or otherwise) to prevent Class Members from
    working hours for which the Bank did not wish or intend to compensate?

b. If the answer to 5(a) is yes,
    did the Defendant breach that duty?

6.        a. Did
    Scotiabank have a duty (in contract or otherwise) to implement and maintain an
    effective and reasonable system, procedure and practices which ensured that the
    duties set out in common issues 4 and 5 above, were satisfied for all class
    members?
**

b. If the answer to 6(a) is yes
    did Scotiabank breach that duty?
**

c. If the answer to 6 (b) is yes,
    and to the extent found necessary by the common issues trial judge, did the
    Defendant thereby require or permit all uncompensated hours of the Class
    Members?
***

Group
    C: Misclassification

7.       Did
    Scotiabank breach its contracts of employment with the Class (or some of the
    Class Members) or was it unjustly enriched, by denying eligibility for overtime
    compensation to some class members whom Scotiabank classified as level 06 or
    above?

Group
    D: Unjust Enrichment

8.       a. Was
    Scotiabank enriched by failing to pay Class Members appropriately for all their
    hours worked?

b. If the answer to 8(a) is yes,
    did the Class suffer a corresponding deprivation?

Group
    F: Remedy & Damages

9.       If the
    answer to any of the foregoing common issues is yes, what remedies are Class
    Members entitled to?

10.     If the
    answer to any of the common issues is yes, is Scotiabank potentially liable
    on a class-wide basis? If yes:

a. Can damages be assessed on an
    aggregate basis? If yes:

i. Can aggregate damages be
    assessed in whole or part on the basis of statistical evidence, including
    statistical evidence based on random sampling?

ii. What is the quantum of
    aggregate damages owed to Class Members?

iii. What is the appropriate
    method or procedure for distributing the aggregate damages award to Class
    Members?**

11.     Is the
    Class entitled to an award of aggravated, exemplary or punitive damages based
    upon the Banks conduct? If yes:

a. Can the damages award be
    determined on an aggregate basis?

b. What is the appropriate method
    or procedure for distributing any aggregate aggravated, exemplary or punitive
    damages to Class Members?

12.     To the
    extent that the claims of Class Members raise non-common or individual issues,
    what are the appropriate, most efficient and cost effective procedures for
    determining same?
*

*
Not certified
per
the motion judges order.

**
Not certified in accordance with these reasons.

***
Certified with modification in
    accordance with these reasons.

[1]
Members
    of a different law firm recently brought a certification motion in an overtime
    class action in the banking sector in
Brown v. Canadian Imperial Bank of
    Commerce
, 2012 ONSC 2377, [2012] O.J. No. 1853. In that case, the
    representative plaintiffs alleged that their employer wrongly classified the
    putative class members as ineligible for overtime. The motion judge refused to
    certify the proceeding as a class action.

[2]
Scotiabank also moved to strike certain affidavit evidence filed by the
    plaintiff. The motion judge dismissed this motion and the Divisional Court
    upheld this order. Scotiabank is not appealing from this aspect of the
    Divisional Courts order.

[3]
Counsel for the respondent rose to advise the panel that this was the first
    time in the proceedings that Scotiabank had conceded that the
Code
provisions are incorporated into the contract. Counsel for the appellant
    responded that he had not been counsel in the courts below. Counsel for
    Scotiabank went on to acknowledge that the Initial Policy (which admittedly
    forms part of the employment contract of class members) states that it is based
    on the
Code
. He further acknowledged that, to the extent there is any
    inconsistency between the terms of the policy and the requirements of the
Code
,
    the terms of the policy would be void. Counsel went on to make it clear that he
    was not conceding preferable procedure.

[4]
The appellants submissions on the damages issues focused on the suitability of
    the proposed common issue of the availability of an aggregate assessment of
    damages arising from the claims for unpaid overtime as raised by common issue
    10(a).