) ) CINDY FULAWKA, Plaintiff v. Responding Party on the Motion, 2010 ONSC 2645

CITATION : Fulawka v. The Bank of Nova Scotia, 2010 ONSC 2645 Divisional Court File No.: 105/10 DATE: 20100505 ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT BETWEEN: ) ) CINDY FULAWKA, Plaintiff and Responding Party on the Motion – and – THE BANK OF NOVA SCOTIA, Defendant and Moving Party on the Motion )) )) )) )) )) ) David O’Connor, Adam Dewar and Louis Sokolov , Counsel for the Responding Party Robert L.

Armstrong, Mary Gleason and Jeremy Devereux , Counsel for the Moving Party ) ) ) HEARD at Toronto: April 30, 2010 REASONS: GREER J. : [ 1 ] The Bank of Nova Scotia (“Scotiabank”) moves for Leave to Appeal from the decision of Mr. Justice Strathy (“the Judge”) dated February 19, 2010 certifying this action as a class action. It also asks the Court to grant in full, Scotiabank’s motion to strike portions of the Statement of Claim of Cindy Fulawka (“the Plaintiff”) in the action, and to grant Scotiabank’s motion to strike the affidavit of Heidi Rubin and portions of the affidavit of Dr. Cristina Banks.

I shall refer to his decision throughout as “ Fulawka ”. [ 2 ] Scotiabank seeks leave to appeal the Judge’s decision to this Court on the grounds that: (

a) The decision of the Judge directly conflicts with the decision of Madam Justice Lax in Fresco v. Canadian Imperial Bank of Commerce , [2009] O.J. No. 2531 (S.C.J.) on matters involved in the proposed appeal and it is desirable that leave to appeal be granted; and (

b) There is good reason to doubt the correctness of the decision of the Judge and the proposed appeal involves matters of such

importance that leave to appeal should be granted. Some background facts [ 3 ] On December 10, 2007, Plaintiff’s counsel commenced this proposed class action against her employer, Scotiabank. At the commencement of the proposed class action the Plaintiff was not working in Scotiabank, as she had been on disability leave. She had a long employment history with Scotiabank both in Ontario and Saskatchewan. The proposed action claims damages in the amount of $250,000,000 on behalf of other current and former retail banking employees of Scotiabank for overtime payments they allege are owing to them.

In addition they claim $100,000,000 in punitive, aggravated and exemplary damages. [ 4 ] This proposed action was preceded by another proposed action also commenced by Plaintiff’s counsel against the Canadian Imperial Bank of Commerce (“CIBC”), also an overtime payments claim. It claims $500,000,000 in damages. Dara Fresco is the employee involved in this action, Fresco v. Canadian Imperial Bank of Commerce (“Fresco”). Fresco , says Scotiabank, was the first proposed overtime class action in Canada against a federally regulated employer subject to the provisions of the Canada Labour Code, R.S.C. 1985, c.

L-2 (“the Code ”). [ 5 ] It is Scotiabank’s position that the proposed common issues in both these proposed actions, and the arguments raised by counsel in both actions, “substantially overlap.” They say that the evidence relied on by the Plaintiffs in the two actions is very similar and that much of the expert evidence put forward by counsel for the Plaintiffs in both actions is “virtually identical”.

Counsel for Scotiabank has prepared an extremely detailed Chart which is attached to its Factum in support of its position, which draws the comparison between the two proposed actions as set out in their Pleadings. [ 6 ] There is also a second Chart, which sets out the comparison between the two banks’ overtime policies and the expert evidence, which was put forward by the counsel for both sets of Plaintiffs, in each proposed action.

That Chart also shows the similarities between the two proposed actions. [ 7 ] A third proposed class action was commenced by these same counsel on March 19, 2008, on behalf of Michael McCracken, as plaintiff, against his employer, Canadian National Railway.

It is also a proposed overtime action, also claiming damages in the amount of $250,000,000, as well as the same $100,000,000 being claimed for punitive, aggravated and exemplary damages. [ 8 ] Other proposed overtime proposed class actions were commenced between 2008 and 2010 against four additional employers, namely, KPMG, CIBC World Markets and BMO Nesbitt Burns Inc. It therefore can be seen that a number of such overtime proposed class actions has followed the Fresco and Fulawka actions. [ 9 ] Madam Justice Lax heard the Fresco certification motion in December 2008.

She released her decision on June 18, 2009, denying certification of that action. Fresco was appealed to this Court in late March 2010 and the decision remains under reserve. [ 10 ] The certification motion in Fulawka was heard on November 16-19, 2009 and the Judge released his decision on February 19, 2010, certifying the action as a class action. Scotiabank now seeks leave to appeal from that decision. [ 11 ] The Plaintiff sought to adjourn this Leave Motion, given that the Fresco decision is still under reserve. That request for an adjournment was refused.

The Test for Leave under Rule 62.02(4) [ 12 ] The Test for Leave to Appeal is set out in Rule 62.02(4) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 . It states that Leave shall not be granted unless one of the two subrules has been met. Each of those subrules, in itself, is a two-part test as follows: (

a) there is a conflicting decision by another judge or court in Ontario or elsewhere on the matter involved in the proposed appeal and it is, in the opinion of the judge hearing the motion, desirable that leave to appeal be granted; or (

b) there appears to the judge hearing the motion good reason to doubt the correctness of the order in question and the proposed appeal involves matters of such importance that, in his or her opinion, leave to appeal should be granted. [ 13 ] It is the position of Scotiabank that Leave should be granted and that I should find that it meets the tests under both subrules. The Plaintiff says that Fulawka has not met the test under either subrule and therefore the Motion must be dismissed.

The Decision of the Judge [ 14 ] In the Judge’s Decision to grant certification, he notes that the Scotiabank proposed class in Canada consists of, “…5,000 sales staff who worked in retail branches of the Bank of Nova Scotia (“Scotiabank”) from the year 2000 to the present…”.

He says these persons were “routinely required” to work outside their scheduled hours, without pay, to fulfill the demands of their jobs. [ 15 ] In paragraphs 2 and 3 of his Decision, the Judge says that there are “two particularly contentious issues on this motion.” The first issue arises from Scotiabank’s claim that the Plaintiff has asserted impermissible causes of action based on alleged breaches of the Code and that these do not pass the “cause of action” test in s. 5(1) (

a) of the Class Proceedings Act, 1992 , S.O. 1992, c.6 (the “ CPA ”). [ 16 ] Scotiabank also moved to strike certain paragraphs of the Plaintiff’s Amended Statement of Claim (“the Claim”). [ 17 ] The second issue relates to the requirement of ss. 5(1)(

c) of the CPA that the claims of the Class must raise common issues and whether the claims they put forward were sufficient to advance the claims of the Class Members to make them appropriate for certification. [ 18 ] In paragraph 4, the Judge concludes that “…there is an evidentiary basis in this case of systemic wrongs that gives rise to common issues, the resolution of which would advance the claim of every Class Member.” The Judge then went on to say why he

thought this action against Scotiabank differed from that of Fresco. [19] The Judge’s Decision is lengthy and covers the evidence before him. He outlines Scotiabank’s Overtime Policy and itsrecord-keeping system, including what he says are the systemic defects he sees in these policies and practices, the Motion to strikeaffidavits, the test for certification and its application to this case , the Fresco decision, the pleading of the Code, and the common issuesanalysis as it applies to this case. Leave under subrule 62.02(4)(

a) of the Test [20] Scotiabank says that on this test alone, Leave should be granted by the Court under subrule 62.02(4)(

a) of the test. It firstlypoints to the Fresco case as being the conflicting decision by another judge or court in Ontario on the matter involved in the proposedappeal. Fresco is a class action case in Ontario involving another chartered Canadian bank governed by the Code, and which involvesovertime claims similar to those in this case. It sees the two cases as “strikingly similar, and in many crucial respects identical.” [21] There is, however, says Scotiabank, a conflict of principle as seen from the findings in each case.

The Court in Fresco found,regardless of the evidence in the case, a class proceeding was not the appropriate way to resolve overtime issues.

The Judge in Fresco,says Scotiabank, found that, “… the lack of commonality cannot be overcome through allegations of systemic duties, a breach of impliedcontractual terms of duties of good faith.” On the other hand, says Scotiabank, the Judge in Fulawka held that a class action was theappropriate way to resolve the overtime claims of the class members because there were common issues and this was the way to resolvethem. [22] The Judge, in Fresco, in her Overview on p.1 of her Decision states: My reasons follow, but in brief

summary, it is my conclusion that this is not a proper case for certification and that a class proceeding isnot the preferable procedure for resolving the claims of class members or unpaid overtime. While some of the certification requirementscould be satisfied, the action lacks the essential element of commonality. In my opinion, there is no asserted common issue capable ofbeing determined on a class wide basis that would sufficiently advance this litigation to justify certification.

As for the issue of a systemic practice or policy, the Judge concludes in para. 6: It is my conclusion that there is no evidentiary foundation for this, but even if there were, this is not a case where systemic wrongdoingcan be resolved without examining the individual claims, thereby defeating the purpose of a class action. [23] Scotiabank says that these conclusions are conflicting with the conclusions reached by the Judge in Fulawka and they cannotbe reconciled. [24] Scotiabank also points to paragraph 31 of Fresco, where the Judge’s conclusions about the CIBC’s overtime policy and howan employee cannot foist services on and employer and expect to be paid conflict the Judge’s findings in Fulawka.

In addition, in Frescothe Judge says where the employer’s overtime policy contains a provision that requires prior authorization, the employee is not entitledto work overtime on his or her own initiative. There the Judge followed Chabaylo v. Koscis Transport Ltd., [2003] C.L.A.D. No.519 atparas. 4 and 10. [25] In para.70 of Fresco, the Judge says that the central flaw in the plaintiff’s case is that instances of unpaid overtime occur onan individual basis.

She says this lack of commonality cannot be overcome by certifying an issue that asks whether the defendant had aduty to prevent a series of in civil wrongs, without any basis for the existence of this duty and where the duty does not relate any pleadedcause of action. [26] Soctiabank says these findings are in stark contrast to the conclusions the Judge in Fulawka came to on strikingly similarevidence. Therefore, Scotiabank says that I should find that it is desirable under subrule 62.02(4)(

a) that Leave be granted, pointing tothe fact that this action is the first overtime class action certified in Canada against an employer subject to the Code.

It also says that theproposed appeal affects the other pending overtime class actions and potentially all employers in Canada. [27] It is Scotiabank’s position that the decision in Fulawka has brought into question “…the well-established line of authority thatholds that courts lack jurisdiction to hear labour, employment and human rights claims within the exclusive jurisdiction of thespecialised tribunals specifically created to adjudicate such claims.” It further says that where one Judge has chosen different principlesin coming to his or her decision when applying them, the two cases cannot be reconciled. [28] It is the Plaintiff’s position that Leave should not be granted under this subrule.

She says that there is no conflict between hercase and that of Fresco. The Plaintiff says that deference must be given to the Judge who certified the proceeding against Scotiabank.

She says that the trend on Leave Motions from such certifications “…is rarely given.” Certification is not the resolution of the parties’issues and it would defeat the goals of the Act to allow Leave under the circumstances of this case. [29] The Plaintiff says that on a Motion for Leave, “…public importance must transcend the interest of the parties and mustinvolve matters relevant to the development of the law and the administration of justice.” She disagrees with the position of Scotiabankthat this case engages matters of public importance.

Interference at this point in the procedure, says the Plaintiff, “…should be restrictedto matters of general principle or error in law.” Further, the Plaintiff says that the CPA must be liberally construed. [30] In Fulawka, the Court found that the five-part test for certification under section 5(1) of the CPA had been met and thereforecertification was granted. The Judge noted that the three goals of class proceedings, namely access to justice, judicial economy andbehaviour modification should be promoted. See: Hollick v. City of Toronto, 2001 SCC 68 , [2001] S.C.J. No.67 (S.C.C.) The

Plaintiff urges the Court to follow the “shift in the legal landscape”, that a somewhat more liberal approach should be taken in classproceedings. See: Cloud v. Canada (Attorney General), (ON CA), [2004] O.J. No. 4924 (C.A.). [31] The Plaintiff does not see Fresco, as a conflicting decision, just because a different result has emerged in Fulawka. She sees itonly a different judge exercising his or her discretion on the facts and coming to a different conclusion. She sees the two cases as simplyturning on different evidentiary findings. She sees no conflict in principle. Leave under subrule 62.02 (4)(b) [32] In order to obtain Leave under subrule 62.02(4)(

b) it must appear to the Judge hearing the Motion that there is good reason todoubt the correctness of the order in question and the proposed appeal must involve matters of such importance that, in his or heropinion, leave ought to be granted. See: Greslik v. Ontario Legal Aid Plan, (ON SC), [1988] O.J. No. 525 (Div. Ct.). Leave, however, may be granted even if the decision of the Court is very persuasive. See: 1176560 Ontario Ltd. v. Great Atlantic &Pacific co. of Canada Ltd., [2003] O.J. No. (1089 (Div.

Ct.) at para. 39. [33] The standard of review for errors of law is that of correctness and for errors of mixed fact and law is whether there is apalpable and overriding error. Scotiabank says that in Fulawka, the Judge certified all but one common issue and in so doing madesignificant errors in principle, as well as errors in fact. [34] It is Scotiabank’s position that the Judge in Fulawka made three overarching errors of principle in coming to the conclusionthat certification should take place under the CPA. It says that these errors are: 1.

It was wrong at law to hold that the terms of the Code may be implied by fact into the contracts of the class members, or may formthe content of implied duties of good faith or duties of care in negligence. It further says this finding was completely inconsistent withthe Court’s own finding that the Code does not give rise to a cause of action and cannot be enforced in the courts. 2. It was wrong to find there were common issues, when the very nature of the claims for overtime are, and can be inherentlyindividual. 3.

It was wrong to find that a class proceeding would be the preferable procedure when the case is “impossibly complex” , given thenumber of persons the class could encompass and given that Scotiabank already had its own overtime policies that are writtencontractual ones which were effective. [35] Scotiabank was successful in having some parts of the Plaintiff’s Amended Statement of Claim struck since the Code does notcreate a civil cause of action and the Court had no jurisdiction to enforce it. On the other hand, says Scotiabank, the Court erred inimplying certain provisions of the Code into the bank’s contracts.

It says that contractual terms may only be imposed in one of fourways, namely that is based on the operation of statute, it is a legal incident of the contract, it is based on the presumed intention of theparties, or it is based on usage or custom. Scotiabank says that none of those exceptions applies in its case. They say that Courts will becautious in implying such terms. See: G. Ford Homes Ltd. v. Draft Masonry (York) Co. Ltd., (ON CA), [1983] O.J.No. 3181 (C.A.). [36] Scotiabank points to its own Overtime Policy, which mandates that all overtime work be pre-approved and that hours berecorded.

It therefore says that the Judge’s findings on the alleged duty of good faith are incorrect also for the same reasons.

Thecontract is written in express terms and it says the Judge erred in implying terms, since there was no basis or evidence upon which hecould properly do this. [37] It further says that the Judge erred in finding a cause of action for misclassification based on the Code, when he had foundthat the Court did not have any jurisdiction to enforce the Code, and should have struck the misclassification claim and alleged duties ofcare as disclosing no cause of action. [38] Scotiabank also says there is reason to doubt the correctness of the decision because the Judge erred in holding that thePlaintiff’s claim in negligence disclosed a cause of action, since it is not a proper tort claim and it fails to satisfy the Anns/Kamloops testfor recognizing a novel duty of care.

This, it says, does not have to be a “clearly wrong” decision. There simply must be good reason todoubt its correctness. [39] The Plaintiff’s claim is a claim for unpaid wages, which is a liquidated debt owed pursuant to the Code or to contract saysScotiabank, and it is not a proper damages claim. Scotiabank, as an employer, is subject to the Code. It says the Judge erred in doing an“end-run” by implying that the Code provisions were part of the bank’s contract with its employees and that duty of good faith was thenowed to those employees. See: Bedirian v. Canada (Attorney General), [2007] F.C.J.

No. 812 (FCA). [40] Scotiabank says that the Judge erred when he implied terms in a contract, as it is not a proper common issue under s.5(1)(c). [41] The Judge further erred, says Scotiabank, in finding that the question of unjust enrichment could be a common issue. [42] Also in error, says Scotiabank, is the finding by the Judge that there is a reasonable likelihood that the conditions for anaggregate assessment could be satisfied. Here, it says, the Judge did not examine the decision in Fresco, where an aggregate assessmentin a similar case was rejected. See also: Markson v.

MBNA Canada Bank, 2007 ONCA 334 , [2007] O.J. No. 1684 (C.A.). [43] Scotiabank says that the Judge erred in finding that under s.5(1)(d), the class action would be the preferable procedure anderred under s.5(1)(

e) in not finding that the litigation plan put forward by the Plaintiff lacked detail. [44] Leave should be granted, says Scotiabank as Fulawka involves matters of importance. It is the first overtime class actioncertified in Canada in respect of an employer that is subject to the Code. It estimates that the number of employees affected across thecountry ranges from 5,000 to 13,000 depending on the parameters of the class. It also, says Scotiabank, has far-reaching implications

respecting the Judge’s findings respecting negligence and contract claims.

Scotiabank also sees it as collateral attack on the exclusivejurisdiction of administrative tribunals, given the implication it has by implying terms of the Code into a private contract. [45] The Plaintiff says it is premature to grant Leave in this case, and it would be improper for the Court to strike the Statement ofClaim at this point in time. [46] The Plaintiff says that the Judge’s decision is consistent with and premised “upon well-settled principles and case law andthere is no reason to doubt its correctness.” She says that the Judge identified and applied the relevant legal principles that have evolvedsince the CPA came into law. [47] In his decision, the Judge said that the Plaintiff’s claim disclosed valid causes of action for breach of contract, including thebreach of a contractual duty of good faith, as well as unjust enrichment and negligence.

In so doing, the Plaintiff says that the Judgeproperly relied in paras. 77-78 of his Decision, on the findings of the Court of Appeal in Transamerica Life Canada Inc. v. ING CanadaInc., (ON CA), [2003] O.J. No. 4656 (C.A.) where it said that the Courts have implied a duty of good faith with aview to securing the performance and enforcement of the contract made by the parties. [48] The Plaintiff also says that the Judge was correct in his application of the Anns/Cooper test on the facts as pleaded.

He heldthat the Plaintiff’s claim in negligence withstood the “plain and obvious” test as articulated by the Supreme Court of Canada in Hunt v.Carey Canada Inc., (SCC), [1990] S.C.J. No. 93 (S.C.C.). [49] The Plaintiff says that Scotiabank’s position regarding the Code and its application in this case is wrong, and that the Judgewas correct in implying terms into the bank’s written contract with its employees.

She says that the Judge did not err by holding that theCode can inform Scotiabank’s duties in contract and tort is based on and consistent with well-established legal principles. [50] The Plaintiff says that the express terms of the Scotiabank’s employment contracts are not definitively set and implying termsinto that contract is not an error. [51] The Plaintiff says that Scotiabank has attempted to “…miscast the claims of the Class as not more than a series of unrelatedindividual complaints about unpaid work”, whereas it should be looking at the systemic acts and omissions of Scotiabank as anemployer.

She says that it has systemically breached its duties to Class Members, putting all of them at risk of not being compensated. The Judge did say in paras. 121-122 that Ms. Fulawka and other members of the Class “…might be able to prove individual breaches ofcontractual or other duties.” [52] The Plaintiff alleges that the issues on this appeal are not of general public importance. She points to the fact that there is animbalance in the position of the parties, given that Scotiabank is one of Canada’s largest financial institutions.

She says, “Losing thiscase following a trial on the merits would not materially affect the Bank’s finances. On the other hand, losing this case would be aserious blow to the plaintiff and the class.” Analysis [53] Although the Plaintiff has said that I should not deliver a decision that Fulawka and Fresco are conflicting cases, and that Ishould wait until the full panel of the Divisional Court renders it decision, I disagree with that proposition. Each case moves through ourlegal system at its own pace. Appellate Courts can provide guidance where cases conflict.

On my analysis of the decision in Fulawka, Iconclude that it and Fresco are indeed conflicting decisions. On the first ground of the test in subrule 62.04(

a) the Motion by Scotiabankfor Leave to Appeal is granted. [54] I base this finding on the fact that the common issues in both of these proposed actions substantially overlap and are so similarthat Leave must be granted. One has only to examine the Chart prepared by Scotiabank, which is attached to its Factum, to see all of thesimilarities between the two cases.

There is very little difference in the claims other than the fact that they were studiously started six(6) months apart with the two (2) financial institutions being kept separate and apart in different actions. [55] The Plaintiff tries to say that there were many factual differences between the two (2) cases, however on a careful reading ofthe decisions these differences are hard to find. Both cases rely on the same experts’ evidence, which also did not change materiallybetween the cases.

Even the overtime policies of the two (2) institutions are not far apart in what contracted rights they have provided totheir employees. [56] There is a conflict of principle in the findings in each case, where the two

(2) Judges came to opposite conclusions based onthe arguments before them. The Judge in Fresco said that the lack of commonality in the proposed class action before her, cannot beovercome through allegations of systemic duties and a breach of implied contractual terms of duties of good faith. The Judge in Fulawkacame to exactly the opposite conclusion. [57] The issue of commonality in such actions is key to certification under the CPA.

This was recognized by the Judge in Fresco,where she found that that there must be an evidentiary basis to support such claims, noting that the case before her was not a case wheresystemic wrongdoing can be resolved without examining the individual claims. On the other hand, the Judge in Fulawka in para. 4 ofhis Decision concluded that there is an evidentiary basis in that case of systemic wrongs that give rise to common issues, the resolutionof which would advance the claim of every Class Member.

Since the expert evidence in the cases was almost verbatim the same, andsince the general claims of unpaid overtime were the same, and since both involved private contracts between employer and employee,the results in the cases make them conflicting for purposes of the test. [58] In my view, it is desirable that Leave be granted in this case. The role of the Code in such contractual matters is a matter of

general importance in labour law. Further, the issue of implying such terms of good faith and negligence into such contracts has anoverall impact in class actions such as this. This is the first overtime class action certified in Canada against an employer subject to theCode. These issues make it desirable that Leave be granted. [59] I have reviewed the decisions in Boulanger v. Johnson & Johnson Corp., [2007] O.J. No. 1991 (S.C.J.), Axiom Plastics Inc. v.E.I. DuPont Canada Co., (ON SCDC), [2008] O.J. No. 1973 (S.C.J.) and Griffin v.

Dell Canada Inc., [2009] O.J.No. 3438 (S.C.J.), all of which were Motions for Leave and in which Leave was denied. The Plaintiff urges me to follow thesedecisions. [60] In Boulanger, supra, Leave was not granted. There the Judge who certified the action, noted that the claim made by theproposed class was one in negligence involving persons who had ingested Prepulsid, a drug produced by the Respondents, which wasalleged to have contributed to a number of adverse cardiac effects in those persons. The Judge refused Leave under subrule 62.02(4)(a)of the test, finding that there was no conflicting decision.

She further found that it did not meet the second part of the test in subrule62.02(4)(

b) as there was no issue of general importance. In the case before me, I have found that there is a conflicting decision. [61] Axiom, supra, is a price-fixing case in the automobile parts industry regarding the prices of the engineering resins used in thatindustry. There the Judge found in paragraph 65 that the fact that a cause of action is certified for the first time does not encourage thegranting of Leave. She found that neither branch of the test applied to the circumstances before her. I, on the other hand, am of the viewthat both parts of the test have been met in Fulawka.

In it, there are more issues than it simply being a certified case which has comebefore the court for the first time involving a cause of action involving the Code. There are issues regarding errors in principle that mustbe examined. [62] The Code issues also involve the Judge implying terms into the contracts between the proposed class members andScotiabank. I see these issues as intertwined and having general importance in the larger area of administrative law and governingstatutes.

It brings into question whether the courts lack jurisdiction to hear claims which are within the exclusive jurisdiction of thespecialized tribunals set up to adjudicate such claims. [63] In Griffin, supra, the Judge denied Leave where a class action was certified. The action arose from the sale of certainallegedly defective notebook computers designed, manufactured and sold the Defendant. In that case, none of the issues were personalto the proposed class, other than each was a person who had purchased the same product at, presumably, a similar price.

The number ofsuch computers sold was fixed, as were the five types of models and all came with a one-year limited warranty. It was a defectiveproducts case. There the Leave Judge found that neither part of the test was met under rule 62.02(4). Further, even though there wereclearly conflicting decisions on the issue in a developing area of law, the Judge found it was not desirable to grant Leave. [64] Griffin, supra, is quite a different case from the one before me. Fulawka involves an alleged class of persons who each hadpersonal contracts with Scotiabank governed by the Code.

In Griffin, supra, the class was clearly defined, the damages for each allegedmember fixed and there were no issues of general importance to the public. In the case before me, the issue of commonality is one ofmixed fact and law. There are issues raised as to misclassification, systemic practice or policy, and the nature of the claims made by theproposed class such as a claim in negligence, a claim for breach of contract and a claim alleging unjust enrichment.

These issues aresuch in totality, that Leave should be granted, keeping in mind the issues raised in Fresco, even if it were found to not be a conflictingcase. [65] I have outlined in some detail, in these Reasons granting Leave, each party’s position on this Motion. The documentation andcase law presented to me by the parties was more than fulsome, given what is at stake in the case. The impact of the decision of theJudge is one that transcends the overtime issue raised against one bank.

It affects all businesses where companies have relied on itswritten policies where the Code applies and which have overtime policies. If the Judge erred in his findings on this issue, it would be anerror of law. [66] As Madam Justice Wilson said in paragraph 34 of Griffin, supra: The issue is not whether a different judge may have reached a different conclusion on the certification motion. The reviewing courtshould intervene only where the motions court Judge has made a palpable and overriding error of fact, or otherwise erred in principle.

In my view, there is good reason to doubt the correctness of the decision of the Judge and I have pointed out where I see that the mattersraised in this Motion for Leave are of such importance that Leave should be granted. [67] The Motion for Leave is granted on both grounds of rule 62.02(4). Costs of this Motion are left to the panel hearing theAppeal. ____________________________ Greer J.

Released: May 5, 2010 CITATION : Fulawka v. The Bank of Nova Scotia, 2010 ONSC 2645 Divisional Court File No.: 105/10 DATE: 20100505 ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT BETWEEN: CINDY FULAWKA, Plaintiff and Responding Party on the Motion – and – THE BANK OF NOVA SCOTIA, Defendant and Moving Party on the Motion REASONS Greer J. Released: May 5, 2010