To the Court of Appeal and Beyond: Enforcing Statutory Duties in Overtime Class Actions

In a series of recent high-profile cases, Ontario courts have been grappling with the issue of whether employees can use actions commenced under the Class Proceedings Act, 1992, SO 1992, c 6, to enforce overtime claims under the Canada Labour Code, RSC 1985, c L.2. The decision in McCracken v Canadian National Railway Company, 2010 ONSC 4520, holds that statutory employment obligations are implied terms in an employee's employment contract, and therefore may be the subject of claims asserted in a class action. This decision is in direct contrast to the earlier decision in Fulawka v Bank of Nova Scotia, 2010 ONSC 1148, and, as a result, the law on this issue remains in flux. Published in Volume 13, No. 1 of Work Matters, the newsletter of the Labour and Employment Law Section of the Ontario Bar Association.