Canada: What Counts As Work In The Blackberry Era? Navigating The Pitfalls Of Hours Of Work And Overtime Claims

Introduction

For many employees, the boundary between "working time" and "non-working" time has become increasingly fluid. Developments in cell phones, email, laptop computers, text messaging, and videoconferencing have provided employers and employees with opportunities and flexibility undreamt of even a few decades ago. Many employees are no longer tied to a single workplace or a set work day, for example 9 to 5 every day. Work takes place just about anywhere and anytime: in the car, in the early morning and the late evening, at the summer cottage, or on the airplane taking the employee to a business meeting. Work may require us to travel across the country, and even around the world. More and more, both employers and employees recognize the many advantages of the "virtual" workplace. Employers improve efficiency and reduce costs by being able to tailor work assignments to the needs of their businesses. Employees have greater flexibility to work from home and organize their work days to suit their personal and family needs.

While technology is rapidly re-shaping the workplace and the work day, employment standards legislation tends to lag behind. Each Canadian jurisdiction has employment standards laws which regulate hours of work and establish overtime thresholds and rates. The basic principles underlying these laws are generally straightforward. In most jurisdictions employers are permitted to establish a regular work day of no more than 8 hours and in some jurisdictions averaging agreements are permitted. In British Columbia, for instance, the Employment Standards Act establishes a basic limit of 8 hours in a day and 40 in a week, after which overtime must be paid. In Ontario, the Employment Standards Act, 2000 provides that no employer shall require or permit an employee to work more than 8 hours in a day and 48 hours in a week, with overtime pay required after 44 hours. In Alberta, the Employment Standards Code sets the limit at 8 hours in a day and 44 hours per week, after which overtime must be paid.

Hours of work laws may appear straightforward, but applying these laws is increasingly complicated in our changing economy, where working time and non-working time are harder and harder to track. The following are just a few of the questions facing employers today:

• Does checking work emails on the weekend or during a vacation count as "work"?
• Does travel time count as "work" for which an employee is entitled to be paid?
• Does work start when an employee arrives at work, or when the employee is ready to work (ie. after the employee's computer is booted up, or the employee has donned required clothing and equipment)?
• If an employee is expected to be available to take calls on weekends, does the whole weekend count as "work" time?
• If an employer makes "optional" training available to employees after their regular hours of work, does the training time count as "work"?

We will address these and other questions as we consider the issue of when an employee is considered to be working and entitled to be paid for that work. We will also outline the potential consequences employers face if employees are not paid for work the employees perform outside their "normal" working hours. These potential consequences include individual and class action claims for unpaid wages and overtime pay. Finally, we will address ways in which employers can avoid or reduce the risks that arise when "work" moves beyond the boundaries of the office and the conventional work day.

When Does Work "Count" as Work from Employment?

It is important to address a threshold issue. Simply put, not all "work" is necessarily performed by employees. A corporation may seek to obtain the services of workers in a capacity other than as employees for many reasons. For example:

• the corporation may need to replace its regular employees who are on leave (e.g. vacation, maternity, sick leave);
• the corporation may need to supplement its regular workforce (e.g. in order to meet the demands of a new product schedule, or the needs of a seasonal or cyclical production schedule); or
• the corporation may require the services of a worker with specialized skills which are not found within the corporation's regular workforce.

Frequently, the work relationship between the corporation and the worker will be structured so that the worker supplies services to the corporation in the capacity of an independent contractor. In fact, workers are increasingly setting up their own businesses and contracting out their services. One of the reasons for this is that many of the statutes which govern the employment relationship, such as employment standards legislation, workers compensation legislation, the Canada Pension Plan, and the Employment Insurance Act, may not apply to a corporation in relation to the work provided by an independent contractor. For instance, the corporation is not required to ensure that an independent contractor does not work for more than 8 hours in a day when the independent contractor provides services to the corporation.

While the corporation and the worker may agree that the worker is an independent contractor, the Ministries, boards, and tribunals which administer the statutes governing the employment relationship may disagree and determine that the relationship is in fact one of employer and employee. Similarly, even if a worker initially agrees or even asks to be treated as an independent contractor, that worker may later decides that he wants to obtain certain benefits or privileges provided by an employment statute, such as employment insurance, overtime pay, or reasonable notice of termination. The worker may then assert that the work relationship was, in fact, one of employment, and that the work performed was actually work by an employee.

The tests used by the courts and various administrative tribunals to determine whether or not a particular worker is an employee, or an independent contractor, have evolved over time and, no doubt, will continue to do so. Initially, the courts focussed on the degree of control exercised by the "master" over the manner in which the "servant" performed the work. The "control" test was ultimately incorporated into the classic "four fold" or "four-in-one" test as set out by Lord Wright in the English case of Montreal v. Montreal Locomotive Works Limited.¹ The "four-in-one" test requires that the Court or tribunal consider:

Lord Wright went on in Montreal Locomotive to define the "crucial question" to be answered in distinguishing between an independent contractor and an employee as follows:

According to Lord Wright, in order to answer this question, the Court or tribunal must examine the "whole of the various elements which constitute the relationship" within the context of the "combined force of the whole scheme of operations".

The "four-in-one" test continues to form the basis for modern-day determination of this issue.² In addition, Lord Wright's inquiry into the "ownership" of the business was one step in the evolution of what is now known as the "integration" or "business organization" test. This test was first articulated by Lord Denning in the English case of Stephenson, Jordan and Harrison Ltd. v. MacDonald and Evans³:

Generally, the tests which have been developed and are utilized by decision makers with respect to different statutes that distinguish between independent contractors and employees are quite similar. There may, however, be some variation among the different statutes and jurisprudence that has developed. Therefore, it is important to recognize that just because a particular worker is determined not to be an employee for the purposes of one piece of legislation does not mean that the worker may not be an employee for the purposes of a different piece of legislation or area of law.

Nevertheless, in all cases, the substance and not the form of the relationship will likely be determinative of the issue. In general then, a Court or tribunal must determine the status of a worker on a case by case basis, examining all of the facts before it within the context of the overall nature of the relationship between the worker performing the services and the corporation for whom the services are performed.⁴ Space does not permit us to give full consideration here to the case law relating to the "independent contractor vs. employee" issue. However, a corporation that retains independent contractors to perform services should take care to ensure that the workers providing such services are indeed "independent contractors" at law. Otherwise, work performed by the workers may well be "work from employment", and the corporation may face significant liability for wages, benefits, overtime pay, workers compensation premiums, employer health taxes, and other taxes that should have been deducted from payments to the workers, or for which the employer should have made contributions, such as Employment Insurance premiums and Canada Pension Plan premiums.

Exemptions from Statutory Hours of Work Limits and Overtime Entitlements

There is a common misconception that "salaried" employees—those who are paid on the basis of an annual or monthly salary rather than an hourly wage—or employees who are paid on a full or partial commission basis, are not entitled to overtime pay. While it is true that certain kinds of employees are exempt from the hours of work and overtime provisions in the employment standards legislation of each Canadian jurisdiction, these exemptions tend to be narrow and specific.

In British Columbia, for instance, the Employment Standards Act does not apply to employees who are practicing members of certain professions, such as architects, lawyers, and accountants. In addition, certain kinds of employees are excluded from the hours or work provisions in the B.C. Employment Standards Regulation, including managers, teachers, police officers, firefighters, nursing students, residential care workers, travelling salespeople, high technology professionals, and certain other categories. Similar exemptions are found in the regulations made under the Ontario Employment Standards Act, 2000 and the Alberta Employment Standards Regulation.

For many employers, the most relevant exemption is the one that applies to supervisors and managers. This exemption, however, must be applied with caution. Many employers assume that because an employee's title contains the term "Manager", that the exemption will apply. This is not the case. For instance, in Nygard International Partnerships v. Michalowski,⁵ a Manitoba case, Ms. Michalowski was employed by Nygard as a Regional Merchandising Supervisor. After she left her position at Nygard, she was awarded overtime wages on the basis that, as an employee with no powers to hire, fire, set wages for or otherwise control other employees, she was entitled to overtime pay. In addition, the Manitoba Court of Appeal found that Michalowski was entitled to overtime pay even though the employment contract she signed stated that her $42,000 annual salary was "inclusive of all hours to be worked". The Supreme Court of Canada refused leave to appeal^.6

In British Columbia, the Employment Standards Regulation defines a "manager" as a person whose principal employment responsibilities consist of supervising or directing, or both supervising and directing, human or other resources, or a person employed in an executive capacity. In Ontario, in order to be exempt from hours of work limits and overtime entitlements as a "manager", an employee must supervise other employees, exercise control over how and when other employees do their work, and have the authority to hire, fire and transfer employees as well as discipline employee transgressions.⁷ As well, any non-managerial duties the "manager" exercises must be irregular and exceptional in nature.⁸

How Does An Employer Calculate An Employee's " Regular Rate of Pay"?

If an employee does not fit within the narrow and specific exemptions set out in the applicable employment standards legislation, the employee will be subject to hours of work limits, and will be eligible for overtime pay. Many employers, however do not track or record the hours worked by "salaried" or "commissioneligible" employees, leaving the employers vulnerable to overtime pay claims from such employees, in addition to penalties under the Employment Standards Act for failure to maintain records of hours worked. In addition, it can be difficult to determine the appropriate overtime "rate" for employees who are not usually paid on an hourly basis.

Example 1:

In B.C., the Employment Standards Act defines "regular wage" for employees on an annual salary as the employee's salary divided by 52 weeks times the number of hours normally worked by the employee each week. If the employee is paid by commission, the employee's "regular wage" is the employee's wages during the pay period, divided by the number of hours worked in that pay period.

If an employee is paid entirely by commission, the Employment Standards Regulation excludes them from overtime pay if the amount earned is greater than the overtime pay that would be owed to a person at minimum wage. If an employee is paid by both commission and salary, the Regulation excludes them from overtime pay if the amount earned is greater than the overtime pay that would be owed to a person at their salary.

For example, what overtime pay is owed to B.C. employee, Jane, if Jane earns an annual base salary of $52,000 works a regular work week of 40 hours, and in one week actually works 48 hours? On an annual salary of $52,000 per year, and a normal work week of 40 hours, Jane's "regular wage" would be $25 per hour and her overtime rate would be $37.50. For 8 hours of overtime, Jane would be owed $300. If Jane were earning commission as well as a salary, Jane would not be owed any overtime pay if the amount of commission she earned in a week was greater than $300.

Example 2:

In Ontario, the Employment Standards Act, 2000 defines "regular rate" for an employee who is not paid by the hour as "the amount earned in a given work week divided by the number of non-overtime hours actually worked in that week." Jane's weekly salary is $1,000 ($52,000 per year divided by 52 weeks). Therefore, Jane's "regular rate" is $1,000 divided by 40 weeks, or $25 per hour, and her overtime hourly rate is $37.50. If Jane works 48 hours one week, and is entitled to overtime pay after 44 hours of work, her pay for the week total $1,250, as follows:

• $1,000 for the first 40 hours of work;
• $100 for the first 4 hours of overtime; and
• $150 overtime pay for the second four hours of overtime.

If Jane is entitled to overtime pay after 40 hours a week, her pay for the week should total $1,300, as follows:

• $1,000 for the first 40 hours of work; and

Example 3:

What if, in addition to her annual base salary of $52,000, Jane is entitled to commission pay? For instance, what if Jane is entitled to overtime pay after 40 hours, works 48 hours in one week and earns an additional $1,000 in commissions during that week? What is Jane's "regular rate of pay"? The "regular rate" of pay of an employee in Ontario is the "amount earned in a given work week divided by the number of non-overtime hours actually worked in that week". Therefore, Jane's "regular rate" for the week is $50 ($2000 divided by 40 hours), and Jane is entitled to be paid $2,600 for the week, as follows:

• $1,000 for the first 40 hours of work;
• $1,000 in commissions; and
• $600 for the 8 hours of overtime.

In other words, for Ontario "salaried" employees whose earnings fluctuate from week to week due to commissions or other forms of incentive pay, their regular rate of pay will also fluctuate, as will their overtime rate of pay.

Similar to B.C., in Alberta, the Alberta Employment Standards Code states that if an employee is paid partly by salary and partly by commission or other incentive-based remuneration, then, for the purpose of calculating overtime pay, the employee's wage is either based on the salary component of the wages, if the salary component is greater than the minimum wage, or is deemed to be the minimum wage, if the salary component of the employee's wages is equal to or less than the minimum wage. Thus, in Alberta, Jane's regular rate of pay would be $25 per hour, and her overtime rate would be $37.50, based on her annual base salary of $52,000. This overtime rate would remain the same even if Jane earned commissions in addition to her base salary. Therefore, if Alberta Jane worked 48 hours in a week, and was entitled to overtime after 40 hours, she would be entitled to be paid $1,300 for the week, as follows:

• $1,000 for the first 40 hours of work; and
• $300 for the 8 hours of overtime.

The laws governing overtime in the various Canadian jurisdictions are varied, can be technical and sometimes conflict. This can lead to mistakes in compensation, particularly for employers operating in multiple jurisdictions. Employers must consult the employment standards legislation applicable in their jurisdiction to ensure that they are providing overtime pay to all eligible employees and that they are calculating and paying overtime entitlements properly.

Regular Hours of Work and Overtime Thresholds

The chart below provides a basic summary of the hours of work limits and overtime thresholds and pay rates for each of the jurisdictions in Canada:

In addition to regulating an employee's regular hours of work and overtime thresholds, employment standards legislation frequently sets a limit on the maximum number of hours an employee can be required or permitted to work, whether or not the employee must be paid overtime. In British Columbia, for instance, an employer may not require or directly or indirectly allow an employee to work excessive hours or hours detrimental to the employee's health or safety. In Ontario, an employer may not require or permit an employee to work more than 48 hours in a week, unless the employee agrees and the employer obtains an approval from the Director of Labour Standards to allow some or all of its employees to work more than 48 hours in a week. Even with an "excess hours" approval from the Director, an Ontario employer generally cannot require or permit an employee to work more than 60 hours in a week.

Employment standards legislation also often requires an employer to give an employee a set period of time free from work each day. In British Columbia, the Employment Standards Act requires that there must be 8 consecutive hours free from work for each shift worked. As well, the employer must either ensure that the employee has at least 32 consecutive hours free from work each week, or pay an employee 1.5 times the employee's regular wage for time worked during the 32-hour period when the employee would otherwise have been entitled to have time free from work. In Alberta, the Employment Standards Code provides that working hours must be confined within a period of 12 consecutive hours in any one work day, except in specific special circumstances or unless the Director of Labour Standards issues a permit authorizing extended hours of work.

Employment standards legislation may also require and regulate break times during the employee's work day. In British Columbia, for instance, an employee may not work for more than 5 consecutive hours without an unpaid meal break of at least 30 minutes.

What Counts as Employment "Work" for Purposes of Calculating Hours of Work and Overtime?

As we have noted above, employment standards laws in each of the Canadian jurisdictions limit the hours an employer may permit or require an employee to work. Employment standards laws also establish overtime thresholds and rates. These apparently straightforward laws, however, create some difficult questions in the modern employment world. For instance, when does the work day begin? What if the employee reads work reports on the Canada Line on the way to work? For an employee who has to wear a uniform or protective equipment, does the work day begin when the employee begins to "suit up", or only after the employee is at the work station ready to work? And when does the work day end? If an employee goes home after work and checks work emails on a laptop, does the time spent on-line count towards the employee's allowable daily hours of work? When does "off-the-clock" work count as hours worked?

1. Employment Standards Legislation

Employment standards legislation provides some guidance for determining what counts as "work". For instance, regulations made under the Ontario Employment Standards Act, 2000 state that work is deemed to be performed in the following circumstances:

The definition of "work" in the British Columbia Employment Standards Act is less detailed. The Act provides that "work" means labour or services an employee performs for an employer whether in theemployee's residence or elsewhere. An employee is also deemed to be at work while on call at a locationdesignated by the employer, unless the designated location is the employee's residence.¹⁰ Because eachCanadian jurisdiction has its own employment standards legislation, employers should ensure that theyare aware of and in compliance with the legislation applicable to their employees.

In some cases, employment standards laws do not expressly address the question of when employees are deemed to be working. For instance, the Alberta Employment Standards Code does not provide adefinition of "work" or "employment" beyond stating that "work" includes providing a service. Ultimately,whether an employee is considered to be working and thus entitled to be paid wages will depend on anumber of factors, including the type of work the employee is doing, the amount of time required to do thework, and whether the work was required or permitted by the employer. In the next sections of this paper, we discuss a recent, informative case from the United States where some of these questions wereaddressed. We then turn to a discussion of how various hours of work and overtime issues have beendealt with under Canadian law.

2. Rutti v. Lojack Corporation, Inc.: Some Good News (and Some Bad News) for U.S. Employers

Employers in the United States are facing increasing numbers of class action suits from employees who allege that they are entitled to compensation for work completed outside standard work hours. More recently, there have been a number of claims for payment for time which employees spent working outside of their standard work hours, including checking e-mail and placing or answering telephone calls. In August of 2009, the United States Court of Appeal for the 9th Circuit considered some of these issues in its decision of Rutti v. Lojack Corporation, 1nc. ("Rutti").

Rutti was a class action law suit brought in California on behalf of a proposed representative plaintiff, Mike Rutti, against his employer, Lojack Inc. on behalf of all of Lojack's technician employees. Rutti was seeking payment for work which Rutti claimed Lojack's technicians were required to complete "off-theclock". The technicians installed and repaired vehicle recovery systems in customers' vehicles. Rather than requiring customers to come to a Lojack facility to have the work done, Lojack dispatched its technicians to its customers. In order to complete work assignments, the technicians drove to their respective job sites in vehicles owned by Lojack. Most of the technicians drove directly from their own homes to the customer's location.

Lojack paid its technicians on an hourly basis, beginning from the time the technician arrived at the first customer's location, and ending at the time the technician completed work at the final customer's location. Lojack did not count the time spent by the technician driving to the first job site of the day, or driving home from the last job-site of the day, as time worked for purposes of calculating pay or hours of work. Rutti claimed that he was not allowed to attend to any personal business while driving the company's vehicle, even during the unpaid time when he was driving to his first customer's location.. Rutti also claimed that Lojack required technicians to be "on call" and available by telephone from 8:00 AM to 6:00 PM every day from Monday to Friday, and from 8:00 AM to 5:00 PM on Saturdays. Rutti sought full compensation for these hours of work on behalf of all the Lojack techs.

Rutti also sought compensation for other "off-the-clock" work which he claimed Lojack required its technicians to do. Rutti claimed that prior to leaving home to travel to his first customer's location, he was required to use his company-provided laptop computer to receive daily work assignments. He was then required to map routes to the work assignments and plan the most efficient order in which to complete those daily assignments. In addition, after returning home from his final work assignment of the day, Rutti asserted that he was required to use his laptop computer to upload reports about the work he had completed into Lojack's central computer system. He also asserted that he was required to fill out paperwork about the work he had completed that day.

In the United States, both federal and California laws require that employees be compensated for all hours worked. Under the federal Fair Labour Standards Act¹¹, however, employers are not required to pay their employees for

Rutti argued that the restrictions Lojack placed on its employees while operating the company vehicles, including prohibiting the employees from using the vehicle for personal use, requiring that the employees drive directly from home to the job site, and requiring that the employees have their cell phones on, made the time spent travelling a "principal activity of employment". The majority of the 9th Circuit Court of Appeal, ruled that the time the technicians spent driving from their residences to job sites was incidental to their employment, and was more like a commute to a mandatory departure point than restricted time in an employer-controlled vehicle. The majority of the Court held that the restrictions Lojack placed on its technicians while operating their company vehicles were minimal and did not render the travel a principal activity of their employment. As a result, this time was not compensable.

The Court also considered whether the other "off-the-clock" tasks required of the technicians formed part of the principal activities the technicians were hired to perform, or whether the tasks were merely de minimis and thereby incidental. The Court construed "principal activities" to include any work of consequence performed for an employer, no matter where the work is performed. In determining whether the tasks required of the technicians were merely incidental, the Court relied on the U.S. Supreme Court's definition in the 1946 case of Anderson v. Mt. Clemens Pottery:

The majority of the Court ultimately found that the activities the Lojack technicians were required to complete before travelling to their assigned job sites did not constitute a "principal activity" of the employee, nor did these tasks require substantial time and effort on the part of the employees. The majority of the Court, however, reached the opposite conclusion with respect to the requirement that a technician transmit data to the company computer system following the completion of his or her final work assignment each day. This activity was found to be an integral and indispensable part of the technician's job and was therefore considered a "principal activity". The majority of the Court based its conclusion on the fact that uploading the required data could take as long as fifteen minutes per day. The Court felt that for many employees, this represented a significant amount of time and money. Also, the evidence indicated that Lojack required that the transmissions had to be made at the end of every work day. In the Court's view this made the transmissions appear to be a requirement of a technician's employment. The Court remanded the case for resolution of the data transmission case. A confidential settlement was reached on the eve of a hearing of Lojack's motion to decertify the class action.¹⁴

The Rutti decision provides insight into how the American courts are dealing with hours of work claims which deal with "off-the-clock" work. The good news for U.S. employers coming out of the Rutti decision is that employers appear not to be liable for compensating employees for travel time to the employee's first work assignment if the employer can show that such travel is analogous to commuting, and thus not part of an employee's principal activity in the job. Also, if an employer can characterize activities like checking emails or making and returning occasional phone calls as "incidental" and not requiring "a substantial measure of time and effort", then the employer will not be liable to compensate employees for such activities, or count the time spent on such activities towards the employee's hours of work limits. Where an employee can show, however, that "off-the-clock" activities form a required component of the employee's job duties, and if such activities take a significant amount of time, the work will be considered compensable and will count as "work" for hours of work and overtime purposes.

3. The Canadian Hours of Work and Overtime Landscape

(a) When Does Work Start and End?

It is generally well-established law in Canadian jurisdictions that the time it takes an employee to travel to work is not "work" time, and is not included in the employee's hours of work. The Alberta provincial government, for instance, publishes an "Employment Standards Fact Sheet" on its Employment and Immigration website, which indicates that if an employee is required to leave home and report to the work site, the minimum wage compensation to which the employee is entitled applies once the employee "reports to work".

Similarly, the British Columbia Ministry of Labour website provides a "policy interpretation" of the definition of "work" in the British Columbia Employment Standards Act. The policy interpretation states that "Generally, employees are not entitled to wages for commuting to and from work." However, the policy interpretation goes on to note that there are exceptions to this general rule:

In Cambridge Exteriors Ltd.,16 the British Columbia Employment Standards Tribunal addressed the issue of whether travel time constituted "work" under the British Columbia Employment Standard Act. In this case, the employee, Witt, was employed by a general contractor that was undertaking rectification work on a leaky condo. Tar paper rolls were used in the rectification project. In order to facilitate work on the site, the rolls were trimmed into shorter lengths and re-rolled. Witt recommended a friend of his to do the trimming and re-rolling work on the tar paper rolls. Witt's friend was unable to complete the work during the regular work day, so at the end of each day, Witt transported a few rolls from the work site to his friend's home, then picked up the trimmed rolls in the morning to take them back to the work site. The question before the Tribunal was whether the time Witt spent transporting the tar paper rolls between the work site and his friend's home constituted compensable work. Ultimately, the Tribunal found it did not. The Tribunal noted that at no time during the transportation of the rolls was Witt under the employer's direction and control. In fact, the benefit of the arrangement flowed neither to the employer, nor to Witt, but rather to the friend who otherwise would not be able to perform the services.

For British Columbia employers, it is noteworthy that the Employment Standards Branch of the British Columbia Ministry of Labour considers the time spent by a driver of a vehicle on a ferry vessel to be work, if the ferry trip is normally less than two hours duration, namely all trips between the Lower Mainland and Vancouver Island or the Sunshine Coast.

(b) Preliminary and Postliminary Activities

In some workplaces and types of jobs, employees must perform certain tasks or activities before and after they engage in their primary duties. For instance, before a call-centre worker can begin to take calls at the required "live" time of 8:00 AM, he may have to boot up his computer, a procedure which in his workplace takes 5 minutes. A chemical worker may need to spend 10 minutes putting on protective equipment before she is ready to perform quality control tests, and an additional 15 minutes at the end of her shift to remove the protective equipment and shower to remove chemical residue. Do these activities count as compensable "work"?

Where the preliminary and postliminary tasks are integral and indispensable to an employee's primary job duties, it is likely that the time required to perform the preliminary and postliminary tasks will be considered compensable "work".

Similarly, where an employer requires an employee to attend at work 15 minutes before the paid shift begins to ensure that the employee is ready to begin work at the very start of his shift, it is likely that these 15 minutes would be considered compensable "work". In British Columbia, for instance, these 15 minutes would arguably be deemed to be work pursuant to section 1 of the Employment Standards Act which states an employee is deemed to be at work while on call at a location designated by the employer unless the designated location is the employee's residence.¹⁷

(c) Unauthorized "Off-the-Clock" Work

In today's work world, it is not uncommon for employees to engage in work activities outside their regular hours of work and without their employer's express authorization. In some cases, this happens because the employee believes that she cannot meet the employer's deadlines and performance expectations during regular work hours. In other cases, the employee simply chooses to perform extra work outside of his regular hours without getting permission from his employer. The question can then arise as to whether the employee is entitled to be paid for such unauthorized work.

In Ontario, the Regulations made under the Employment Standards Act, 2000 make it clear that compensable work is deemed to be performed where work is "permitted or suffered" to be done by the employer. In other words, if an employee engages in work—whether or not the employer expressly authorizes such work—the employee is entitled to be paid for such work. The Ontario Regulations go on to provide that even where the employee has signed an employment contract that limits the number of hours an employee is permitted to work, if the employee works more than the permitted hours of work, the employee is entitled to be paid for such work. The Regulations state that compensable work is deemed to be performed "where work is performed by an employee even though a term of the employee's employment expressly forbids, limits or requires advance authorization, of the number of hours an employee is entitled to work".

Although other jurisdictions may not include an express statement of this principle in their employment standards legislation, the case law indicates that this principle is generally applicable across Canada. In Magee (c.o.b. Delta Enterprises),¹⁸ the British Columbia Employment Standards Tribunal considered the question of what constitutes "work". There, the employee, Angela Booth, claimed she was owed wages for work performed at her home, outside her standard work hours. Detailed records provided by Booth convinced the Tribunal she had, in fact, completed substantial work for Magee from home. Magee testified that on several occasions he had told Booth that she was not required to work at home outside her standard hours of work. Despite this, the Tribunal found the work performed at home to be compensable. The Tribunal noted that Magee was aware the employee was working from home, and that there was no evidence that Magee took any action with respect to Booth continuing to work from home after he told her that it was not required.

(d) "Off-the-Clock" Meetings

The exigencies of busy work days have led certain employers to schedule some work-related meetings for times outside the employee's normal work day. On occasion, the only convenient time for such a meeting is before or after regular work hours, when a majority of the employees invited to the meeting are actually free to attend. Although, an employer may advise employees that the meeting is "not mandatory", an employee may still feel obligated to attend the meeting or risk negative consequences, such as missing out on valuable employment-related information or being identified as not fully committed to the job.

In general, under Canadian employment standards legislation, employees are considered to be "at work" while attending meetings conducted or arranged by their employer at which the employees are provided with information or instructions that serve a business purpose. The fact that attendance is not mandatory does not usually mean that those employees who do attend are not "working" during the meeting. It is likely that an employment standards enforcement officer would reach the same conclusion even if an employee did not attend the meeting physically, but rather "called in" by telephone.

(e) "Off-the-Clock" Training Sessions

Training sessions are sometimes scheduled outside of regular working hours. The question can then arise as to whether the time spent in training counts as compensable "work".

In general, the time during which employees receive or engage in training during the regular work day is considered to be compensable work. In Ontario, the Employment Standards Act, 2000 expressly provides that an individual who receives training from a person who is an employer is an employee of that employer unless all of the following conditions are met:

• The training is similar to that which is given in a vocational school.
• The training is for the benefit of the individual being trained.
• The person providing the training derives little, if any, benefit from the activity of the individual while he or she is being trained.
• The individual does not displace employees of the person providing the training.
• The individual is not accorded a right to become an employee of the person providing the training.
• The individual is advised that he or she will receive no remuneration for the time that he or she spends in training.¹⁹

If all of these conditions are not met, the individual receiving training is deemed to be an employee of the employer, and is generally entitled to be paid for the time spent in training.

Even where employment standards legislation does not expressly address the issue of whether training counts as compensable "work", employers are generally liable to pay wages for mandatory training sessions whenever they occur. The Employment Standards Branch of the British Columbia Ministry of Labour takes the position that if the training is for the purpose of the employer's business, then it counts as "work". Who provides the training and the utility of that training determines whether the training is for the purpose of the employer's business. On the other hand, where the purpose of the training is to obtain or maintain a permit, licence, certificate, or ticket which affords the holder to seek employment with any number of employers, the training is not considered to be "work".

A question remains as to whether an "optional" training session counts as compensable "work". In all likelihood, if the employer benefits from the optional training the employee receives, and the training is for the purpose of the employer's business, the fact that it is optional will not shelter the training from counting as compensable "work".

4. Liability on a Large Scale

In the United States, successful multi-million dollar class action lawsuits claiming unpaid overtime have become commonplace. Large employers like Coca-Cola, Starbucks, and Pacific Bell, have been ordered to pay or have settled class action overtime lawsuits in amounts totalling hundreds of millions of dollars. In 2007, the Canadian employment landscape significantly changed with the filing of two national class action lawsuits relating to unpaid overtime. In 2008, two more overtime-related class action lawsuits were filed, and additional suits were filed in each of 2009, 2010, and 2011. These national class action lawsuits claiming hundreds of millions of dollars have generated considerable media attention and coverage alerting employees across the country to their overtime rights under employment standards legislation.

It is clear that many more employers are likely to face significant potential liability with respect to earned but unpaid overtime. Many individual employees, however, may lack the financial resources or legal expertise required to litigate such claims. A suit originated by way of class action enables litigation costs to be divided among a large number of plaintiffs.

In 2000, the Supreme Court of Canada recognized the importance of class action lawsuits as a means of providing access to justice, creating judicial economy, and acting as a deterrence mechanism in the decision of Western Canadian Shopping Centres Inc. v. Dutton ("Western").²⁰ In Western¸ the Court noted that class actions offer three important advantages over a multiplicity of individual suits:

• First, by aggregating similar individual actions, class actions serve judicial economy by avoiding unnecessary duplication in fact-finding and legal analysis.
• Second, by allowing fixed litigation costs to be divided over a large number of plaintiffs, class actions improve access to justice by making economical the prosecution of claims that would otherwise be too costly to prosecute individually. Without class actions, the doors of justice would remain closed to some plaintiffs, however strong their legal claims.
• Third, class actions serve efficiency and justice by ensuring that actual and potential wrongdoers do not ignore their obligations to the public. Without class actions, those who cause widespread but individually minimal harm might not take into account the full costs of their conduct, because for any one plaintiff the expense of bringing suit would far exceed the likely recovery. Costsharing decreases the expense of pursing legal recourse and accordingly deters potential defendants who might otherwise assume that minor wrongs would not result in litigation. ²¹

In the United States, class actions relating to hours of work and overtime issues have become very attractive to employees as a low-cost way of obtaining payment for unpaid hours of work and overtime. The class action option has also become very attractive to lawyers who represent employees, since the damage awards can be very significant, depending on the size of the class. Class actions pose the risk of very significant and costly liability for employers.

It should come of no surprise, therefore, that a number of class action lawsuits have been initiated in Canada in recent years by employees seeking payment of overtime pay for hours the employees claim they worked but for which they were not paid by their employers. These class action lawsuits highlight some of the major problems employers can encounter regarding their obligations relating to overtime.

(a) Corless v. KPMG LLP²²

This matter involved a class action filed by Alison Corless against her employer, KPMG LLP ("KPMG"), on behalf of all employees of KPMG who were regularly required to work hours in excess of the applicable overtime thresholds without receiving compensation. Corless claimed $20 million in general damages and $10 million in punitive damages. In her claim, Corless alleged that KPMG's internal, unwritten policy required employees to work overtime, but prohibited employees from recording any hours that could not subsequently be charged directly to specific clients. In addition, Corless alleged that when she requested payment for overtime she had worked, KPMG refused on the basis that that her salary included overtime.

In February of 2008, KPMG proposed to settle Corless' claim by implementing an "overtime redress plan" which would provide compensation for overtime pay claims dating back to January 1, 2000. The potential overtime compensation of each employee was to be evaluated based on a number of criteria, including an individual employee's eligibility, the number of hours worked per week, and whether or not the individual employee had already been compensated for the overtime worked with time off in lieu of overtime. The settlement was subsequently approved by the Ontario Superior Court of Justice in August of 2008. Despite the redress plan, KPMG maintains that it has not admitted liability and has reserved the right to respond to and defend any motions pertaining to the class action suit.

(b) Fresco v. Canadian Imperial Bank of Commerce,²³ Fulawka v. Bank of Nova Scotia,²⁴ and McCracken v. Canadian National Railway Co.²⁵

The Ontario Court of Appeal recently considered a trilogy of cases involving class actions for unpaid overtime of federally regulated employees.

(i) Fresco v. Canadian Imperial Bank of Commerce

In June of 2007, a $600 million dollar class action law suit was filed by Dara Fresco against her employer, the Canadian Imperial Bank of Commerce ("CIBC") on behalf of all non-management and non-union employees of CIBC for unpaid overtime. The employees claimed entitlement to overtime pay as they were often required to work outside of their contracted daily hours and were pressured not to record their excess hours or to request overtime pay. In response, CIBC relied on its overtime policy which stated that overtime hours were to be approved prior to completion or the employee would not be entitled to receive overtime pay unless there were extenuating circumstances.

The Ontario Superior Court of Justice refused to certify the action. The Superior Court found the claims of the proposed class members were largely individual and did not raise common issues. This was the central flaw in Fresco's class action case. If the class had been certified, a court would ultimately have had to examine the specific evidence and allegations associated with each individual class member's claim.

The Superior Court also found that CIBC's overtime policy was neither illegal nor did it systematically deprive certain employees of overtime. Fresco had alleged that the overtime policy, by requiring approval of any overtime before it was worked, was a violation of the Canada Labour Code. The Superior Court disagreed. The Court held that federally-regulated employers are free to operate and conduct their businesses as they see fit, so long as they comply with relevant laws and regulations. The Superior Court found the requirement that overtime be pre-approved was lawful and did not contravene the Canada Labour Code.

The Ontario Court of Appeal rejected the Superior Court's reasoning. The Court of Appeal found that the terms and conditions in CIBC's overtime polices, and the accompanying standard forms that class members submit when requesting compensation, apply to all class members regardless of their own particular job responsibilities or job titles. Any alleged differences in the application of those policies would not undercut the "systemic wrongdoing" of failing to compensate for overtime.

The Court of Appeal further held that it was not "plain and obvious" that CIBC's overtime policy was lawful. The Canada Labour Code obligates an employer to pay overtime when an employee is "required or permitted" to work in the excess of their standard hours of work. The Court of Appeal considered that it was possible for a trial court to find that CIBC's overtime policy creates a narrower obligation to pay overtime than the Code requires. Potential grounds also existed to challenge the policy's legality, given allegations that CIBC consistently requires employees to work additional hours to complete their duties and are often uncompensated due to lack of management pre-approval, or because they have been instructed by management not to record overtime hours. The Court of Appeal noted that, although the policy permitted approval for overtime hours after-the-fact in extenuating circumstances, this may still create an institutional impediment to claims for overtime that are otherwise not compensable. After-the-fact approval, and only for "extenuating circumstances", is arguably inconsistent with the practical demands of the workplace and the Canada Labour Code.

The Court of Appeal certified the class action. It is now open to a trial court to decide whether policies that comply with the minimum requirements of the applicable employment standards legislation are lawful in the circumstances of the workplace.

(ii) Fulawka v. The Bank of Nova Scotia

In December 2008, Ms. Cindy Fulawka filed a class action lawsuit against her employer, the Bank of Nova Scotia ("Scotiabank"), for failing to pay overtime in accordance with the Canada Labour Code. Fulawka was employed as a customer service worker with Scotiabank for 21 years. She claimed that customer service employees of Scotiabank, who were not in a management position, were required to meet minimum sales goals and performance targets that required them to work overtime. Fulawka alleged that Scotiabank's overtime policy strictly discouraged employees from requesting overtime pay, that Scotiabank often refused to pay overtime because advance authorization to work extra hours was required, and that Scotiabank refused to authorize overtime even when it was necessary for employees to fulfill their duties and meet their sales goals. Fulawka further alleged that this overtime policy was an unlawful barrier to overtime claims and that Scotiabank breached its duty of good faith towards its employees. Fulawka sought $250 million in general damages and $100 million in punitive damages.

The motions judge certified Fulawka as a class action, holding that it was not plain and obvious that a claim against Scotiabank for breach of contract, unjust enrichment, breach of its duty of good faith, negligence, or contravention of the Canada Labour Code would fail. A factual basis existed for the common issues asserted by the plaintiff that:

• Scotiabank did not have an adequate system for recording time,
• Scotiabank's policy expressly forbids overtime,
• there was no opportunity to seek pre-approval for overtime work,
• employees could not record hours that were not pre-approved, and
• there was no system for tracking overtime worked.

The decision of the motions judge was unanimously upheld by the Divisional Court.

The Court of Appeal upheld the certification, and decided that the issues for certification in Fresco and Fulawka were not distinguishable. The overtime policies of both companies required employees to obtain prior approval from a manager in order to be compensated for overtime work that they were required or permitted to perform. The plaintiffs in both cases also claimed that their employer had an improper record-keeping system for overtime hours. The Court found that both certification motions should therefore succeed or fail together.

The Court rejected Scotiabank's assertion that the claims were "hopelessly individualized" and based upon the assertions of potentially thousands of employees who worked at hundreds of different branches with different systems for recording overtime hours, and different practices for compensating those hours. Even if later individualized claims were brought, the class action held common value. A class action which resolved whether Scotiabank held a duty to monitor, record, and compensate employees for all hours worked could assist later individual claims.

The Court did reject a claim for aggregate damages. Contrary to section 24(1) of the Class Proceedings Act, 1992,²⁶ the quantum of damages could only be determined if proof were given by individual claimants.The Court affirmed, however, that a class action was the preferable means for proceeding. Claims forpunitive damages, declaratory, and injunctive relief could only be satisfied by a court, and not inspectorsor referees. Moreover, a class action insulated employees from fear of employer reprisals, and theprohibitive costs of bringing personal claims.

(iii) McCracken v. Canadian National Railway Company

On March 19, 2008, Michael McCracken filed a class action law suit against his employer, Canadian National Railway Co. ("CNR"). McCracken was working as a first line supervisor, but had occupied various positions with CNR over the course of his 10 years of employment.

McCracken alleged that CNR misclassified first line supervisors as management in order to exempt them from overtime and that CNR's employees were regularly required by CNR policy to work more than standard hours, but were not paid for overtime. Prior to 2003, CNR treated first line supervisors as nonmanagerial workers and paid them overtime. Although job tasks and responsibilities had not materially changed, after 2003, according to Mr. McCracken, CNR arbitrarily changed its policy and stopped paying overtime to first line supervisors. He also claimed that first line supervisors do not exercise managerial functions. As in the CIBC and Scotiabank lawsuits, CNR's policy required workers to seek advance authorization to work overtime. McCracken claimed that due to the nature of CNR's work, this policy was impractical and unsafe. He also claimed that CNR did not pay general holiday pay, failed to keep accurate records as required by the Canada Labour Code, and breached its duty of good faith towards employees. McCracken claimed $250 million in general damages and $50 million in punitive damages.

The Court of Appeal set aside the motions judge's certification of the action. The Court noted that there are a wide range of first line supervisor positions at CNR, working in different aspects of the company operations, with different salaries, with varying levels of responsibilities, and in different locations. Sufficient similarity in the job functions and duties of class members was not established. A court could not find that specific employees were misclassified without resorting to the evidence of individual class members. There was no significant element in the claim that was capable of a common proof.

McCracken does not refute the proposition that employers may have duties with respect to overtime that are implied into employment contracts by the Canada Labour Code and regulations. The decision affirms that there must be sufficient commonality among affected employees in order for a class action to be certified. Where a complaint for unpaid overtime does not stem from the overtime policy or its application, but some from some other cause that is peculiar to the treatment of individual employees, a class action us unlikely to be considered suitable for certification by a court.

(c) Macaraeg v. E. Care Contact Centres Ltd.²⁷

Cori Macaraeg worked for E Care Contact Centres ("E Care") in British Columbia under a contract of employment that was silent about overtime pay. Macaraeg worked long hours, but was told by E Care that E Care did not pay for overtime. After 30 months, Macaraeg was terminated without cause. She brought an action for damages for wrongful dismissal for herself and payment of overtime hours on a class basis for herself and other E Care employees who claimed to have worked but not been paid overtime. The British Columbia Court of Appeal held that payment for overtime in accordance with the mandatory provisions of the Employment Standards Act was not an implied term in the employment contract. As a result, the Court of Appeal also held that the dispute about overtime pay should be adjudicated exclusively within the framework set out in the Employment Standards Act. Since the Employment Standards Act did not provide an employee with the right to enforce her rights to overtime pay either under the Act or as a civil action, Macaraeg was not entitled to pursue her overtime claim through a civil action. In addition, the Court of Appeal said that the Class Proceedings Act of British Columbia did not confer an independent substantive right to pursue a civil action to recover overtime pay. Rather the Class Proceedings Act simply allowed individuals to pursue pre-existing civil actions collectively. Since the E Care employees' overtime claims could not be pursued through a civil action on an individual basis, the mere fact that there were a group of employees pursuing such claims did not mean that the Class Proceedings Act applied.

The Macaraeg case is good news for employers whose employees' work is subject to employment standards legislation that does not provide employees with an election as to whether to pursue wage claims under the employment standards legislation or through a civil action. For such employers, it appears that, based on the decision of the British Columbia Court of Appeal, employees may have difficulty bringing class actions for unpaid wages. For employers in provinces like Ontario, where employment standards law does permit such an election, employees can bring class actions seeking payment of wages, including overtime pay.

Reducing Potential Liability for Hours of Work and Overtime Claims

The shifting and fluid boundaries of the work day and work place give rise to significant concerns that employers will face increasing demands from employees to be paid for work-related activities outside the regular work day and conventional work place. There is also a significant risk that employees will be seeking compensation for unpaid wages and overtime through class actions which are expensive and time-consuming to defend.

As a result, employers should assess their current exposure and take steps to reduce or, where possible, eliminate liability for unpaid wages and overtime. At a minimum, employers should review their policies and practices relating to "off-the-clock" work and determine whether such policies and practices comply with applicable employment standards legislation and case law.

1. Investigate Your Current "Hours Of Work" Culture

Employers concerned about potential liability for unpaid wages and overtime claims should investigate the "hours of work" culture as it is currently understood and followed by their employees. Among the questions an employer might ask are:

• Are there any "independent contractors" who provide services to us who are in reality employees?
• Which of our employees are subject to the hours of work and overtime provisions in the applicable employment standards legislation and which are exempt?
• Do we automatically treat employees who are paid a salary as not entitled to overtime pay?
• Are we calculating our employees' "regular rate" and overtime correctly?
• In the case of employees who are subject to hours of work and overtime legislation, have we structured their job duties so that they should usually be able to complete those duties during the regular hours of work?
• If not, do we need to reorganize the job duties, or are there other ways in which we can ensure that employees are able to complete their assigned duties during their regular hours of work?
• Are we scheduling meetings, even if described as "voluntary", at times that do not fall within the employees' regular work hours?
• Do we have a policy about working outside regular working hours? Do we follow it?
• Do we require employees to get permission in advance to work overtime?
• Do we permit employee to work "voluntary" overtime without compensation?
• Do we expect employees to stay in touch with work during "non-working" hours (e.g. by carrying electronic devices, checking emails, and being available to receive or make calls)?
• Do we require employees who work from home to keep records of their working time?

2. Develop Effective Hours of Work and Overtime Policies

Employers should draft or carefully review existing policies relating to "off-the-clock" work and overtime. The policies should clearly and unambiguously indicate:

• the regular hours of work applicable to employees;
• requirements for recording hours of work;
• whether and under what conditions employees are permitted to work in excess of their regular hours of work;
• procedures for requesting authorization to work in excess of the regular hours of work;
• overtime thresholds and rates;
• disciplinary penalties for failing to comply with policy requirements;

Where an employer does not want to permit employees to perform compensable work outside regular hours of work, the employer's policy should clearly state that an employee is neither expected, required, nor allowed to complete or perform tasks relating to their employment outside their standard work hours, other than tasks which are merely incidental to the employee's work and which require minimal time to perform. In addition, the policy should clearly state that if an employee does engage in unauthorized work outside regular hours of work, the employer will not be liable for any claims for unpaid wages. The employer, of course, has to enforce the policy. If the employer is aware of the fact that an employee is working at home in the evening and does nothing about that, the employer will be required to pay overtime to matter what the policy says. That is because the employer is permitting the employee to work overtime by not taking any action to prevent it. In other words, the policy must be enforced.

In the event that employees do bring claims for compensation either for unpaid work or overtime pay, evidence that an employer has proper policies in place may assist an employer in defending against the claims. Indeed, when faced with a potential class action, policies that comply with applicable employment standards legislation may assist an employer in arguing that a lawsuit should not be certified as a class action. If an employer can establish that claims of compensation or entitlement to overtime pay arise only in the exceptional circumstances where employer policies have not been followed, the employer is likely to be in a stronger position to argue that a class action should not be certified.

3. Educate Employees and Follow Policies

While developing effective policies which comply with applicable employment standards legislation is an important first step in reducing liability for hours of work and overtime claims, the policies will have little effect if they are not properly implemented and followed. Part of proper implementation is educating employees about the content and effect of the policies. Employees should be provided with copies of or access to the policies. The policies, and the consequences of non-compliance, should also be explained to employees. An employer may have to pay an employee who works unauthorized overtime for the hours worked, but the employer should also discipline the employ for breach of the policy.

4. Require Proper Documentation, Record Keeping and Workplace Audits

In order to reduce claims for unpaid wages and overtime, employers should keep accurate records of all hours worked by employees, including authorized and unauthorized overtime. Such records will also be essential in defending any claims for unpaid wages or overtime. In addition, tracking systems can be used to help employers ensure that both the employees and the employer are complying with the policies. A process to identify individuals or departments that claim significant "off-the-clock" hours of work or large amounts of overtime can act as an "early warning system", alerting managers to developing problems.

Employees who work outside the office, whether at home or at locations that may vary, should also be required to record and report their hours of work on a daily basis. Some employers, for instance, use calling requirements or software systems designed to assist employees in recording their time.

In addition, employers should regularly perform audits of employee work hours and recording requirements to ensure that employees are complying with the employer's hours of work and overtime policies. By identifying and analyzing anomalies, patterns or gaps in hours of work or overtime usage, employers are able to identify potential areas of liability. Moreover, performing an audit of work and overtime hours can be used to demonstrate that an employer exercised proper due diligence in ensuring that hours of work and overtime policies were properly implemented and enforced.

Conclusion

Developments in technology and more flexible working arrangements in most sectors of our economy have resulted in a significant shift away from the conventional work day and workplace for many employers and employees. Employment standards legislation has not kept up with these developments. As a consequence, employers can find themselves facing individual and class action claims for unpaid wages, including overtime claims.

In all likelihood, claims for unpaid overtime will become more common in the future. As a result, it is imperative that employers ensure that proper policies and practices are in place with respect to the classification of employees, the authorization of overtime pay, and the tracking and recording of any all hours and overtime worked. Class action lawsuits in particular can cost more than money; the ensuing publicity can negatively impact an employer's reputation among its employees and the public. With the stakes so high, the preventative measures outlined above will help to avoid claims in the future.

Footnotes

^{1 (1946), [1947] 1 D.L.R. 161 (Privy Council).}

^{2 See, for example, Wiebe Door Services v. M.N.R. (1986), 87 D.T.C. 5025 (Federal Court of Appeal).}

^{3 [1952] 1 T.L.R. 101 (Court of Appeal).}

^{4 See for example: Vizcaino v. Microsoft Corporation, 97 F.3d 1187 (9th Cir. 1996); Elizabeth Arden Canada, A Division of U L Canada Inc. v. Canada (M.N.R.), [1996] T.C.J. No. 38; and Drummond v. Canada (M.N.R.) [1998]T.C.J. No. 309.}

^{5 [2006] M.J. No. 366}

^{6 [2006] S.C.C.A. No. 484}

^{7 For example. see Baarda v. Plywood & Trim Co.. 2004 CarswellOnt 5566 (OLRB).}

^{8 O. Reg. 285/01, section 8(a).}

^{9 O.Reg. 285/01, section 6(1)}

^{10 R.S.B.C. 1996, c. 113, section 113.}

^{11 Fair Labour Standards Act, 29 U.S.C.}

^{12 Ibid, s. 254(a)(2)}

^{13 Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680, 692 (1946)}

^{14 Mike Rutti v. Lojack Corporation Inc., 2012 U.S. Dist. LEXIS 107677.}

^{15 Interpretation Guidelines Manual: British Columbia Employment Standards Act and Regulations: http://www.labour.gov.bc.ca/esb/igm/esa-part-1/igm-esa-s1-wrk.htm}

^{16 [2001] B.C.E.S.T.D No. 687}

^{17 R.S.B.C. 1996, c. 113, section 1(2).}

^{18 [2005] B.C.E.S.T.D. No. 192}

^{19 Section 1(2).}

^{20 [2000] S.C.J. No. 63 (SCC).}

^{21 Ibid. at paras 27-29.}

^{22Court File No. 07-CV-339348CP (Ont. S.C.J.).}

^{23 Fresco v. Canadian Imperial Bank of Commerce, 2012 ONCA 444.}

^{24 Fulawka v. Bank of Nova Scotia, 2012 ONCA 443.}

^{25 McCracken v. Canadian National Railway Co, 2012 ONCA 445.}

^{26 1992, S.O., c.6.}

^{27 2008 B.C.C.A. 182, leave to appeal to the Supreme Court of Canada refused [2008] S.C.C.A. No. 293.}

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.