Court issues reasons for approving Scotia overtime settlement

Justice Edward Belobaba approved the proposed settlement at a hearing in mid August and has now issued his reasons for approving the deal. (See Scotiabank overtime settlement approved, investmentexecutive.com, August 12, 2014.)

“The settlement provides class members with a remedy that, in my view, is as good or better than what could reasonably have been achieved after a successful common issues trial, but without the associated risk and delay of such a trial and the inevitable appeals,” he said in his decision.

The judge notes that the total cost of the settlement will not be known until all of the overtime claims have been evaluated, but that class counsel estimates that it may be in excess of $95 million. “It is important to note again that Scotiabank will pay claims without any limit – whatever claims are submitted and approved will be paid,” he said.

As for the terms for the deal itself, Belobaba noted that all overtime that was required, or permitted, is compensable under the settlement, whether or not the overtime work was “approved”; that the settlement provides for “an efficient and streamlined process that will allow for claims going back as far back as 13 years without the need for supporting documentation”; and that it also provides for an independent appeal process that is streamlined, and free to class members. And, he added that the bank has promised that there will be no retaliation against employees that make claims under the process.

“I agree with both the representative plaintiff and class counsel that the settlement is an excellent and creative resolution to this litigation. It is a realistic and reasonable compromise that balances the certainty of substantial compensation for the class members today against the prospect of continued litigation and an uncertain outcome in the future,” the decision said. “The settlement is easily approved. In my view, it is fair and reasonable and very much in the best interests of the class.”

Belobaba also approved a $10.45 million fee for class counsel in the case, which was arrived at after an arbitration process between the banks and class counsel. In approving the fee, the judge noted that, given the estimated $95 million cost of the settlement, this is much less than class counsel “would arguably have been entitled to under the 30% contingency agreement. I am therefore satisfied that the $10.45 million amount is fair and reasonable.”

Belobaba also approved a $15,000 honorarium for the representative plaintiff in the case, Cindy Fulawka. “Ms. Fulawka devoted a great deal of time and effort to this litigation and played a key role throughout. If the honorarium is to be paid out of class counsels’ share (as here) and is not paid as a “kick back” for lending one’s name to a class proceeding (no such suggestion here) then I am prepared to approve this request and I do so without hesitation,” he says in his decision.