TD Bank could face $500-million class action lawsuit over pay

The Toronto Dominion Bank (TD) is facing a $500 million class action lawsuit concerning workers’ compensation.

The lawsuit claims that, for years, TD failed to pay or properly pay vacation and/or public holiday pay on their commissions, volume bonuses and other variable (non-salary) payments.

The employer owes these TD mobile mortgage specialists across Canada vacation and/or holiday pay, on top of the set commissions and other non-salary compensation earned by those employees, according to the law firm Cavalluzzo.

"Compliance with minimum employment standards is important for all employees generally,” say Toronto lawyers David O'Connor of Roy O'Connor, Stephen Moreau of Cavalluzzo and Daniel Lublin of Whitten & Lublin, who are representing the proposed representative plaintiff Jason Chiang.

“We will be bringing a motion to request that this case be certified for this class of employees and, if it is certified, a court will subsequently consider and evaluate the issues alleged in the claim."

In January, after a legal action that lasted more than 15 years, CIBC agreed to pay a total of $153 million to roughly 30,000 current and former employees.

Vacation pay rules under Canada Labour Code

Under the federal Canada Labour Code, employees governed by that statute – including employees paid in part or whole by commission and bonuses – are entitled to vacation pay of four to eight per cent (depending on their length of employment) of their gross or total wages, note the law firms.

“The code also provides that those employees are entitled to additional pay for the statutory public holidays. Employees in many industries are not aware of these minimum employment standards and how they are applied,” they say.

Employers continue to be exposed to significant financial and reputational risk for failing to comply with minimum employment standards legislation relating to vacation and overtime pay, says one legal expert.

Chiang, the proposed representative plaintiff, is a veteran mobile mortgage specialist who spent nearly 13 years working for the TD bank in Vancouver.

"It is important to me that a court assess whether these mobile mortgage specialists are being paid the vacation and holiday pay required by the employment legislation," he says. "I am pleased to advance this case for all these employees."

The allegations in the claim against TD have yet to be tested or proven in court, and the law firms expect the employer will defend the action and deny the allegations.

CHRR has not seen a statement from TD regarding the development as of writing of this article.