An (Even Further) Update on the Overtime Class Action Cases

In previous blog posts (here and here), we discussed the ongoing twists and turns involving the class actions against the Bank of Nova Scotia and CIBC for unpaid overtime. Both of those actions were certified as class proceedings, and the applications by the banks for leave to appeal to the Supreme Court of Canada were dismissed.

Recently, another overtime class action reached the certification stage. The case of Rosen v. BMO Nesbitt Burns Inc. involves allegations that investment advisors employed by an investment firm were improperly excluded from their employer’s overtime policy.

Unlike the class actions against the Bank of Nova Scotia and CIBC, which have been described as “off the clock” cases where the employer failed to properly recognize the hours worked by employees who were eligible for overtime, Rosen is a “misclassification” case. The plaintiffs in Rosen worked long hours developing their books of business, but their compensation was commission based. Accordingly, Nesbitt Burns did not track or record the hours they worked and did not pay them overtime pay. The plaintiffs claim is based on the allegation that they do not fall within the prescribed classes of employees who are exempt from the overtime provisions of the Ontario Employment Standards Act, and are therefore statutorily entitled to overtime pay.

In certifying the case against Nesbitt Burns, Justice Belobaba distinguished an earlier “misclassification” case against CIBC that was not certified.   In contrast to that case, Justice Belobaba found that all of the employees in the proposed class had similar job functions and relatively standard employment contracts that resulted in common issues that were applicable to all class members.

Given the contrasting decisions in the “misclassification” cases, it can be expected that Nesbitt Burns will appeal the certification decision to the Ontario Court of Appeal. If the decision is upheld, the plaintiff will be permitted to move forward with the claim on behalf of approximately 1,500 investment advisors.

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