Category Archives: Overtime

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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Filed under Employment, Employment Standards, Employment Standards Act, Overtime

A (Further) Update on the Overtime Class Action Cases

There have been some recent developments in the overtime class action cases that have been winding their way through the courts.

When we last checked in, the Ontario Court of Appeal had certified the actions as class proceedings, effectively permitting the plaintiffs to pursue claims for unpaid overtime on behalf of thousands of employees of the Bank of Nova Scotia and CIBC. Both cases primarily deal with the issue of whether the banks implemented overtime policies that required or permitted employees to work uncompensated overtime hours. The banks sought leave to appeal the certification decisions to the Supreme Court of Canada.

Last week, the Supreme Court of Canada dismissed both applications for leave. As a result, the claims against the banks can now proceed to trial. In both cases, the plaintiffs are seeking damages in the hundreds of millions of dollars, so we can expect that these cases will be vigorously contested.

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Filed under Employment, Employment Standards, Overtime

An Update on the Overtime Class Action Cases

Maria Kotsopoulos 

Three recent decisions have provided some clarification on the issue of class actions by employees for unpaid overtime. On June 26, 2012, the Court of Appeal for Ontario issued its decision in the cases ofFulawka v. The Bank of Nova Scotia, Fresco v. Canadian Imperial Bank of Commerce and McCracken v. Canadian National Railway Company. Each case dealt with the preliminary question of whether the action should be certified as a class proceeding. In effect, the Court was being asked to determine if representative plaintiffs should be permitted to pursue claims on behalf of hundreds or even thousands of employees. As such, the amounts at issue in these cases are potentially significant.

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Filed under Employment, Overtime