In the latest of a string of recent rulings regarding class
action lawsuits for alleged unpaid overtime, the Ontario Superior
Court of Justice's August 20, 2013 decision in Rosen v. BMO
Nesbitt Burns Inc.1 approved a class of up to 1,600
current and former investment advisors of BMO Nesbitt Burns
The representative plaintiff claims that the advisors worked
upwards of 60 to 80 hours per week, and the employer allegedly
failed to live up to its contractual and statutory obligations and
failed to pay overtime Ontario's Employment Standards Act,
In response, Nesbitt Burns argues that the advisors are exempt
from the hours of work and overtime provisions of the ESA because
they fall within one or both of two possible exemptions. First, the
employer says the advisors manage their own business and, to that
end, fall under the manager and supervisor exemption. Second,
Nesbitt Burns argues that the advisors are exempt because their
overall autonomy and potential for high earnings provides them with
greater benefits than those set out in the legislation.
The ONCA grants certification
Pursuant to Ontario's Class Proceedings Act, 1992
(the "CPA"), a court is obligated to certify a proceeding
as a class proceeding where: (a) the pleadings disclose a cause of
action; (b) there is an identifiable class; (c) the claims of the
class members raise common issues of fact or law; (d) a class
proceeding would be the preferable procedure; and (e) there is a
plaintiff who adequately represents the interests of the class.
In the Rosen case, the Court found that the claim by
the advisors satisfies the five criteria above. CPA. In particular,
all of the employees in the proposed class appeared to have had the
same or very similar job functions; namely, they were relatively
independent and autonomous, they marketed their services and
developed business, they reviewed and researched investment
recommendations and they managed client investment portfolios.
Therefore, whether the manager and supervisor exemption and/or
"greater benefit" exemptions apply are common issues that
affect all of the individuals in the class. In granting
certification, however, the Court was careful to note that the bar
for certification is "obviously" very low.
But it's far from over
As this decision notes, certification of a class action is a
procedural measure that has nothing to do with the merits of the
dispute. Whether or not the advisors are actually entitled to
overtime pay is a matter that will be decided at trial. And the
outcome of any trial will ultimately turn on whether or not the
employer can establish that the plaintiff class members fall within
either or both of the managerial and supervisory exemption, and the
greater benefit exemption to the ESA. In any event, Nesbitt Burns
has indicated that they will be seeking leave to appeal the
decision to certify to class.
1. 2013 ONSC 2144
The foregoing provides only an overview. Readers are
cautioned against making any decisions based on this material
alone. Rather, a qualified lawyer should be consulted.
Unfortunately, reasonable accommodation for employees in the workplace continues to be the source of significant litigation and even today we continue to see outrageous examples of employers behaving badly.
We are now beginning to see reported cases involving charges and subsequent fines laid against employers for failing to provide information, instruction and supervision to protect a worker from workplace violence.
On October 13, 2016, the Supreme Court of Canada denied leave to appeal an Ontario Court of Appeal decision which ordered an employer to pay a former employee 37 months of salary and benefits following termination.
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