In a decision that marks the first of its kind, on August 20,
2013, Justice Belobaba of the Ontario Superior Court of Justice
certified a class action alleging that BMO Nesbitt Burns Inc.
failed to pay overtime to a group of approximately 1,500 current
and former Investment Advisors. The decision in Rosen v. BMO
Nesbitt Burns Inc. comes following a tumultuous period in
which the Supreme Court of Canada denied leave to appeal
certification in two "off-the-clock" overtime cases and
the Superior Court of Justice, Divisional Court and the Court of
Appeal of Ontario declined to certify two
"misclassification" cases, including a case premised on a
group of similarly situated employees in Brown v. Canadian
Imperial Bank of Commerce.
Despite the significant volume of judicial decisions and
commentary in this area in recent months, Rosen is the
first "misclassification" case of its kind to be
certified in Canada, as well as the first overtime class action to
be certified advancing claims under the Employment Standards
Act (Ontario). The proposed class in Rosen (much like
the proposed class in Brown) comprises current and former
BMO Investment Advisors, Associate Investment Advisors and
Investment Advisor Trainees who claim they were denied overtime pay
contrary to the ESA. Class members, who do not fall within the
prescribed classes of exempt employees under the ESA, allege that
contrary to their employer's position, they did not properly
qualify for one of two exemptions under the ESA from the
requirement to pay overtime for employees who have managerial or
supervisory duties and employees who receive a "greater
Justice Belobaba's decision to certify Rosen, in
contrast to the decisions of Justice Perell in McCracken v.
Canadian National Railway Co. and Justice Strathy in
Brown, appears to bring Ontario more in line with the
current approach adopted in the U.S., which views
"misclassification cases" more favourably than the
"off-the-clock" cases. It also suggests that class
counsel maybe focusing more closely on provincially-regulated
employers, shifting from an earlier focus on cases advanced on the
basis of alleged Canada Labour Code violations.
Ultimately, the expansion of the scope of overtime claims
certified in Ontario suggests prudent employers should carefully
review their own overtime and classification policies to ensure
they are complying with the statutory minimum requirements. This is
particularly important for employers of Investment Advisors, many
of whom do not appear to fall neatly within the typical
employee-employer relationship and who may not sign formal
employment agreements or work traditional hours. Employers
and their counsel alike will likely be closely watching the
Legislature in coming months with interest to see if it will take
steps to expand the prescribed class of exempt employees under the
ESA in light of the decision in Rosen.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
To print this article, all you need is to be registered on Mondaq.com.
Click to Login as an existing user or Register so you can print this article.
In Irwin v. Alberta Veterinary Medical Association, 2015 ABCA 396, the Alberta Court of Appeal found that the "ABVMA" failed to afford procedural fairness to a veterinarian undergoing an incapacity assessment.
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).