In a recent decision, the Ontario Superior Court of
Justice certified another overtime class action. The class
consists of investment advisors claiming that they are owed
overtime pay by the defendant, BMO Nesbitt Burns Inc.
This is the first "misclassification" case of its kind
to be certified in Ontario, and runs counter to the 2012 decision
Brown v. CIBC, wherein the court held that whether an employee
was eligible for overtime could not be determined on a class
The plaintiff, a former investment advisor at BMO Nesbitt,
alleges that he and his fellow investment advisors were wrongly
classified as ineligible for overtime pay in violation of the Employment
Standards Act, 2000. BMO Nesbitt's position was that
its investment advisors fall within the ESA's exemptions from
overtime pay, as their work was either supervisory or managerial in
nature, or their overall autonomy and potential for high earnings
provided them with a greater benefit than overtime pay.
The proposed class covers more than 1,500 current and former BMO
Nesbitt investment advisers, including those who performed the same
or similar job functions under different job titles, and excluding
any time period that such individuals held various managerial
positions or were on a team that had one or more associates or
sales assistants assigned to them.
Similar to Brown, the central issue to be decided in the
certification proceeding was whether the proposed class had a
sufficient commonality or similarity of job functions that
eligibility for overtime pay could be determined without resorting
to individual findings of fact. BMO Nesbitt argued that in
accordance with Brown, individual determinations were necessary to
determine whether each investment advisor fell within any of the
applicable ESA exemptions.
The Court ultimately disagreed, and concluded that the key
issues could be decided without resorting to individual findings of
fact, and as a result, the class action was certified.
The Court distinguished the proposed class from that in Brown by
noting that "unlike in Brown, all of the Nesbitt investment
advisors involved in management or supervisory work, i.e. branch
managers and team leaders, have been excluded from the class
definition." As a result, the Court was satisfied that the
investment advisors in the proposed class possessed a sufficiently
common set of duties such that the applicability of the
"managerial" exemption could be determined as a common
As for the "greater benefit" exemption, the Court was
content that all of the core terms in each class member's
initial employment agreement were essentially the same and could
therefore be assessed as a class.
This decision arguably runs contrary to the decision of the same
court in Brown and marks a further step in the recent trend of
certifying overtime class proceedings. It will be interesting
to see if the case is appealed and, if so, whether it will be
upheld by the Court of Appeal after a review of the full
evidentiary record. It should also be remembered that a
certification decision is not a decision on the merits.
Nevertheless, in order to avoid a similar fate, employers should:
(i) review jobs/positions that are classified as "managerial
or supervisory" to determine whether they truly fall within
the ESA overtime exemption; and (ii) revisit their overtime
policies to ensure that they meet the statutory requirements and
are administered so as to not create a situation whereby employees
are "permitted or suffered" to perform unauthorized work
in excess of applicable overtime thresholds.
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.
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