On August 20, 2013, the Ontario Superior Court of Justice
certified a claim by a class consisting of investment advisors for
unpaid overtime. The defendant, BMO Nesbitt Burns Inc.,
argued that investment advisors fall within the exemptions for
overtime pay set out in the Employment Standards Act,
2000 (ESA) either because their role is
supervisory or managerial in nature, or their overall autonomy and
potential for high earnings provided them with benefits greater
than overtime pay. The representative plaintiff, a former
investment advisor, alleges that he and his fellow investment
advisors were misclassified as exempt from the overtime pay
requirements. In his decision, Justice
Belobaba certified as a common issue the question of class member
eligibility for overtime pay under the ESA and their contracts with
While the courts have certified a number of class actions
pertaining to overtime recently, all have been in the context of
"off-the-clock" actions where the main issue was not
whether the employees at issue were eligible for overtime pay, but
rather whether the policy requirement that overtime would only be
paid where employees obtained prior approval was contrary to
employment and labour legislation. This is the first
"misclassification" case of its kind to be certified in
Ontario. For a more detailed summary of this decision please
visit our Employment & Pension Law Blog.
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