As we discussed in an earlier
blog post, a class action alleging BMO Nesbitt Burns failed to
pay overtime to its current and former investment advisors was
certified in August 2013. Rosen is the first certified
class action where the plaintiff class alleges that they were
"misclassified" as managerial or supervisory employees.
The other certified overtime class actions involved allegations
that the employer failed to record or pay overtime to otherwise
BMO Nesbitt Burns sought leave to appeal the decision to the
Divisional Court (unsuccessful defendants do not have an automatic
right of appeal from certification decisions). On December 17,
2013, Justice Harriet Sachs dismissed the motion, effectively sending the
class action onto trial.
The test on a motion for leave to appeal is onerous: the moving
party has to demonstrate that there is a conflicting decision or
there is "good reason" to doubt the correctness of the
Seemingly fortunate for BMO Nesbitt Burns, CIBC successfully
overtime misclassification class action involving investment
advisors in April. Justice Sachs didn't accept that
Brown v Canadian Imperial Bank of Commerce was a
conflicting decision. To be a conflicting decision the judges have
to have applied different legal principles. In her view,
Brown and Rosen relied on the same law but are
different on the facts. BMO Nesbitt Burns also tried to argue, to
no avail, that the certification decision was likely incorrect
because the motion judge misapprehended some of the evidence.
Though it is likely cold comfort to BMO Nesbitt Burns, the Court
of Appeal for Ontario granted leave to appeal in Brown in
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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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