A class action against BMO Nesbitt Burns Inc., owned by the Bank of Montreal, for unpaid overtime has been certified by an Ontario court. The class action includes more than 1,500 former and current investment advisers and trainees employed by Nesbitt Burns since 2002. The employees claim they were wrongly misclassified as being ineligible for overtime.
Justice Edward Belobaba of the Ontario Superior Court of Justice certified the class action after finding that the investment advisers, associate investment advisers and investment adviser trainees were “excluded from overtime under the Nesbitt overtime policy because they are paid in whole or in part on commission.”
The plaintiff alleges that Nesbitt Burns systematically and improperly denied overtime to the employees, thereby breaching its duties to the class members. Although the allegations have yet to be proven in court, the decision to certify the class action will now allow the case to proceed. Former investment adviser Yegal Rosen, employed by Nesbitt Burns from 2002 to 2006, has been appointed as the lead representative plaintiff in the class action. Rosen claims that while employed with Nesbitt Burns at the Thornhill, Ontario branch he never received compensation for overtime even though he worked between 60 and 80 hours a week. In Ontario most employees who work more than 44 hours per week are entitled to overtime. Under the Ontario Employment Standards Act (ESA), Rosen and fellow advisers claim that even commissioned employees are entitled to overtime payments. However, the ESA confirms that an employee is exempt from overtime protection based on two situations: if the work is “supervisory or managerial in character” or if the employee falls within the “greater benefit” exemption.
Justice Edward Belobaba further noted: “Nesbitt will be obliged to pay overtime under the ESA unless it can establish one of the two above-noted exemptions: that is, the ‘managerial’ exemption or the ‘greater benefit’ exemption.”
Nesbitt Burns argues the investment advisers manage their own business and overall autonomy, and have potential for high earnings which “provides greater benefit than overtime pay,” and therefore, should be exempt from overtime protection.
This class action is the latest one against a Canadian bank. Previously, two class-action lawsuits filed on behalf of thousands of employees against CIBC and Scotiabank, seeking hundreds of millions of dollars for unpaid overtime, were cleared by the Supreme Court of Canada to go ahead after it ruled that it would not hear the banks’ appeals. The workers allege they were denied overtime pay despite being assigned more work than could be completed within their standard work hours.
For more information, see the Financial Post “Ontario court certifies class action against BMO Nesbitt Burns for unpaid overtime”.
See also our blog, “Class Action for Overtime Pay Given Green Light”.