Overtime Class Action for Commissioned-Based Employees Approved

The Ontario Superior Court of Justice recently certified a class action for an unpaid overtime claim by current and former investment advisors (IAs) of BMO Nesbitt Burns Inc. The group of IAs included in the claim managed their own schedules and books of business. As a result, they often worked long hours and were compensated by commission. Nesbitt Burns did not track their hours worked and did not compensate them for overtime.

Under the Ontario Employment Standards Act, employers must compensate employees for overtime unless one of two exemptions applies: if the employee’s work is “supervisory or managerial in character” or if the employee falls under the “greater benefit” exemption. In this class action, the plaintiff claims that neither exemption applies.

However, the substance of that claim has not yet been proven in court, as the approval of a class action is procedural in nature. Instead, the court determined that the plaintiff has satisfied the requirements of s. 5(1) of the Class Proceedings Act, which includes: (a) the pleadings disclose a cause of action; (b) there is an identifiable class; (c) the claims raise common issues of fact or law; (d) a class proceeding is the preferable procedure; and (e) there is a representative plaintiff who will adequately represent the interests of the class.

This decision illustrates the need for employers to mindful that statutory entitlements may apply to positions which historically have not received them, including positions which may be highly paid or involve significant independence and responsibilities. In such cases, the availability of class proceedings may expose employers to significant, unanticipated liabilities.

For questions regarding the information presented in this article, please contact Keith Mitchell, Partner.

Rosen v. BMO Nesbitt Burns Inc., 2013 ONSC 2144