Employment Class Actions: Is the Work Culture of Banks Under Attack?

• Author: Jennifer Pocock
• Pages: 203-212

203

EMPLOYMENT CLASS ACTIONS: IS

THE WORK CULTURE OF BANKS

UNDER ATTACK?

Jennifer Pocock

Abstract: Employment class actions in the banking sector

are setting off alarm bells at some of Canada’s preeminent

f‌inancial institutions. The newest installation, Rosen v BMO

Nesbitt Burns Inc, w ill represent the f‌irst class action certi-

f‌ied in Canada involvi ng a “misclassif‌ication” of investment

advisors (IAs) by their employer. A potential 1,600-member

class of current and former IAS is bringing an action against

BMO Nesbitt Burns for unpaid overtime under the Ontario

Employment Standards Act, 2000. Although federal employ-

ment legislation was amended in 2006 to exclude overtime

for “commission-based sales people” working in federally

regulated bank s, the provincial legislation did not follow suit.

Nesbitt had always excluded IAs from overtime pay on the

basis that t hey were commission-based employees. The crux

of the dispute will hinge on whether Nesbitt can benef‌it from

the exemptions to overtime pay under provincial employ-

ment legislation.

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