Postscript to 'employment Class Actions: Is the Work Culture of Banks Under Attack?' - Rosen Certification Confirmed By Divisional Court

AuthorJennifer Pocock
Pages445-447
445
POSTSCRIPT TO “EMPLOYMENT
CLASS ACTIONS: IS THE WORK
CULTURE OF BANK S UNDER
ATTACK?”
Jennifer Pocock
[Editor’s note: The short piece that follows serves as a post-
script to Jennifer Pocock’s art icle, “Employment Class Act ions:
Is the Work Culture of Banks under Attack?,” which was pub-
lished in issue 9.1 of the Canadian Class Action Review. We
have included that article’s abstract, below, to provide some
context for the postscript that follows.]
Abstract to “Employment Class Actions: Is the Work Culture
of Banks under Attack?”: Employment class actions i n the
banking sector are setting off alar m bells at some of Canada’s
pre-eminent f‌inancial institutions. The newest installation,
Rosen v BMO Nesbitt Burns Inc, will represent the f‌irst class
action certif‌ied in Ca nada involving a “misclassif‌ication”
of investment advisors (IAs) by their employer. A potential
1,600-member class of current and former IAs is br inging an
action against BMO Nesbitt Burns for unpaid overtime under
the Ontario Employment Standards Act, 2000. Although fed-
eral employment legislat ion was amended in 2006 to e xclude
overtime for “commission-based s ales people” working in
federally regulated banks, the provinci al legislation did not
follow suit. Nesbitt had always excluded IAs from overtime
pay on the basis th at they were commission-based employ-
ees. The crux of the dispute will hinge on whether Nesbitt
can benef‌it from the exemptions to overtime pay under prov-
incial employment legislation.

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