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

• Author: Jennifer Pocock
• Pages: 445-447

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.