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ARTICLE · 23 AUGUST 2013

Ontario Court Certifies Misclassification Overtime Class Action

Blake, Cassels & Graydon LLP
Blake, Cassels & Graydon LLP
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Blake, Cassels & Graydon LLP

Blake, Cassels & Graydon LLP

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Class Actions, Employment & Labour

CanadaEmployment and HR
Holly Reid
Holly Reid
Robin Linley
Robin Linley
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On August 20, 2013, Justice Belobaba of the Ontario Superior Court of Justice (OSCJ) certified a class proceeding involving misclassification overtime claims by investment advisers of BMO Nesbitt Burns (Nesbitt Burns). This case reminds employers that they must continue to consider class action risks in assessing their compliance with statutory overtime requirements.

The plaintiff claimed that Nesbitt Burns failed to pay him overtime pay in accordance with the requirements of the Ontario Employment Standards Act, 2000 (ESA), as he had been incorrectly classified by Nesbitt Burns as exempt from those requirements. Nesbitt Burns defended the claim on the basis that the proposed class members (1) were managers and therefore exempt from the overtime provisions of the ESA, and (2) had the potential for very high earnings, which provided them with greater benefits than the overtime pay required by the ESA.

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