In the latest of a string of recent rulings regarding class action lawsuits for alleged unpaid overtime, the Ontario Superior Court of Justice's August 20, 2013 decision in Rosen v. BMO Nesbitt Burns Inc.approved a class of up to 1,600 current and former investment advisors of BMO Nesbitt Burns Inc.

The representative plaintiff claims that the advisors worked upwards of 60 to 80 hours per week, and the employer allegedly failed to live up to its contractual and statutory obligations and failed to pay overtime Ontario's Employment Standards Act, 2000 ("ESA").

In response, Nesbitt Burns argues that the advisors are exempt from the hours of work and overtime provisions of the ESA because they fall within one or both of two possible exemptions. First, the employer says the advisors manage their own business and, to that end, fall under the manager and supervisor exemption. Second, Nesbitt Burns argues that the advisors are exempt because their overall autonomy and potential for high earnings provides them with greater benefits than those set out in the legislation.

the ONCA grants certification

Pursuant to Ontario's Class Proceedings Act, 1992 (the "CPA"), a court is obligated to certify a proceeding as a class proceeding where: (a) the pleadings disclose a cause of action; (b) there is an identifiable class; (c) the claims of the class members raise common issues of fact or law; (d) a class proceeding would be the preferable procedure; and (e) there is a plaintiff who adequately represents the interests of the class.

In the Rosen case, the Court found that the claim by the advisors satisfies the five criteria above. CPA. In particular, all of the employees in the proposed class appeared to have had the same or very similar job functions; namely, they were relatively independent and autonomous, they marketed their services and developed business, they reviewed and researched investment recommendations and they managed client investment portfolios. Therefore, whether the manager and supervisor exemption and/or "greater benefit" exemptions apply are common issues that affect all of the individuals in the class. In granting certification, however, the Court was careful to note that the bar for certification is "obviously" very low.

but it's far from over

As this decision notes, certification of a class action is a procedural measure that has nothing to do with the merits of the dispute. Whether or not the advisors are actually entitled to overtime pay is a matter that will be decided at trial. And the outcome of any trial will ultimately turn on whether or not the employer can establish that the plaintiff class members fall within either or both of the managerial and supervisory exemption, and the greater benefit exemption to the ESA. In any event, Nesbitt Burns has indicated that they will be seeking leave to appeal the decision to certify to class.