Advisor-overtime lawsuit can proceed

By Staff | December 18, 2013 | Last updated on December 18, 2013
2 min read

An overtime lawsuit against BMO Nesbitt Burns can now proceed.

The Ontario Divisional Court has denied BMO’s appeal of an earlier decision certifying a class action against the bank for overtime compensation. The denial means that the earlier order of Justice Belobaba certifying the class action against BMO Nesbitt Burns Inc. stands.

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The class action claim alleges that Nesbitt Burns breached its duties to the class members by systematically and improperly denying overtime to the class. The allegations have not yet been proven. The decision denying leave to appeal will allow this case to proceed as a class action.

The class action covers approximately 1,500 current and former investment advisors, associate investment advisors and investment advisor trainees, employed by Nesbitt Burns since 2002, who may potentially be class members.

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Justice Belobaba found all three of the employee groups were “…excluded from overtime under the Nesbitt overtime policy because they are paid in whole or in part on commission.”

Yegal Rosen, a former investment advisor with Nesbitt Burns from 2002 to 2006, is the lead representative plaintiff in the action. Rosen claims he never received overtime compensation while working between 60 and 80 hours per week.

Koskie Minsky LLP and Eli Karp at Merchant Law represent the plaintiff in this action.

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Back in March, the Supreme Court of Canada cleared the way for a pair of class-action lawsuits against CIBC and Scotiabank seeking hundreds of millions of dollars for unpaid overtime to go ahead.

The banks had sought leave to appeal a lower court decision allowing the cases, but the Supreme Court dismissed the application.

The lawsuits allege thousands of workers were denied overtime pay even though they were assigned more work than could be completed within their standard hours.

A lower court had denied class action status to the CIBC case, while a different court had allowed class action status be granted to the Scotiabank lawsuit.

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However, the Ontario Court of Appeal felt both cases, which have not been proven in court, should be handled the same way and ruled they could go ahead.

In the CIBC case, teller Dara Fresco filed a lawsuit in June 2007. Fresco launched the case on behalf of more than 31,000 tellers and other front-line customer service employees working at more than 1,000 CIBC branches across Canada, including assistant branch managers, financial service representatives, financial service associates and branch ambassadors.

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Cindy Fulawka, a personal banking representative at Scotiabank, filed her class-action lawsuit against the bank in December 2007 seeking to represent some 5,000 Scotiabank personal or senior bankers, financial advisers and small business account managers. staff


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