Court certifies class action against BMO Nesbitt Burns for unpaid overtime

TORONTO – An Ontario court has certified a class action against BMO Nesbitt Burns Inc. involving unpaid overtime, the latest in several such actions against Canadian banks that seek hundreds of millions of dollars.

Lawyers say the latest class action covers more than 1,500 current and former investment advisers, associate investment advisers and investment adviser trainees employed by Nesbitt Burns since 2002.

Koskie Minsky LLP and Eli Karp at Merchant Law are representing the plaintiff in the action.

They say Justice Edward Belobaba of the Ontario Superior Court of Justice certified the class action after finding that 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.”

The plaintiff alleges that Nesbitt Burns, owned by the Bank of Montral (TSX:BMO) breached its duties to the class members by systematically and improperly denying overtime to the class.

The allegations have not been proven. However, the certification decision will allow the case to proceed as a class action.

Yegal Rosen, a former investment adviser with Nesbitt Burns from 2002 to 2006, has been appointed as the lead representative plaintiff in the action.

Plaintiff lawyers say that during his time with Nesbitt Burns, Rosen never received overtime compensation even though he worked between 60 and 80 hours a week.

Back in March, the Supreme Court of Canada cleared the way for a pair of class-action lawsuits against CIBC (TSX:CM) and Scotiabank (TSX:BNS) 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.

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.

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.