An Ontario court has declined to certify a lawsuit seeking overtime pay for analysts and investment advisors as a class action.
The plaintiffs in the case, a former analyst and a former advisor at CIBC World Markets Inc., were seeking to certify a class action on behalf of analysts, advisors, and associate investment advisors employed by CIBC and CIBC World Markets, seeking compensation for overtime.
In a decision released last week, Ontario’s Superior Court of Justice ruled that the case is not suitable for certification as a class action, as the potential class is not easily defined. “Class members have little in common but their names,” it says, adding, “The key issue of fact — namely, whether or not a person has managerial responsibilities — which is critical to the determination of overtime eligibility, cannot be determined on a common basis. There is no workable methodology to resolve that issue. The action simply will not work as a class action.”
The suit was originally brought by a former analyst who worked for its lending syndicates. According to the decision, he says that he was frequently required to work overtime, and when he asked about overtime pay, was told that he was not entitled to it under the bank’s overtime policy. A former investment advisor was not part of the original action, but sought to be added as a plaintiff in order to seek overtime pay for advisors too.
However, the court found that the case would not work as a class action. “The insurmountable impediment in this case, and the reason why the preferable procedure requirement has not been met, is that the issue of CIBC’s liability to pay overtime to every class member is an individual issue,” the decision says. “It will require individual fact-finding concerning the circumstances of every class member and the individual application of the relevant legal principles to those circumstances. A class action would not, therefore, be a fair, efficient and manageable way of advancing the claims of class members and it would not promote either access to justice or judicial economy.”
Additionally, the decision suggests that advisors likely wouldn’t be eligible for overtime. It says that even if it had found that a class action was the preferable procedure for resolving the claims of analysts, it wouldn’t have found the same for investment advisors and associate advisors. It notes that “there is no evidence at all that any present or former investment advisor… has a concern about being paid overtime or that there are access to justice concerns in the case of investment advisors… They view themselves as entrepreneurs who are prepared to work long hours to build a book of business from which they will benefit in the long term.”