On December 29, 2022, the Ontario Superior Court certified a class proceeding against RBC Dominion Securities, which claims that it failed to pay vacation and public holiday pay to its financial and investment services employees, as required by employment standards legislation.
Daniel Lublin of Whitten & Lublin PC is one of lead class action lawyers representing the employees, such as investment advisors, wealth advisors, portfolio managers, Associates and Assistants, who are compensated either fully or partially based on commissions or other incentive fees.
The claim alleges that RBC DS failed to pay vacation or holiday pay on the commission income earned by non-salaried employees.
The Court noted that it was not disputed that employers are statutorily required to pay employees who earn commissions a separate and additional amount for vacation and holiday pay. The court also noted that it was not disputed by RBC DS that the legislation also required it to provide employees with a record of the vacation and holiday pay they received and how those amounts were calculated.
RBC DS asserted that it satisfied the legislative requirements. Whether RBC DS does in fact comply with those legal requirements is yet to be determined, although the court’s decision observes that RBC DS appeared to acknowledge that it may not have satisfied the legislative recording and reporting requirements.
This decision represents a critical first step in the litigation and allows the Plaintiff to subsequently test in court whether the RBC DS practices relating to vacation and holiday pay satisfy the legislative requirements. The Court will approve a formal notice of certification summarizing, among other things, the Class Members’ rights under the certification order.
Whitten & Lublin PC is very pleased with this decision. Non-payment of vacation pay on commission or other incentive income is a common situation for employers in the financial services industry and in many other industries where workers are paid commissions, bonuses, stock options, share units, and other compensation. The law generally requires that a separate and additional amount for vacation and holiday pay be added to these forms of incentive income. Such additional pay can be significant for employees.