In February, 2020, Mr. Paul Cheetham filed a class action lawsuit on behalf of two groups of Bank of Montreal (BMO) employees: private wealth consultants (“PWCs”) and mortgage specialists (“MSs”), the class members. In Cheetham v. Bank of Montreal, 2023 BCSC 1319, the class action was certified as a national class action under British Columbia’s Class Proceedings Act, R.S.B.C. 1996, c. 50 (the “CPA”).
The class members are federally regulated BMO employees working across Canada and who are entitled to the minimum entitlements provided by the Canada Labour Code, R.S.C., 1985, c. L-2 (the “CLC”). That includes vacation pay (s. 184.01) and statutory holiday pay (s. 196).
The class members are paid “variable compensation.” This means that their compensation is not fixed, but rather depends on business and personal performance. In addition to a base salary, it includes commissions, bonuses, and other incentive awards. These employees’ statutory vacation and holiday pay were not paid separately; instead, these items were included in their variable compensation.
Mr. Cheetham alleged that BMO systematically underpaid PWCs and MSs their vacation pay and holiday pay. He alleged that by including statutory vacation and holiday pay in the variable compensation, BMO breached the class members’ employment contracts and acted in bad faith.
One of the allegations was that BMO miscalculated statutory vacation and holiday pay, for example, by basing the calculations on salary alone instead of on total compensation.
He also alleged that BMO concealed its non-compliance with the CLC and with its contracts of employment by advising employees that its calculations were correct.
This case covers roughly 30,000 BMO employees who worked as PWCs or MSs between January 1, 2010, and December 31, 2018. Mr. Cheetham worked as a PWC in British Columbia until July 2017. He earned an annual base salary of about $45,000 plus variable compensation that in some years exceeded $200,000.
The B.C. Supreme Court held that the breach of contract claim satisfied s. 4(1)(a) of the CPA and could proceed. It accepted Mr. Cheetham’s argument that he was not alleging a free-standing cause of action for breach of the CLC, a claim that may be barred by the Court of Appeal for British Columbia’s decision in Macaraeg v. E Care Contact Centres Ltd., 2008 BCCA 182, leave to appeal ref’d [2008] S.C.C.A. No. 293. It distinguished Macaraeg on the basis that Mr. Cheetham asserted that BMO specifically incorporated CLC statutory pay obligations into the class members’ employment contracts.
At para 73, the B.C. Supreme Court found that the claim was for breach of contract, not breach of statutory duty. It also certified the claim that BMO breached its duty of good faith.
In Bank of Montreal v. Cheetham, 2025 BCCA 374, the B.C Court of Appeal allowed BMO’s appeal in part. The Court of Appeal upheld the certification of the breach of contract claim. However, it overturned the certification of the claims of a breach of a duty of good faith. At para 99, the B.C Court of Appeal stated that “to amount to bad faith, an employer’s conduct must be more than sloppy or careless. There must be some level of intent, malice or blatant disregard for the employee.
Mr. Cheetham is not the only one to have brought a class action against a major employer. In the past several years, employees in the financial services industry have launched several different class actions alleging that banks, insurance companies and others have underpaid their statutory holiday, vacation pay and overtime pay.
In Fresco v. Canadian Imperial Bank of Commerce, 2022 ONCA 115, for example, a class action alleged systemic underpayment of overtime. The Ontario Court of Appeal upheld findings that the employer breached the CLC by permitting uncompensated overtime and failing to maintain adequate record-keeping practices. The employer’s appeals on liability, damages, and limitations were dismissed. Aggregate damages certification was allowed. This case later settled for over $100 million.
In another example, Cunningham v. RBC Dominion Securities, 2022 ONSC 5862, a national class action was certified against RBC Dominion Securities (“RBC DS”). The claim alleged that employment standards legislation required that employees’ total earnings, including salaries and commissions, be used to calculate vacation and public holiday pay and that RBC DS was not paying vacation or holiday pay on commission (non-salary) wages.
The ability to bring a class action proceeding is not limited to employees in the financial services sector.
Gig workers have brought several class action proceedings against their employers as well, alleging that they are legally employees entitled to the minimum standards provided by employment standards legislation. A well known example, Heller v. Uber involves a class action on behalf of drivers and delivery people seeking damages for breach of Ontario employment standards legislation, breach of contract, negligence, and unjust enrichment.
In another example, Cervantes v. Pizza Nova Take Out Ltd. a class action brought by a delivery driver alleges that delivery drivers for 141 Pizza Nova franchisees are employees, rather than independent contractors, and should have received certain entitlements under employment standards legislation. Several causes of action have been certified.
By joining together, two or more employees may pursue a class action proceeding and share costs that would make individual claims less viable. This allows employees to challenge systemic issues, particularly where compensation structures may be complex and underpayments are widespread but individually modest.
Statutory minimum standards, including vacation and holiday pay, are mandatory. Courts are prepared to scrutinize variable compensation schemes and ensure statutory entitlements are properly calculated on total earnings.
These decisions reinforce that employees are not without recourse. Class proceedings provide a practical means for employees to enforce their rights and hold employers accountable when contractual obligations are not met.
If you have been underpaid, are experiencing issues at work, or simply want to understand your rights, we are here to help. Learn more about Inspire Law or book a consultation to discuss your specific situation.
This article is for general informational purposes only, does not constitute legal advice, and is not directed at any particular client or case. The views expressed herein are based on current law, specific facts and available information and may not be applicable to your specific situation or to any matter on which we may act. You should not rely on this material in place of consulting a qualified lawyer about your own situation.
About the Author
Susan Kootnekoff is a lawyer and founder of Inspire Law, an employment and human rights law practice that serves clients across British Columbia and beyond. She represents clients in employment related matters including wrongful dismissal claims, employment contract negotiations, severance negotiations, human rights complaints and workplace rights.
© 2026 Susan Kootnekoff, Barrister & Solicitor
