Disclaimer

The Employment Standards Act, 2000 Policy and Interpretation Manual content is subject to change without notice. The Ministry of Labour, Immigration, Training and Skills Development makes no warranty, express or implied, about the currency, accuracy or completeness of the Manual. It cannot be reproduced. It is not intended to replace the Employment Standards Act, 2000 (ESA 2000), the Employment Protection for Foreign Nationals Act, 2009 (EPFNA), or regulations made pursuant to those acts. Reference should always be made to the official version of the legislation. For complete and current information, please refer to the ESA 2000, EPFNA and regulations thereto found on the Government of Ontario's e-Laws website.

About

The manual

Welcome to the Employment Standards Act, 2000 Policy and Interpretation Manual ("the Manual"). This Manual is the primary reference source of the policies of the Director of Employment Standards respecting the interpretation, administration and enforcement of the Employment Standards Act, 2000, SO 2000, c 41 ("ESA 2000") as well as the Employment Protection for Foreign Nationals Act, 2009, SO 2009, c 32 ("EPFNA"). The EPFNA incorporates by cross-reference many provisions of the ESA 2000 and, like the ESA 2000, is administered and enforced by the Employment Standards Program of the Ministry of Labour, Immigration, Training and Skills Development .   

The ESA 2000 was established by Bill 147 and proclaimed into force as of September 4, 2001. The ESA 2000 repeals and replaces the former Employment Standards Act, RSO 1990, c E.14 ("the former Act") and several other related employment law statutes. This is the first comprehensive overhaul of Ontario's employment standards legislation in more than two decades. While most of the employment standards under the former Act are contained in the ESA 2000, the wording of most of the provisions has been revised, and numerous administrative and housekeeping alterations have also been made. Further, there are several significant, substantive changes as between the former Act and the ESA 2000.

The EPFNA applies to foreign nationals who are employed or attempting to find employment in Ontario pursuant to an immigration or foreign temporary employee program. Among other rights and protections afforded under the EPFNA , the EPFNA prohibits recruiters from charging fees for any goods, services or benefits provided in connection with finding employment for these foreign nationals. Employers are also prohibited from recovering any costs from such foreign nationals that were incurred in connection with arranging to employ the individual, unless permitted by regulation.

The policies contained in this Manual are intended primarily for the use of employment standards officers and persons within the Ministry of Labour, Immigration, Training and Skills Development administering the ESA 2000 as well as the EPFNA . The policies contained in the Manual have been developed with the input of Employment Standards Program staff. We are interested in ensuring that both the ESA 2000 and the EPFNA are applied in a consistent manner throughout the province and the Manual is designed to facilitate that objective. These policies may be revised as case law develops and interpretations evolve. Policy revisions are included in the Manual updates.

The Manual is organized by legislation and regulation: firstly, the ESA 2000 and regulations thereto, and then EPFNA and regulations thereto. The ESA 2000 is broken down by part and then by section. The EPFNA is broken down by section.

The Manual contains numerous references to decisions under the ESA 2000 of the Ontario Labour Relations Board ("the Board"). There are also references to the decisions of referees and adjudicators who had jurisdiction to hear reviews under the former Act prior to the jurisdiction being transferred to the Board on June 29, 1998. While these decisions were issued under the former Act, they are included in the Manual because the principles enunciated in the decisions remain relevant under the Employment Standards Act, 2000. The Board also has jurisdiction to hear reviews under the EPFNA and as decisions are issued under the EPFNA , these will also be cited when the Program considers it appropriate to do so. 

It is important to note that these decisions may not necessarily reflect Program policy on a particular point. Where a decision in the Manual is not in accordance with our policy, this is usually noted in the Manual. Employment standards officers are required to follow the policies established by the Director of Employment Standards.

Employment Standards Program

The ESA 2000 and the EPFNA are both administered by the Ontario Ministry of Labour, Immigration, Training and Skills Development 's Employment Standards Program.

This decentralized Program consists of the Employment Practices Branch ("EPB"), located in the Ministry's main office, and six regional operating areas. The directors of the six regions and the EPB report to the Fair, Safety and Healthy Workplaces Division.

Each region has several Managers who are responsible for planning and giving direction for program delivery. The regions also have Regional Program Coordinators who provide program support.

The EPB has a Provincial Coordinator who is responsible for overall program coordination, and several Provincial Specialists who provide information, support and advice to the field operations; liaise with and provide support to the field and the Ontario Labour Relations Board with respect to the review process; and are responsible for the writing and updating of this Manual.

The Employment Standards Program Advisory Committee, which comprises individuals from each of the regions and the EPB, provides advice and recommendations to the Director of Employment Standards, who sets Program policy direction.

In this decentralized model, many of the statutory powers and duties of the Director of Employment Standards have been delegated to the regional operations. Note that a listing of these powers and the persons to whom they have been delegated under the ESA 2000 is contained in the Delegation of Powers section.

Delegation of powers

Delegation of powers – Employment Standards Act, 2000

The following lists the powers and duties of the Director of Employment Standards in the sequence that they appear in the Employment Standards Act, 2000 and indicates to whom the powers or duties have been delegated.

Abbreviations used

  • DES – Director of Employment Standards
  • RD – Regional Director
  • D/PM – District or Program Manager
  • RPC – Regional Program Coordinator
  • ESO – Employment Standards Officer
  • PC – Provincial Coordinator
  • PS – Provincial Specialist (*by name)
  • MTFSU – Manager, Trust Fund Services Unit
  • MSPPA – Manager, Strategic Planning & Program Administration Unit
  • CP – Claims Processor, Provincial Claims Centre ("PCC")
  • CPCC – Coordinator, PCC
  • PMPCC – Program Manager, PCC
  • ASMPCC – Administrative Services Manager, PCC
  • MOF – Collector

Delegated powers

  • Section 8(2) Approval of Notice of Civil Proceeding form: Not delegated
  • Section 17.1(7) Issuance of approval for hours of work: PC, PS, MTFSU, MSPPA
  • Sections 17.1(16) and (19) Revocation or refusal of approval for hours of work: PC, PS, MTFSU, MSPPA
  • Sections 21.1(1) and (2) Prepare and publish documents re rights and obligations under hours of work and overtime provisions: Not delegated
  • Section 22.1(6) Issuance of approval for overtime averaging: PC, PS, MTSFU, MSPPA
  • Section 22.1(13) Impose conditions on an overtime averaging approval: PC, PS, MTSFU, MSPPA
  • Sections 22.1(14) and (17) Revocation or refusal of approval for overtime averaging: PC, PS, MTSFU, MSPPA
  • Section 41(1) Approval of request to forgo vacation time: RD, D/PM
  • Section 56(2)(b)(v) Approval to set the time of a temporary lay-off: RD
  • Section 58(2) Approval of Form 1: Not delegated
  • Section 66(1) Approval of an installment plan to pay severance pay: PC, MTFSU
  • Sections 74.7(1) and (2) Prepare and publish document re rights and obligations of temporary help agencies, clients and assignment employees: Not delegated
  • Section 88(2) Establishment of policies regarding the ESA 2000: Not delegated
  • Section 88(5) Establishment of interest rate: Not delegated
  • Section 88(8) Use of surplus interest to pay financial institution charges: PC, MTFSU, MSPPA
  • Sections 88.1(1) and (3) Reassign investigation or inspection: RD
  • Section 88.2(1) Give recognition to an employer: Not delegated
  • Section 88.2(3) Require an employer who is seeking recognition to provide information: Not delegated
  • Section 88.2(4) Publish or make available to the public information about employers given recognition:  Not delegated
  • Section 88(6) Revoke or amend a recognition: Not delegated
  • Section 95(7) Direct Board to consider manner of service: PC, MSPPA
  • Section 96(1) Approval of claim form: Not delegated
  • Section 99(6) Permit claim from employee covered by collective agreement: Not delegated
  • Section 105(3) Pay out vested monies to an entitled person: Not delegated
  • Section 106(6) Requirement to pay amount ordered under director's order to pay issued under s. 106 to the Director of Employment Standards in trust: RD, D/PM, ESO
  • Section 107(2) Requirement to pay amount ordered under director's order to pay issued under s. 107 to the Director of Employment Standards in trust: RD, D/PM, ESO
  • Section 108(5) Contravention of a compliance order may be restrained upon an application to a judge: RD
  • Section 109(2) Distribute money rateably: PC, MTFSU, MSPPA
  • Section 112(5) Distribute monies received from an ESO, based on a settlement to the employee: PC, MTFSU, MSPPA
  • Sections 116(1)(b) and (c) Accept irrevocable letter of credit for review: PC, MTFSU, MSPPA
  • Section 120(3) Approval of settlement of a compliance order through a labour relations officer: RD, PC
  • Section 120(6)(a) Distribute monies in accordance with settlement through a labour relations officer: PC, MTFSU, MSPPA
  • Section 121(1) Referral of a benefit plan matter (Part XIII of the ESA 2000) to the Board: Not delegated
  • Section 125(1) Make a third party demand: RD, D/PM, RPC, ESO, MOF
  • Section 125(3) Service of the notice of a third party demand: RD, D/PM, RPC, ESO, MOF
  • Section 125.1 Accept security for amounts owing:  Not delegated
  • Section 125.2 Issue a warrant, directed to the sheriff, to enforce payment of an order:  Not delegated
  • Section 125.3(1) Register a lien and charge on real property: Not delegated
  • Section 125.3(2) Register a lien and charge on personal property: Not delegated
  • Section 125.3(6) Register a renewal of a lien and charge on personal property: Not delegated
  • Section 126(1) and (4) Certifying a copy of an order or notice of contravention: RD, D/PM, RPC, ESO, MOF
  • Sections 126(2) and (4) Service of a notice of the filing of order or notice of contravention: RD, D/PM, RPC, ESO, MOF
  • Sections 126(3) and (4) May enforce an order or notice of contravention as a judgment or order of the court: RD, D/PM, RPC, ESO, MOF
  • Sections 127(1) – (4) Authorization of collector to exercise specified powers, collect a fee and impose conditions: Not delegated
  • Section 128(3)(a)(ii) Written consent to permit collector to pay directly to person entitled to the wages, fees or compensation: PC, MTFSU, MSPPA
  • Section 129(1)(b) Written approval to permit collector to settle a notice of contravention: PC, MTFSU, MSPPA
  • Section 129(2) Written consent to permit collector to settle for less than 75% of monies owed: RD, D/PM
  • Section 130(5) Filing of an order from a reciprocating state in court: PC, MTFSU, MSPPA, MOF
  • Section 130(6) Recovery of costs in collecting order from reciprocating state: PC, MTFSU, MSPPA, MOF
  • Section 135(2) Director to collect amounts ordered by court regarding certain convictions: RD, PC, MTFSU, MSPPA, Section 135(3) Director may file court order for enforcement purposes: RD, PC, MTFSU, MSPPA, MOF
  • Section 137(5) Director to collect amounts ordered by court where a director, officer or agent of a corporation is guilty of offence of permitting offence: RD, PC, MTFSU, MSPPA
  • Section 137(6) Director must consent to prosecution of a director, officer or agency of a corporation for permitting corporation to commit an office: RD
  • O Reg 285/01, s. 32 Approve daily excess hours agreement at time of hire: Not delegated

Delegation of powers – Employment Protection for Foreign Nationals Act, 2009

The following lists the powers and duties of the Director of Employment Standards in the sequence that they appear in the Employment Protection for Foreign Nationals Act, 2009 ("EPFNA") and indicates to whom the powers or duties have been delegated.  Note that most of the powers and duties of the DES under the EPFNA are incorporated by reference to provisions in the ESA 2000, which appear in square brackets below where applicable.

Abbreviations used

  • DES – Director of Employment Standards
  • RD – Regional Director
  • D/PM – District or Program Manager
  • RPC – Regional Program Coordinator
  • ESO – Employment Standards Officer
  • PC – Provincial Coordinator
  • MTFSU – Manager, Trust Fund Services Unit
  • MSPPA – Manager, Strategic Planning & Program Administration Unit
  • MOF – Collector

Delegated powers

  • Section 6(2) Approval of notice of civil proceeding form: Not delegated
  • Sections 12(1) – (4) Prepare and publish documents regarding EPFNA and ESA 2000: Not delegated
  • Section 13(1) Authority to publish names of convicted offenders: Not delegated
  • Section 20(1) Approval of claim form: Not delegated
  • Section 23 Distribute monies received from an ESO, based on a settlement, to the employee: PC, MTFSU, MSPPA [ESA 2000 s. 112(5)]
  • Section 24(2) Pay out vested monies (fees) to an entitled person: Not delegated [ESA 2000 s. 105(3)]
  • Section 24(3) Pay out vested monies (costs) to an entitled person: Not delegated [ESA 2000 s. 105(3)]
  • Section 24(6) Contravention of a compliance order may be restrained upon an application to a judge: RD [ESA 2000 s. 108(5)]
  • Section 24(7) Requirement to pay amount ordered under director's order to pay issued as per s. 106 of ESA 2000 to the Director of Employment Standards in trust: RD, D/PM, ESO [ESA 2000 s. 106(6)]
  • Section 24(7) Requirement to pay amount ordered under director's order to pay issued as per s. 107 of ESA 2000 to the Director of Employment Standards in Trust: RD, D/PM, ESO [ESA 2000 s. 107(2)]
  • Section 24(8) Distribute money rateably: PC, MTFSU, MSPPA [ESA 2000 s. 109(2)]
  • Section 29(1) Accept an irrevocable letter of credit for review of an order to pay fees or an order to pay wages: PC, MTFSU, MSPPA [ESA 2000 s. 116(1)(b)]
  • Section 29(1) Accept an irrevocable letter of credit for review of a compensation order issued to a temporary help agency or a client of a temporary help agency under ESA 2000 s. 74.14 or a compensation order under ESA 2000 s. 104: PC, MTFSU, MSPPA [ESA 2000 s. 116 (1)(c)]
  • Section 29(6) Approval of a settlement of a compliance order through a labour relations officer: RD, PC [ESA 2000 s. 120(3)]
  • Section 29(6) Distribute monies in accordance with a settlement through a labour relations officer: PC, MTFSU, MSPPA [ESA 2000 s. 120(6)(a)]
  • Section 33(2) Establishment of polices regarding EPFNA : Not delegated [ESA 2000 s. 88(2)]
  • Section 33(2) Establishment of interest rate: Not delegated [ESA 2000 s. 88(5)]
  • Section 33(2) Use of surplus interest to pay financial institution charges: PC, MTFSU, MSPPA [ESA 2000 s. 88(8)]
  • Section 33(2) Termination and reassignment of investigation or inspection: RD (ESA 2000 ss. 88(1) and (3)]
  • Section 39 Direct Board to consider manner of service: PC, MSPPA [ESA 2000 s. 95(7)]
  • Section 40 Make a third party demand: RD, D/PM, RPC, ESO, MOF [ESA 2000 s. 125(1)]
  • Section 40 Accept security for amounts owing: Not delegated [ESA 2000 s.125.1]
  • Section 40 Issue a warrant, directed to the sheriff, to enforce payment of an order:  Not delegated [ESA 2000 s. 125.2]
  • Section 40 Register a lien and charge on real property: Not delegated [ESA 2000 s. 125.3(1)]
  • Section 40 Register a lien and charge on personal property: Not delegated [ESA 2000 s. 125.3(2)]
  • Section 40 Service of the notice of a third party demand: RD, D/PM, RPC, ESO, MOF [ESA 2000 s. 125(3)]
  • Section 40 Certify a copy of an order and file in court: RD, D/PM, RPC, ESO, MOF [ESA 2000 s. 126(1)]
  • Section 40 Service of a notice of the filing of an order in court: RD, D/PM, RPC, ESO, MOF [ESA 2000 s. 126(2)]
  • Section 40 Enforce an order filed in court as a judgment or order of the court: RD, D/PM, RPC, ESO, MOF [ESA 2000 s. 126 (3)]
  • Section 40 Apply ss. 126(1) – (3) with necessary modification to a notice of contravention: RD, D/PM, RPC, ESO, MOF [ESA 2000 s. 126(4)]
  • Section 40 Written consent to permit collector to pay directly to person entitled to wages, fees or compensation: PC, MTFSU, MSPPA [ESA 2000 s. 128(3(1)(ii)]
  • Section 40 Written approval of settlement by collector regarding notice of contravention: PC, MTSFU, MSPPA [ESA 2000 s. 129(1)(b)]
  • Section 40 Written approval of settlement by collector for less than 75% of amount entitled to by the person: RD, D/PM [ESA 2000 s. 129(2)]
  • Section 45(2) Director of Employment Standards to collect amounts ordered by court for certain contraventions: RD, PC, MTFSU, MSPPA
  • Section 45(3) Director of Employment Standards may file court order for enforcement purposes: RD, PC, MTFSU, MSPPA
  • Section 47(4) Director of Employment Standards to collect amounts ordered by court where a director, officer or agency of a corporation is guilty of offence of permitting offence: RD, PC, MTSFU, MSPPA
  • Section 47(5) Director of Employment Standards must consent to prosecution of director, officer or agent of a corporation for permitting corporation to commit an offence: RD

Exercise of discretion

The discussion of the various provisions under which the Director or their delegate has authority to exercise discretion frequently contains a list of factors that may be relevant when the discretion is being exercised, and may set out general principles that are usually followed. Please note that the lists are not intended to be exhaustive of all factors that may be relevant. Please also note that Program policy is that the Director (or delegate) will consider any submissions from a party as to why a listed factor should or should not be relevant, or why a general policy should or should not be departed from.