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Ontario Regulation 285/01 – When worked deemed to be performed, exemptions and special rules

This regulation sets out special rules for certain categories of employees and exemptions to Parts VII to XI which deal with hours of work and eating periods, overtime pay, minimum wage, public holidays and vacation with pay, respectively, and ESA Part XVII, s. 73 that deals with retail business establishments. The regulation also establishes the minimum wage rates for categories of employees and exemptions to those rates.

O Reg 526/17 amended the name of this regulation from “Exemptions, Special Rules and Establishment of Minimum Wage” to “When Work Deemed to Be Performed, Exemptions and Special Rules”, effective January 1, 2018.

Section 1 – Definitions

Construction employee, construction industry

The term “construction employee” is referred to in the exemptions from the hours of work, daily rest, and weekly and bi-weekly rest provisions set out in O Reg 285/01. The term construction employee is also referred to in those provisions setting out the exemptions from public holiday entitlements in O Reg 285/01, s. 9(2).  See also O Reg 288/01, s. 1 with respect to the construction employee exemptions from notice of termination and severance entitlements in that regulation. Note that although the definition of construction employee in O Reg 285/01 is cross-referenced in O Reg 288/01, employees who are engaged in the maintenance of roads and who are considered construction employees for the purposes of the hours of work exemptions in O Reg 285/01, are not considered construction employees for the purposes of O Reg 288/01. As a result, they are not exempt as construction employees from notice of termination under O Reg 288/01, s. 2(1) paragraph 9. However, they are specifically exempted from severance entitlements under O Reg 288/01, s. 9(1) paragraph 8.

The definition of construction employee includes employees engaged at the site in any of the activities described in the definition of construction industry (i.e., constructing, altering, decorating, repairing or demolishing buildings structures, roads, sewers, water or gas mains, pipe lines, tunnels, bridges, canals or other works) "At the site" simply refers to a place where employees are engaged in construction activities. For example, it would refer to a downtown lot where an office building is being constructed but would also refer to the yard of a manufacturing plant where employees were engaged in constructing storage sheds to store materials or products manufactured at the plant.

Note that despite the reference to “construction industry” within the definition of “construction employee”, the employee's employer does not have to be carrying out construction, alteration, etc., as its sole or even primary business; construction, alteration, etc. could be just a minor or incidental activity so far as the employer is concerned. As a result, the employees of an employer whose primary business is manufacturing would be construction employees if they were engaged in performing construction activities as described in the definition of construction industry at the manufacturing plant.

The definition also includes employees who work off-site (either in whole or in part), if the off-site employees are "commonly associated in work or collective bargaining" with employees who are employed at the site in any of the activities referred to in the construction industry definition (i.e., constructing, altering, decorating, repairing or demolishing buildings, structures, roads, sewers, water or gas mains, pipe lines, tunnels, bridges, canals or other works). Note again that the definition does not require an off-site employee's employer to be solely or primarily engaged in the construction business in order for the employee to be a construction employee; the critical issue is whether the employee is "commonly associated in work or collective bargaining" with employees employed at the site in any of the activities described in the definition of construction industry. See 1703171 Ontario Inc. o/a The Construction Group and Bath Solutions v Russo-Janzen, 2016 CanLII 8145 (ON LRB) for a discussion of what it means to be “commonly associated in work” with on-site construction employees.

The definition includes repair work but not maintenance work. Maintenance is distinguished from repair work in that maintenance involves the preserving of the functioning of a system, whereas repair involves restoration of a system to a functional state. However, the dividing line between maintenance and repair is not always clear, particularly since some maintenance activity may involve procedures that bear a close resemblance to repair (e.g., replacing worn or broken components). In determining whether an employee should be considered to be engaged in repair or in maintenance, one should look to the activity in which the employee spends the majority of their working hours. See: Stearns Catalytic Ltd. v Everingham (September 3, 1986), ESC 2166 (Kerr); Beaver Engineering Limited v Lightfoot and Woods (April 26, 1985), ESC 1840 (Franks); and Warren v Rexway Sheet Metal (January 10, 1995), ESC 95-06 (Palumbo).

However, it is the Program's position that the term construction employee in O Reg 285/01 does include employees engaged in the on-site maintenance of roads (e.g., snow ploughing and salting of roads). The rationale for this position is as follows:

  • The definition of construction employee covers on-site employees employed in any of the activities described in the definition of construction industry
  • The definition of construction industry includes the “constructing . . . of . . . roads”, which phrase we consider to be equivalent to road building
  • Road building is defined as including the maintenance of roads
  • Therefore, an employee engaged in the maintenance of roads falls under the definition of construction employee.

As a result, employees engaged in on-site road maintenance are:

  • Exempted from ESA Part VII, ss. 17, 18 and 19 by virtue of being a construction employee, and
  • Are subject to the special overtime threshold in O Reg 285/01, s. 13 by virtue of being a road building employee.

One question that has arisen concerns the definition of construction industry in the Employment Standards Act, 2000 as compared to the definition of construction in the Occupational Health and Safety Act, RSO 1990, c O.1 ("OHSA"). The definition of construction in the OHSA specifically excludes "any work or undertaking underground in a mine" and persons engaged in such work are therefore not considered construction workers for the purposes of the OHSA.

However, the ESA 2000 definition of the construction industry contains no similar exception. Therefore, an employee engaged in the construction of a mine, whether at the surface or underground, is a construction employee for the purposes of the ESA 2000. In this regard, see the Ontario Labour Relation Board's decision in Hollos v Cementation Canada Inc., 2007 CanLII 17545 (ON LRB). In that case, the employee was employed as a "development miner" performing work in the construction of mine shafts. He argued that because he worked primarily underground he was engaged in mining but the Board held that regardless of where it was being performed, the nature of the work was construction and accordingly, he was a construction employee.

The definitions of construction industry and construction employee are substantially the same in scope as the construction industry definition in s. 1(1) of the Labour Relations Act, 1995, SO 1995, c 1, Sch A ("LRA 1995")and the employee definition in the Construction Industry part of the LRA 1995.

Domestic worker

"domestic worker" means a person who is employed by a householder to perform services in the household or to provide care, supervision or personal assistance to children, senior or disabled members of the household, but does not include a sitter who provides care, supervision or personal assistance to children on an occasional, short-term basis;

The domestic worker definition is referred to in the special rules for domestic workers section in O Reg 285/01, s. 19. These special rules require the employer to provide the domestic worker with written particulars of employment, and sets out special rates for room and board.

Domestic workers are defined to include persons who are employed by the householder to perform services in the household (e.g., housekeeping or cleaning) as well as those providing care, supervision or personal assistance to children, senior or disabled members of the household. The definition makes no distinction between full-time, part-time, live-in or live-out workers. However, the definition specifically excludes babysitters who work on an occasional and short-term basis.

Employed by the householder

A domestic worker must be employed by the householder of the residence where they work. If the householder hired the worker through an agency, they are still a domestic worker if it is the householder who employs the worker and the householder was just using the agency as a "head-hunter". However, if the householder contracts with the agency for services and the employee is employed by that agency, or if the worker, although working in the residence is employed not by the householder but by some other employer, this definition will not apply (although the worker may be a homemaker in that case).

Perform services in the household

A domestic worker is defined to include persons employed by the householder who perform services in the household. This would include such functions as cleaning, dusting, vacuuming, laundry and the preparation of meals. A domestic worker is not a homeworker. See ESA Part I, s. 1(1) for the definition of homeworkers and ESA Part and O Reg 285/01, s. 12 for further information regarding the special rules that apply to homeworkers.

To provide, care supervision or personal assistance to children

An employee will fall under the definition of domestic worker if they provide care, supervision or personal assistance to a child of the householder. This would include a nanny who has received formal training in child care as well as a sitter who has had no formal training. Note, however, that a sitter who provides care on an occasional, short-term basis is not covered under the definition of domestic worker. For example, a teenager who occasionally babysits on weekend evenings for a neighbour would not fall under this definition.

To provide, care supervision or personal assistance to senior or disabled members of the household

To fall within this category of domestic worker, the employee would have to be providing care, assistance, supervision or protection to a person who, because of advanced age or physical or mental disability, cannot care for their own needs. The services could include household work related to the care of the person (for example, meal preparation, bed-making, etc.). In addition, the worker must be employed by the householder and be attending to the needs of a member of the employer's household. Thus, for example, the definition would not apply to someone employed to provide personal care to a resident in a nursing home, where the employer is the resident's adult son who does not live in the nursing home, even if the resident used to live in the son's household.

Election official

The definition of “election official” was added to section 1 of O Reg 285/01, effective March 9, 2018.  The definition of election official covers:

Note that each riding has a returning officer who is appointed by the Lieutenant Governor in Council for a ten-year term.

In order to fall under clause (b) of this definition, the following must be met:

  • The employee must be employed temporarily. 
  • The employee’s work must involve assisting in the administration of a general election or a by-election under the Election Act
  • The employee must be managed or supervised directly or indirectly by a returning officer. 

Note that the reference to indirect management or supervision means that the exemption can apply even if the returning officer is not the immediate manager or supervisor of the employee in question.

For example, a poll clerk who is supervised by a deputy returning officer, who in turn is supervised by a returning officer, would be “indirectly” supervised by a returning officer for the purposes of this definition.

In order to fall under clause (c) of this definition, the following must be met:

  • The employee must be an employee of the Chief Electoral Officer.
  • The Chief Electoral Officer is appointed by the Lieutenant Governor in Council under the Election Act.  The Chief Electoral Officer has overall responsibility for conducting Ontario provincial elections.  The Chief Electoral Officer employs permanent staff to work at the Office of the Chief Electoral Officer. 
  • The employee must be assigned on a temporary basis to provide support to returning officers in the administration of a general election or a by-election under the Election Act
  • The employee must provide this support within a region that has one or more, but not all, electoral districts.

In other words, if an employee provides support to all electoral districts, the employee would not meet the definition as set out in clause (c). 

Election officials defined in this section are referred to in O Reg 285/01, s. 4(1)(g).  During the period specified in section 4(1.1), these employees are exempt from s. 17, 18 & 19 of the ESA, which cover the hours of work, daily rest, and weekly and bi-weekly rest provisions of the Act.

Hotel, motel, tourist resort, restaurant and tavern

This definition is referred to in the public holiday exemption in O Reg 285/01, s. 9(1)(j) regarding seasonal workers in such establishments, i.e., those who work 16 weeks or less in a calendar year and who are provided with room and board. It is also referred to in O Reg 285/01, s. 14, which establishes special rules and exemptions for overtime pay for employees in such establishments who are employed for 24 weeks or less in a calendar year and who are provided with room and board.

Information technology professional

Information technology professionals ("IT professionals") as defined in this section are exempt from the hours of work provisions in ESA Part VII by O Reg 285/01, s. 4(3)(b) and overtime pay provisions in ESA Part VIII by O Reg 285/01, s. 8(1).

It is important to note that this definition does not include all people working in the information technology field.

The exemption is limited to professional employees who use specialized knowledge and professional judgement in their work. Webster's Third New International Dictionary defines "professional" as a person "engaged in one of the learned professions or in an occupation requiring a high level of training and proficiency" and "characterized by or conforming to technical or ethical standards of a profession or occupation". "Judgement" is defined as "the mental or intellectual process of forming an opinion or evaluation by discerning or comparing".

It is the Program's view that employment as an information technology professional would be characterized by the exercise of professional judgement requiring the application of specialized knowledge in accordance with technical standards. For example, this could include the assessment of the information systems needs of a client and the evaluation of risks and benefits associated with the various options in accordance with generally accepted principles in the computer and related technologies field. The Program would consider an employee who is responsible for the development of a company's software or the day-to-day maintenance of a company's software and hardware products to be an IT professional. On the other hand, an employee whose responsibility was to repair or "trouble-shoot" home computers sold by their employer would not be considered to be an IT professional.

In addition, a person using the hardware and software products developed and maintained by IT professionals would not themselves be considered IT professionals. For example, persons employed as computer animators would not likely be considered IT professionals as their work would involve using the systems and software created by IT professionals but would not involve developing or maintaining such systems or software. Note however that some computer animators may fall within the definition of employees in the recorded visual and audio-visual entertainment industry and consequently would be exempt from the hours of work and eating periods in the Act.

Although "related technologies" is not defined, the Program would not consider an employee who was responsible for the development or operation of "high tech" equipment such as TVs, DVDs or stereos to be an IT professional.

Formal educational attainment or the absence thereof is not determinative of whether the employee will be exempt. The Program will also recognize informal, on the job training and experience and training outside the traditional education sector.

In applying this definition, it is necessary to recognize that there will also be non-professional information technology staff, such administrative and support staff. These employees may perform routine tasks involving or pertaining to information technology, but they do not perform the more sophisticated tasks contemplated in the definition and will not be exempt. If a job description includes a large proportion of tasks that are not specific to the information technology field, it will not likely be exempt. Furthermore, the mere fact that an employee works for an information technology business does not mean that the exemption will apply. Conversely, an IT professional may be employed by an employer that produces cars, TVs or furniture.

Recorded visual and audio-visual entertainment production industry

The "recorded visual and audio-visual entertainment production industry" definition refers generally to the film and television industry. This definition is relevant to O Reg 285/01, s. 4, which exempts all employees in that industry from Part VII Hours of Work and Eating Periods, and O Reg 285/01, and O Reg 285/01, s. 9.1, which exempts employees in that industry from  ESA Part XII, s. 42.1.  Such employees include all employees of foreign and domestic companies that produce recorded visual and audio-visual entertainment in Ontario. This may include employees working as computer animators in the recorded visual and audio-visual industry.

The exemption generally does not apply to live performers in that industry as they typically do not fall within the definition of "employee" in ESA Part I, s. 1.

Residential care worker

The residential care workers as defined in O Reg 285/01 are subject to special rules and exemptions regarding hours of work, free time, overtime, minimum wage entitlement and records of hours as set out in O Reg 285/01, ss. 20 to 23.

The definition of residential care worker in O Reg 285/01 has a number of elements as follows:

Supervises and cares for children or develop-mentally handicapped persons

"Supervision" and "care" are broad terms and include all those activities involved in looking after children and developmentally handicapped adults: preparing meals, feeding, cleaning, organizing play activities, and so on. An employee may perform duties that are similar to a domestic worker, a superintendent, or a caretaker. However, if they perform those duties in a residential care facility and meets the other requirements of O Reg 285/01, this regulation will apply. See Marshall Children's Foundation v Grieve et al (November 8, 1976), ESC 378 (Aggarwal).

Children are generally considered by the Program to be persons under the age of 18 years. Previously, it was the Program's policy that developmentally handicapped persons were considered to be persons with a condition or handicap that was present or occurred before the age of 18 years, which was consistent with the Board's decision in Pacaldo v Dolega-Kamienski Estate, 2003 CanLII 35096 (ON LRB). In that decision, the Board referred to the Day Nurseries Act, RSO 1990, c D.2 (repealed) and the Developmental Services Act, RSO 1990, c D.11 (repealed), which defined the term "developmentally disabled" as "a condition of mental impairment present or occurring during the person's formative years . . .", and a definition from an authoritative medical dictionary which defined "developmental disability" as a "substantial handicap of indefinite duration with the onset before the age of 18 years, such as mental retardation, autism, cerebral palsy, epilepsy or other neuropathy", and concluded that "developmentally handicapped" has the same meaning as developmentally disabled. As a result, where a disability was related to such things as the aging process (e.g., Alzheimer's disease) or an accident, the Program did not consider the person to be developmentally disabled for the purposes of the residential care worker rules and exemptions in O Reg 285/01, ss. 20 to 23.

However, in Lorraine Fraser Viscount Residence et al. v Ontario Labour Relations Board et al., the Divisional Court overturned an Ontario Labour Relations Board decision that held that two applicant group homes which provided residential care for schizophrenic adults were not entitled to the residential care worker exemptions and special rules because there was no evidence before the Board that the residents of the group homes were diagnosed with schizophrenia before the age of 18. In reversing the Board's decision, the Court expressed concerns about the imposition of the "18 year old" test saying that while the Board had addressed the purpose of the ESA, it had failed to consider the purpose of the exclusion or exemption for residential care workers, which it said is to facilitate the operation of the homes, while at the same time protecting workers.

As a result, the Program has amended its operational policy to now consider a person to be developmentally disabled for the purposes of the residential care worker rules and exemptions in O Reg 285/01, ss. 20 to 23 if the person possesses a disability of indefinite duration, manifested in their formative years, that is characterized by significant limitations to cognitive and adaptive functioning. "Cognitive functioning" refers to a person's intellectual capacity, including the capacity to reason, organize, plan, make judgments and identify consequences. "Adaptive functioning" refers to a person's capacity to gain personal independence, based on the person's ability to learn and apply conceptual, social and practical skills in their everyday life.

Works in a family-type residential dwelling or cottage

Only work in a residential care facility that is designed to provide a home-like atmosphere is covered. Work in an institution, such as a hospital, is not covered.

Resides in the dwelling or cottage during work periods

Program policy is that the employee must be required by the employer to reside at the facility and must actually do so, that is, eat, sleep, and spend rest periods there. If the employer merely provides accommodation for the employees and it is their option whether or not to use them, the regulation does not apply. The regulation is meant to apply in those situations where it is essential that the worker remain at the facility virtually 24 hours per day.

"Work period" refers to the period between the time the employee enters the facility for the purpose of working and residing there through to the time when they leave. Residence need not be permanent in order for the regulation to apply. In other words, the employee may have accommodation elsewhere where they reside when not on a shift. For example, an employee may be scheduled to work a set number of days at the facility, until they are relieved, at which time they can leave and live elsewhere.

Road building

Employees who are engaged in "road building" are subject to special rules (different overtime thresholds) for overtime pay as set out in O Reg 285/01, s. 13.

Employees engaged in road building will also fall under the general definition of construction employees in O Reg 285/01, s. 1. As a result, such employees may also be exempt from the hours of work, daily rest and weekly and bi-weekly rest provisions and public holiday provisions of the Act. See the discussion of the definition of construction employee above for further information.

Seasonal employee

The seasonal employee definition is referenced in O Reg 285/01, s. 9(1)(j) and s. 15.

Section 9(1)(j) establishes an exemption from the public holiday provisions of the Act for seasonal employees of a hotel, motel, tourist resort, restaurant or tavern, who are provided with room and board.

Section 15 establishes special rules and exemptions for overtime pay for seasonal employees in fresh fruit and vegetable processing.

Taxi cab

This definition is referenced in O Reg 285/01, s. 8(j) and s. 9(1)(i), which exempt taxi cab drivers from overtime pay and public holiday pay.

In order for a vehicle to be a taxi cab, both elements of the definition must be met; it must seat no more than nine people (not counting the driver), and it must be used for the carriage for hire of people. Therefore, a car driven by a private chauffeur for one employer is not a taxi cab; nor is a bus that seats more than nine people plus the driver (even if it is often the case that nine or fewer people are actually riding in it).

Employers sometimes operate a mix of regular taxi cabs and larger vehicles that seat more than nine people. Employees who drive both types of vehicles will fall under this definition for the purposes of the overtime and public holiday exemptions, only if they spend the majority of their time driving vehicles that fall within the definition of taxi cab.

Wage rate

This definition applies with respect to the wage statement obligations in ESA Part V, s. 12. Under that section, an employer is required to provide, on the employee's pay day, a written statement setting out, among other things, the employee's wage rate.

The definition is inclusive but is intended to indicate what an employee's wage rate is if the employee is paid on a piecework basis. The definition provides that wage rate includes the piece rate or rates together with the number of pieces paid at each rate.

For example, in the case of fruit, vegetable or tobacco harvesters it may refer to the rate paid for each of bushel or pound of produce harvested by the employee and the number of bushels or pounds paid for.

In the case of homeworkers, the piece rate would be the rate paid for a specified number of articles or things manufactured. "Manufacture" is defined in O Reg 285/01, s. 12(3) to include preparation, improvement, repair, alteration, assembly or completion. See O Reg 285/01, s. 12 for information regarding special rules for homeworkers.

Wilderness guide

but does not include,

This definition was added to s. 1 of O.Reg. 285/01 effective June 3, 2019.

This definition is referenced in O. Reg. 285/01, s. (4)(1)(c), s. 6, s. 8(c), and s. 9(1)(b). These provisions:

  • exempt wilderness guides from the daily and weekly hours of work limits, the daily, in between shifts and weekly/biweekly rest periods, and the overtime pay and public holidays standards, and
  • establish a special minimum wage for wilderness guides: $70.00 for less than five consecutive hours of work in a day, and $140.00 for five or more hours in a day, whether or not the hours are consecutive.

This definition is also referenced in O. Reg. 285/01, s. 4.1(a) - (c) and s. 7(a) - (c) to clarify which set of exemptions/special rules applies when someone is both a wilderness guide and a student employed in camps for children/charitable recreational programs. See the discussion under those sections for details.

“A person who is employed to guide, teach or assist”

A wilderness guide is a person employed to guide, teach or assist one or more persons while those persons are engaged in activities in a wilderness environment.

Whether the wilderness guide definition applies to an employee is determined by what the employee was employed to do. This means that the definition will apply to an employee who is employed to guide, teach or assist people when they are engaged in activities in a wilderness environment, even if some of the employee’s time is spent performing tasks that are not guiding, teaching, or assisting, and even if some of the employee’s time is spent performing tasks outside of the wilderness environment. For instance, the duties of wilderness guides may also include preparatory work for expeditions, such as terrain research or equipment testing.

For example, a 20-year-old employee who is employed to teach the business’s clients rock-climbing in a wilderness environment may spend time – sometimes a significant amount of time – checking, preparing and packing the equipment before the clients arrive. Because this employee is employed to teach people rock-climbing in a wilderness environment, the wilderness guide definition will apply to that employee, and the wilderness guide exemptions and special minimum wage rate will apply to that employee, even during the time the employee dealt with the equipment prior to the clients’ arrival.

As another example, a 25-year-old employee who is employed to guide people on their canoe trip in a wilderness environment may spend time – sometimes a significant amount of time – travelling with the clients in a non-wilderness environment to the site where the canoeing will begin. Because this employee is employed to guide people while they are engaged in canoeing in a wilderness environment, the wilderness guide definition will apply to that employee, and the wilderness guide exemptions and special minimum wage rate will apply to that employee, including during the time the employee travels to the wilderness environment.

The two examples above are to be distinguished from a situation where an employee may have two (or more) distinct roles with an employer at different times of the year, only one of which is to guide, teach or assist people who are engaged in activities in a wilderness environment. For example, an employee may be engaged in sales and marketing for seven months of the year and in guiding for five months of the year. If the criteria for the wilderness guide definition are met during the five months the employee is engaged to guide, the employee will be considered to be a wilderness guide for those five months and will be subject to the wilderness guide exemptions and special minimum wage rate for those five months.

There is no minimum amount of time an employee must be in the wilderness environment for the definition to apply. For example, if a 20-year-old employee is employed to assist the employer’s clients while the clients are rafting in a wilderness environment, the employee will be considered to be a wilderness guide – and subject to the wilderness guide exemptions and special minimum wage rate – even if the employee is able to return home every evening because the rafting trips are only of a few hours’ duration and the employee lives nearby.

Activities

The wilderness guide definition contains a list of activities in a wilderness environment that may bring an employee within the scope of the wilderness guide definition. The list of activities is not exhaustive.

Accordingly, the wilderness guide definition may apply to employees who are employed to guide, teach or assist people while they are engaged in other activities in a wilderness environment (i.e. activities that are not listed in clauses (a) through (i)). To be considered an activity to which the wilderness guide definition may apply, however, the unlisted activity must be the same type of activities to the ones that are listed. For example, the Program does not consider paintballing or tree planting to be activities captured by the wilderness guide definition even if they take place in a wilderness setting because the nature of these activities is not the same as the nature of the items that are listed.

The definition does not require that the people who are engaging in the activity be doing it for any particular purpose or reason in order for the wilderness guide definition to apply. For example, the definition can apply whether the people are engaging in the activity in a wilderness environment for recreation (e.g. a group of friends go on a back-country skiing trip for pleasure), for personal development (e.g. an individual learning a new skill in a new environment), for academic purposes (e.g. university students go on a wildlife viewing trip for their studies), or for therapy or treatment purposes (e.g. a group of teenagers who have had conflicts with the law go on a survival training trip for rehabilitative reasons).

The activity or activities must take place in a wilderness environment. What is a wilderness environment will depend on the facts in each situation and will be determined on a case-by-case basis.

Exclusions: Hunting or Fishing Guides and Certain Students Under 18

The wilderness guide definition explicitly excludes hunting and fishing guides, and students under 18 years of age who work 28 hours each week or less during school or who are employed during a school holiday. Accordingly, these employees will not be covered by the wilderness guide exemptions and special minimum wage rule even if they are employed to guide, teach or assist people while they are engaged in activities in a wilderness environment. For example, a 17-year-old student on school holiday employed at a camp for children to guide and assist campers on multi-day hiking trips would be excluded from the wilderness guides definition.

Section 1.1 — When work deemed to be performed

When work deemed to be performed — s. 1.1(1)

Section 1.1(1), which deems work to be performed in certain circumstances, is subject to s. 1.1(2), which sets out circumstances where work will not be deemed to be performed. As a consequence, in the circumstances set out in s. 1.1(2), work will not be deemed to be performed even though it would otherwise be deemed to have been performed under s. 1.1(1).

The fact that O. Reg. 285/01, s. 1.1(1) deems work to be performed in specified circumstances means that the deemed working time must be taken into account in determining compliance with the statutory requirements, such as the hours of work, minimum wage and overtime pay standards*. How the employee is paid for that time however, is a separate issue. Under the ESA, it is possible for an employee to be paid different rates for different types of work, including receiving no financial compensation or a rate that is lower than the hourly minimum wage rate for some types of work (so long as the minimum wage requirements, which are based on a pay period basis, are met). See “Payment for Time Worked” at the end of the discussion on s. 1.1 for details.

Work permitted or suffered to be done

Section 1.1(1)(a)(i) provides that an employee is considered to have performed work if the employer allowed the employee to perform work. In other words, it is not necessary that the employer have asked or authorized the employee to do the work; the employee will be considered to have performed the work if the employer was aware that the employee was working or could have anticipated that they might be working but failed to take steps to prevent it. In M. Alzner Contractors Ltd. v Standard (December 16, 1985), ESC 2015 (Brown), the referee found that the employer had "permitted or suffered" work to be done by the employee because the employer knew that the employee was present on the job site, but did not ask him to leave or instruct him not to engage in any work on behalf of the employer. Similarly, employees who perform work prior to the start of their scheduled shift (e.g. because the employee regularly arrives at the workplace early) or after the end of the scheduled shift (e.g. because the employee is finishing up with a customer) will be considered to be performing work during that time so long as the employer was aware or could have anticipated that the employee might be working and didn’t take steps to prevent it.

Work in fact performed even if forbidden / not authorized by contract

Section 1.1(1)(a)(ii) is, in effect, an elaboration of s. 1.1(1)(a)(i). It provides that work is deemed to be performed if it is in fact performed, even though the employment contract prohibited the performance of the work or the employee failed to obtain the employer’s approval despite the fact that the contract required such approval. For example, work was deemed to be performed where the employee"s actual hours of work exceeded those for which the employee was scheduled - see Weiche-Huttenkofer Corporation Limited v Masschelein (August 25, 1980), ESC 872 (Gorsky); and where the employee performed work that was not authorized in advance as required by the employer - see 469754 Ontario Limited o/a Rumors Restaurant & Tavern v Lalonde (October 16, 1982), ESC 1305 (Betcherman). The fact that the work performed by the employee was unnecessary (i.e., it was not required to be done) does not render s. 1.1(1) inapplicable - see Keyes Supply Company Limited o/a Amalgamated Iron & Metal Co. v Cabral (February 15, 1979) ESC 582 (Picher); nor does the fact that the work was unsatisfactory - see The Living Institute v Roberts (March 6, 1978), ESC 489 (Haladner) and Elgin Lumber & Packaging Corp. Ltd. v Tait et al (June 19, 1978) ESC 524 (Brent).

Not performing work but required to remain at place of employment

i. Section 1.1(1)(b)(i) provides that work is deemed to be performed where an employee is not in fact performing work but is required to be at the place of employment waiting to be called to work.

Where the employee is holding themselves ready for work but not at the place of employment, work is not deemed to be performed. See 379480 Ontario Ltd. c.o.b.a. Arlington Public House and Restaurant v Kish (November 26, 1981), ESC 1107 (Davis) and the discussion in s. 1.1(2) below.

ii. Section 1.1(1)(b)(ii) provides that work is deemed to be performed where an employee is not in fact performing work but is required to be at the place of employment while on a break or rest period other than an eating period. See Cardelli and Cardarelli o/a Dina's Beauty Salon v Grey (March 6, 1978), ESC 488 (Springate) where the employee was at his place of work, ready for a call to work, but not actively working.

If the employee is allowed to leave or is required to leave the place of employment during a break, work will not be deemed to be performed - see Cancoil Thermal Corporation v Hawkins (April 13, 1999), 4529-97-ES (ON LRB).

There may be situations where some employees are deemed to have performed work during their breaks while others are not, for example, at workplaces where employers require employees who wish to smoke on their breaks to leave the place of employment, while requiring non-smoking employees to stay. Neither the ESA 2000 nor the regulations prohibit that kind of situation. Generally speaking, "place of employment" for the purposes of O Reg 285/01, s. 1.1(1) may encompass both the building and the land, including the parking lot, owned by the employer, but would exclude public sidewalks and roads.

Scenarios where the issue as to whether work is being performed may arise

The question as to when time constitutes “work” for the purposes of the ESA often arises. The Program’s policy for some scenarios in which this question has arisen is set out below.

i. Travel time

It is Program policy that any time a person spends traveling (irrespective of the mode of transportation) for the purpose of getting to or from some-where where work will be or was performed, with the exception of commuting time, counts as working time.

Commuting time for an employee who has a usual workplace means the time required for the employee to travel to their usual workplace from home and vice versa.

In situations where an employee does have a usual workplace but is required to travel to a location other than the usual workplace to perform work, all time spent travelling to and from that location is considered working time rather than commuting time. For example, if an employee who usually works in City A is required to travel to City B for work, all time spent getting either from home or the workplace in City A (depending on whether the employee was beginning their journey from home or the workplace) to the destination in City B will count as working time. (In the case where the employee travels by air, for example, the time spent getting to the airport, waiting to get on the plane, time on the plane and time spent getting to the destination in City B after the plane lands all counts as working time.)

In situations where an employee does not have a usual workplace, commuting time is generally considered to be the time it takes the employee to get from their residence to the first work location and the time it takes for the employee to get home from their last work location. For example, if an employee works for a housecleaning service, time spent travelling from their home to the first residence they are scheduled to clean is considered to be commuting time as will the trip home from the last residence. However, time spent travelling during the work day to go from residence to residence would be considered working time rather than commuting time. If the employee is required to attend at the employer’s shop at the start of the shift in order to pick up supplies and at the end of the shift to drop off the supplies and do paperwork, the time spent travelling from the shop to the first house and from the last house to the shop is considered working time. See, for example, Hopkins v 1719453 Ontario Inc. (Clean Team), 2012 CanLII 25680 (ON LRB).

As noted, commuting time is not counted as working time. However, there are exceptions to this rule:

  • If the employee takes a work vehicle home in the evening for the convenience of the employer, the hours of work begin when the employee leaves home in the morning and end when they arrive home in the evening.
  • If the employee is required to pick up other staff or supplies on the way from home to work, or to drop off other staff or supplies on the way from work to home, all the time spent from home to work and vice versa must be treated as working time.

ii. Training time

It is Program policy that time spent in training that is required by the employer or by law as a condition of employment or continued employment will be considered working time.

Training that is taken at the option of the employee, i.e., training that is not required by the employer as a condition of employment or continued employment or that is not otherwise necessary for the performance of the employee’s job would not be considered working time. This includes training that is required to meet the qualifications for a new position with the current employer (e.g., a course and certificate in project management as a condition for promotion to manager).

iii. Time spent at the workplace prior to/after scheduled shift & punching in and out

Employees are often required for practical reasons to be at their workplace and/or to perform work functions in advance of their scheduled shift start time in order to ensure they are ready at their workstation (be in the right place such as, for example, a desk, in front of a cash station, on an assembly line, etc.) to start their shift on time. Some situations that would require an employee to arrive at the workplace in advance of his or her scheduled shift include:

  • putting on a required uniform or personal protective equipment when that can be done only on the work premises either because that is where the employer requires the uniform/equipment to be kept or because it would not be practical for the employee to wear the uniform/equipment during the commute from home to work)
  • counting the cash in a till prior to replacing another colleague at the register
  • lining up at the punch clock where there is often a wait

The Program considers that where it is necessary for the employee to spend time or to perform functions in the workplace in order to start a shift on time, that time is considered working time.

The same policy applies with respect to time spent performing functions after the end of a shift. For example, time after the end of the scheduled shift that an employee spends counting the cash in the till or waiting in line to punch out at the time clock is considered working time.

iv. Employer/contract deems employees not to have worked

A related issue arises when employers deem employees to have worked less time than they in fact did for purposes of calculating employees’ wages.

For example, some employers may, under the terms of the employment contract, pay an employee who punches in more than 5 minutes but fewer than 15 minutes late wages only for 45 minutes for that hour. This method of calculating an employee’s wages is not prohibited under the Act. (Although note that depending on the employee’s wage rate, there may be an issue with minimum wage compliance — see the discussion udner “Deductions, s. 13(1)”.)

However, compliance with the hours of work provisions is determined on the basis of time worked (whether actually worked or deemed to have been worked under this section of the regulation), not on the provisions of the contract that might, in some circumstances, deem the employee to have worked less time than he or she in fact did.

Payment for time worked

Once it is determined that time is considered working time, the next issue is whether the employee is entitled to be paid for that work, and if so, at what rate. The question to be answered is what pay, if any, was payable under the contract in respect of the work.

The ESA does not prohibit employers from entering into contracts with employees to pay them different rates for different types of work, including paying some types of work at a rate that is lower than the hourly minimum wage rate — including no payment at all — so long as the minimum wage requirements, which are based on a pay period basis, are met.

For example, a contract may provide that the time an employee spends lining up to punch in and out will not be compensated, even though that time is considered to be work. Or, it may provide that the time an employee spends donning and doffing personal protective equipment at the workplace will not be compensated even though that time is considered to be work. Similarly, a contract may provide that travel time will be compensated at 50% of the employee’s regular rate. These types of contractual terms are not prohibited under the ESA, so long as the minimum wage requirements — compliance with which are determined on a pay period basis, not an hourly basis — are satisfied.

The contractual terms regarding payment may be explicitly set out in a written contract, but in many cases they won’t be and officers will rely on other evidence, including the individual employee’s understanding, to determine what the parties’ agreement — explicit or implied — was with respect to payment.

Same – s. 1.1(2)

Section 1.1(1), which deems work to be performed (e.g., where work was permitted or suffered to be done or the employee was on-call at their place of work), is subject to s. 1.1(2). As a consequence, in the circumstances set out in s. 1.1(2), work will not be deemed to be performed, even though it would otherwise be found that work had been performed pursuant to s. 1.1(1).

An example of the joint effect of ss. 1.1(1) and (2) occurs where a live-in employee is required to remain on the premises of an employer operating a remote location hunting or fishing camp. If the employee is called to do work from time to time as the need arises, without any defined period(s) of time off, they will be deemed, pursuant to s. 1.1(1)(b)(i), to be working during all hours. This, however, is subject to s. 1.1(2), which states that work is not deemed performed during the time an employee is entitled to take time off for eating, sleeping or private pursuits. In order to apply s. 1.1(2), the employer must demonstrate that the employee was in fact entitled to take such time off.

Meal breaks

Section 1.1(2)(a)(i) establishes that where the employee is entitled to take time off for a meal break, that time will not be deemed to be work time.

Note that while an employee may ostensibly have an entitlement to take time off, there may be no entitlement in fact. For example, if the employer advises an employee that they have an eating period at, say, noon, each day but then makes it impossible for the employee to take the break, s. 1.1(2) would not apply. As a result, the meal break would not be deemed non-work time. (In such a case, there may also be a violation of the ESA Part VII, ss. 20 and 21 requirement to provide the employee with a meal break.)

For example, if the employer provides a meal break from 1:00 to 1:30 p.m. but advises the employee at 1:00 p.m. that 50 widgets must be made by 1:30 p.m., the employer has effectively denied the entitlement to the meal break. No entitlement means that s. 1.1(2) does not apply and the officer will find that work was performed. Note that if the employee decided on their own initiative to make another 50 widgets between 1:00 and 1:30 p.m., that time would not count as hours of work. The employee was entitled to take the meal break and, therefore, work is deemed not to be performed during that period.

The Program takes the position that an employee may be required to take an ESA Part VII, s. 20 meal break in a designated place (e.g., on the employer's premises) and to be on call while on that break. If an eating period is not provided in compliance with ESA Part VII, s. 20(1) or (2), because the employee was on call and the meal break was interrupted, the employee is considered not to have had a meal break for the purposes of s. 20. As a result, s. 1.1(2) will not apply and the officer will find that work was performed as per s. 1.1(1)(b).

For example, an employer provides a 30-minute eating period for an employee and requires the employee to take his/her eating period in a designated place on the employer's premises and to be on call. The employee is only able to complete 20 minutes of the 30-minute eating period before getting called back to work. Because the employee was not able to have an uninterrupted 30-minute eating period, a s. 20(1) eating period is considered not to have been provided, and a new uninterrupted 30-minute period must be given. Further, because a s. 20(1) eating period has not been provided, the 20 minutes taken would not be considered an eating period and the "work deemed not to be performed" provision of s. 1.1(2)(a)(i) would not apply. The 20 minutes would be deemed to be work performed under s. 1.1(1)(b).

Similarly, the above would also apply to situations under s. 20(2) where the eating period is split into two periods of time that total 30 minutes within a five hour period. For example, an employer and employee have agreed that the employee will receive two 15-minute eating periods within a five hour period of work. The two 15-minute periods are not scheduled and the employer requires the employee to take the eating period on the employer's premises and to be on call while on break. The employee is able to take the first 15-minute eating period without an interruption. However, 10 minutes into the second 15-minute eating period, the employee is called back to work. Because the second 15-minute eating period was not completed, s. 20(2) has not yet been complied with. Another 15-minute eating period must be provided in order to achieve compliance with s. 20(2). Should the employee not be able to complete the second 15-minute eating period within a 5-hour period of work, then there would not be compliance with s. 20(2). All of the break time taken, including the first 15-minute break would not be considered an eating period per s. 1.1(2)(a)(i) and would be deemed to be work per s. 1.1(1)(b).

Sleeping periods

Section 1.1(2)(a)(ii) establishes that a sleeping period of at least six hours where sleeping facilities are provided by the employer will not be deemed to be work time so long as the employee is entitled to the time off. The employee must be entitled to uninterrupted sleep for at least six hours and entitled to refuse work during the period designated as a sleep period in order for the sleeping period to be deemed non-working time. If the employee does not have the right to refuse work during the sleeping period, the entire sleeping period is included in hours of work, whether or not the employee is actually called on to work - see Stark v Kerry's Place (Autism Services) (June 16, 1999), 3048-97-ES (ON LRB).

Time off for personal matters

Section 1.1(2)(a)(iii) establishes that when an employee is given time off to engage in private affairs or pursuits, the employee will not be considered to be working. For this provision to apply, it must be clear that the employee was entitled to take the time off and was not simply on-call, waiting to be assigned or put to work.

On call to work

Section 1.1(2)(b) establishes that on call employees are not considered to be working if they are not at their place of employment while waiting to be called in to work - see 379480 Ontario Ltd. c.o.b.a. Arlington Public House and Restaurant v Kish. For a discussion of what is meant by on call see ESA Part VII, s. 18(2).

Section 2 – Exemptions from Parts VII to XI of Act

Exemptions from Parts VII to XI of the Act – s. 2(1)

Exempted professionals – s. 2(1)(a) and (b)

The professionals listed above are exempt from the Hours of Work and Eating Periods (Part VII), Three Hour Rule (Part VII.1), Overtime Pay (Part VIII), Minimum Wage (Part IX), Public Holidays (Part X) and Vacation with Pay (Part XI) provisions of the Employment Standards Act, 2000.

In order for the exemption to apply, two conditions must be met. For the professionals listed in s. 2(1)(a), the employee must be "duly qualified" and must be a "practitioner" of the profession.

For the professionals listed in s. 2(1)(b) the employee must be "duly registered" and must be a "practitioner" of the profession.

Duly qualified

The employees listed in s. 2(1)(a) must be entitled to practice the profession under the following legislation:

ProfessionLegislation
ArchitectureArchitects Act, R.S.O. 1990, c. A.26
LawLaw Society Act, R.S.O. 1990, c. L.8
Professional EngineeringProfessional Engineers Act, R.S.O. 1990, c. P.28
Public AccountingPublic Accounting Act, 2004, S.O 2004, c. 8
SurveyingSurveyors Act, R.S.O. 1990, c. S.29
Veterinary ScienceVeterinarians Act, R.S.O. 1990, c. V.3
Duly registered

The employees listed in s. 2(1)(b) must be duly registered under the following legislation:

ProfessionLegislation
ChiropodyChiropody Act, 1991, S.O 1991, c. 20
ChiropracticChiropractic Act, 1991, S.O 1991, c. 21
DentistryDentistry Act, 1991, S.O 1991, c. 24
Massage TherapyMassage Therapy Act, 1991, S.O 1991, c. 27
MedicineMedicine Act, 1991, S.O 1991, c. 30
OptometryOptometry Act, 1991, S.O 1991, c. 35
PharmacyPharmacy Act, 1991, S.O 1991, c. 36
PhysiotherapyPhysiotherapy Act, 1991, S.O 1991, c. 37
PsychologyPsychology Act, 1991, S.O 1991, c. 38
Duly qualified/registered

The practitioner in a profession described in s. 2(1)(a) or s. 2(1)(b) must be duly qualified or registered under the legislation referred to above.

For example, "duly qualified practitioner of . . . law" means an individual who is licensed by the Law Society of Ontario to practice law. Paralegals are not covered by this exemption, because although they are governed by the Law Society Act and Law Society of Ontario, they are licensed only to "provide legal services", not to "practice law".

A duly qualified practitioner of architecture includes an architect, intern architect and a student architect licensed to practice architecture by the Ontario Association of Architects ("OAA") under the Architects Act. It may also include persons designated as Licensed Technologists if they are issued a restricted or limited certificate of practice by the OAA.

Note that a midwife is not considered to be a practitioner of medicine as the practice of midwifery is governed by the Midwifery Act, 1991, SO 1991, c 31 and not the Medicine Act, 1991.

Duly qualified practitioner with license to practice public accounting — s. 2(1)(a)(iv)

A duly qualified practitioner of public accounting refers to a person who is a practitioner of and who is qualified to practice public accounting under the Public Accounting Act, 2004 ("PAA"). This means that the employee either:

  • Has a license to practice public accounting under the Public Accounting Act, 2004 ("PAA"); or
  • Is exempt from the licensing requirement under the PAA.

The Public Accountants Council for the Province of Ontario (the Council) is the corporate body that oversees the regulation of public accounting in Ontario. The Public Accountants Council may authorize other organizations (called "designated bodies") to license and govern the activities of their members as public accountants. In order to become an "authorized designated body", the designated body must meet certain standards set by the Public Accountants Council.

The Public Accountants Council had previously authorized the following "designated bodies" to issue licenses to its members to practice public accounting in Ontario:

  • Institute of Chartered Accountants of Ontario
  • Certified General Accountants Association of Ontario (as of June 2010)
  • Certified Management Accountants of Ontario (as of January 2012)

As a result, individuals licensed to practice public accounting under the PAA may include members of the Institute of Chartered Accountants Association of Ontario, members of the Certified General Accountants of Ontario, and members of the Certified Management Accountants of Ontario.

In 2014, the three designated bodies amalgamated into the Chartered Professional Accountants of Ontario (CPA Ontario) in 2014.

Effective May 17, 2017, this amalgamation was recognized in the Chartered Professional Accountants of Ontario Act, 2017 (CPA Act). CPA Ontario is now the sole “designated body” under the Public Accounting Act, 2004 authorized to license its members to practice public accounting in Ontario and govern the activities of its members as public accountants.

Concurrent with the coming into force of the CPA Act, the enabling statutes for the predecessor designated bodies (Certified General Accountants Act, 2010, Certified Management Accountants Act, 2010 and the Chartered Accountants Act, 2010) were repealed. However, all members of the former three designated bodies carry a CPA Ontario designation in conjunction with their legacy designation until November 1, 2022.

Duly qualified practitioner of public accounting exempted from licensing requirements — s. 2(1)(a)(iv)

A person may also be duly qualified to practice public accounting under the PAA even though he or she is not required to hold a license if she or he provides public accounting services exclusively in respect of:

  • Any public authority or any commission, committee or emanation of a public authority, including a Crown corporation;
  • Any bank, loan or trust company;
  • Any transportation company incorporated by an Act of the Parliament of Canada; or
  • Any other publicly-owned or publicly-controlled public utility organization.

Therefore, an employee who provides public accounting services exclusively for one of the above-listed organizations, may be considered duly qualified in the practice of public accounting even if he or she has not been issued a license in public accounting.

Practitioner

An employee in a profession described in s. 2(1)(a) or s. 2(1)(b) above must actually be practising the profession in order for the exemption to apply. For example, a store clerk who is a member of the Law Society of Upper Canada Ontario is duly qualified; however as she is not practising law, the exemption will not apply.

With respect to what is meant by the "practice" of public accounting, the Public Accountants Council for the Province of Ontario defines public accounting as: the business of expressing independent assurance and certain other services in respect of financial statements and other financial information of enterprises where it can reasonably be expected that the services will be relied upon or used by a third party.

For clarity, a person is not practising public accounting if he or she is engaging solely in bookkeeping, cost accounting, or the installation of bookkeeping or business systems. Likewise, the preparation of financial statements solely as part of tax returns without provision of an opinion independent of the taxpayer in respect of the financial statements, is not considered practising public accounting.

Duly registered practitioner under the Naturopathy Act, 2007  – s. 2(1)(c)

This clause was amended effective January 1, 2019 to replace the reference to the (repealed) Drugless Practitioners Act (DPA) with a reference to the Naturopathy Act, 2007. (At the time of the repeal the only remaining class of drugless practitioners under the DPA were the drugless therapists/naturopaths.)

A duly registered naturopathic practitioner is exempt from the Hours of Work and Eating Periods (Part VII), Three Hour Rule (Part VII.1), Overtime Pay (Part VIII), Minimum Wage (Part IX), Public Holidays (Part X), and Vacation with Pay (Part XI) provisions of the Act.

In order for the exemption to apply, the employee must be duly registered under the Naturopathy Act, 2007, R.S.O. 1990, c. D.18 ("DPA") and be practising the profession of naturopathy. The Naturopathy Act, 2007 (s. 3) defines the practice of naturopathy as follows:

“The practice of naturopathy is the assessment of diseases, disorders and dysfunctions and the naturopathic diagnosis and treatment of diseases, disorders and dysfunctions using naturopathic techniques to promote, maintain or restore health.”

All persons who were registered to practice under the Drugless Practitioners Act by the Board of Directors of Drugless Therapy immediately before July 1, 2015 were deemed to be holders of a certificate of registration issued under the Naturopathy Act, 2007.

Teacher as defined in the Teaching Profession Act – s. 2(1)(d)

Certain teachers are exempt from the Hours of Work and Eating Periods (Part VII), Three Hour Rule (Part VII.1), Overtime Pay (Part VIII), Minimum Wage (Part IX), Public Holidays (Part X), and Vacation with Pay (Part XI) provisions of the Act.

"Teacher" is defined in the Teaching Profession Act, RSO 1990, c T.2 ("TPA"):

A person may be employed to teach, but that in itself does not mean that the person falls within the exemption. In the first place, as the definition indicates, the term "teacher" does not include supervisory officers (e.g., directors of education), principals and vice-principals, or instructors in a teacher-training institution.

Secondly, some teachers are not employed by a board as that term is used in the definition. While the term "board" is not defined in O Reg 285/01 or the TPA, the Education Act, R.S.O. 1990, c. E.2., defines it as a "district school board or school authority". Based on the principle of statutory interpretation that holds that words and expressions used in different statutes dealing with the same subject matter should be interpreted consistently and on the fact that the TPA, the Education Act and s. 2(1)(d) of O Reg 285/01 all deal with the teachers, it is the Program's position that the word "board" as it appears in the exemption should be construed as a district school board or school authority (as opposed to, say, a board of directors or board of governors).

It follows that teachers who are not employed by a district school board or school authority, such as teachers in a private school or a college or university, do not fall within the exemption. See, for example, Guru Tegh Bahadur International School Inc. v. Director of Employment Standards, 2019 CanLII 22126 (ON LRB). (Note that teachers in these institutions are not required by legislation to be members of the Ontario College of Teachers, and if they are not they would be outside the scope of the exemption on that ground as well.)

Student in training for an occupation mentioned in clause (a),(b),(c) or (d) – s. 2(1)(e)

Students in training to be one of the professionals listed in clause (a) or (b), a naturopathic practitioner as mentioned in clause (c), or a teacher as defined in clause (d) are exempt from the Hours of Work and Eating Periods (Part VII), Three Hour Rule (Part VII.1), Overtime Pay (Part VIII), Minimum Wage (Part IX), Public Holidays (Part X), and Vacation with Pay (Part XI) provisions of the Act.

Most of these professions and callings have some type of work experience or apprenticeship requirement that must be completed before a person can qualify to practise the profession. This work experience requirement is often mandated by the authorizing statute. It is only while a student is engaged in obtaining work experience as per the statute that he or she is exempted from the above standards. For example, the Professional Engineers Act requires applicants for a license as a duly qualified practitioner of professional engineering to have certain educational qualifications and 48 months of experience in the practice of engineering. After completing the 48 months of work experience, the Council of the Association of Professional Engineers of Ontario reviews the experience to determine whether it is sufficient to allow the student to meet the generally accepted standards of practical skill required to engage in the practice of professional engineering. Some students in training enroll in the Engineering Intern Training ("EIT") Program. This Program, which is administered by the Professional Engineers of Ontario, provides the student with an annual review of his or her engineering experience (as well as a subscription to certain professional publications). For the purposes of the ESA 2000, a student-in-training would include a student in the EIT Program but would also include a student who is not in the Program but is currently engaged in obtaining the 48 months of experience required under the Professional Engineers Act.

If the student is merely studying the subject area of the profession at university or college, the exemption will not apply to any employment he or she undertakes while studying. For example, a person may be studying dentistry while employed by the operator of a restaurant part-time as a waiter; the exemption will not apply to exempt the restaurant operator from the obligation to comply with the above standards.

Commercial fishing – s. 2(1)(f)

Employees engaged in commercial fishing and who fall under provincial jurisdiction will be exempt from the Hours of Work and Eating Periods (Part VII), Three Hour Rule (Part VII.1), Overtime Pay (Part VIII), Minimum Wage (Part IX), Public Holidays (Part X) and Vacation with Pay (Part XI) provisions of the Act. Please refer to ESA Part III, s. 3(2) for further information. Note, however, that this exemption has not been held to apply to "in plant" employees on the basis that employees engaged in preparing and distributing the fish for market were not engaged in commercial fishing - see Kingsville Fishermen's Company Limited v Ontario Ministry of Labour (April 8, 1988), ESC 2324 (Springate).

Salesperson or broker, as defined in the Real Estate and Business Brokers Act, 2002 – s. 2(1)(g)

A registered salesperson of a real estate broker is exempt from the Hours of Work and Eating Periods (Part VII), Three Hour Rule (Part VII.1), Overtime Pay (Part VIII), Minimum Wage (Part IX), Public Holidays (Part X), and Vacation with Pay (Part XI) provisions of the Act.

This exemption was amended effective March 31, 2006 by O Reg 92/06 to reflect the repeal and replacement of the Real Estate Business and Brokers Act, RSO 1990, c R.4 with the Real Estate Business and Brokers Act, 2002, SO 2002, c 30, Sch C which came into force on that date.

In order for the exemption to apply, the salesperson must be registered as a broker under the Real Estate and Business Brokers Act, 2002 and be employed by a brokerage to trade in real estate. He or she must actually be employed as a salesperson. Other types of employees, even if they also happen to be registered as salespersons, would not be exempted, for example, a secretary or an office manager - see Luft and Beaudry Inc. and Broom and Associates Realty Inc. v Bradshaw (September 6, 1991), ESC 2901 (Hovius).

Salesperson – s. 2(1)(h)

Salespersons (other than route salespersons) who earn, as part or all of their remuneration, commissions for the sale of goods or services where such sales are normally made away from the employer's place of business are exempt from the Hours of Work and Eating Periods (Part VII), Three Hour Rule (Part VII.1), Overtime Pay (Part VIII), Minimum Wage (Part IX), Public Holidays (Part X), and Vacation with Pay (Part XI) provisions of the Act.

1. Other than a route salesperson

The question of what is a route salesperson has frequently been considered by the Ontario Labour Relations Board. In Orlov v Amato, 2003 CanLII 2984 (ON LRB), the Board found that children who were selling boxed chocolates door-to-door on streets determined by the employer were route salespersons and therefore not exempt from the core employment standards under s. 2(h) of O Reg 285/01. The Board cited six cases under the corresponding exemption under the former Act, which was substantially the same as s. 2(h), where a determination was made regarding the exclusion of "route salespersons" from the salesperson exemption. These cases focused on the purpose of the exemption and noted that although the term "route salesperson" was not defined in the Act or regulations, the degree of control exercised by the employee (as opposed to the employer) was a significant factor in determining whether the work in issue was "route" sales but also noted that the issue of whether an employee was a route salesperson could not turn on the matter of control alone.

Another case on the question of what is a route salesperson, Schiller v P & L Corporation Ltd., 2012 CanLII 12611 (ON LRB), concerned an employee selling newspaper subscriptions door-to-door who was picked up by the employer with other employees each day and dropped off in an assigned neighbourhood. She was provided with a list of non-subscribers on particular streets within the neighbourhood to solicit and she could not increase her ability to earn more by working at times or in neighbourhoods other than those assigned to her by the employer. The Board held that she was a route salesperson because sales in this case were conducted on the basis of "routes" which were established and determined by the employer.

2. Normally made away from the employer's place of business

In Evangelista v Number 7 Sales Limited, 2008 ONCA 599 (CanLII), the Court of Appeal interpreted s. 2(1)(h)(ii) and considered the meaning of "normally made away from the employer's place of business". The case involved a used car sales manager who was paid on a commission basis and who spent one day each week away from the employer's premises buying and selling used cars at an auction. The Court asserted that the exemption was not intended to deny rights to salespersons who carry out only a small portion of their duties away from the employer's business premises. The Court held that the exemption is "directed at salespersons who normally carry out their duties off-site in the sense that they spend most of their time away from their employer's place of business."

Exemptions from Parts VII to XI of the Act – s. 2(2)

Certain farm employees are exempt from the Hours of Work and Eating Periods (Part VII), Three Hour Rule (Part VII.1), Overtime Pay (Part VIII), Minimum Wage (Part IX), Public Holidays (Part X), and Vacation with Pay (Part XI) provisions of the ESA 2000.

In order for the exemption to apply:

  1. The person must be employed on a farm; and
  2. The person's employment must be directly related to the primary production of any of the specified commodities: eggs, milk, grain, seeds, fruit, vegetables, maple products, honey, tobacco, herbs, pigs, cattle, sheep, goats, poultry, deer, elk, ratites, bison, rabbits, game birds, wild boar and cultured fish.

Current Program policy with respect to this exemption incorporates the Divisional Court decision in Rouge River Farms Inc. v. Director of Employment Standards and Ontario Labour Relations Board, 2019 ONSC 3498

“Employed on a farm”

The normal, ordinary meaning of “a farm” is a tract of land under cultivation or used for pasture for the growing or raising of agricultural products. However, it is Program policy that the term can also cover other types of facilities used in the primary production of the specified commodities such as greenhouses, insulated buildings containing frame beds for the growing of mushrooms, storage facilities, or industrial buildings used to carry out post-harvest primary production activities (see Rouge River Farms Inc. v. Director of Employment Standards and Ontario Labour Relations Board, 2019 ONSC 3498).

It is the Program's position that there is no requirement that the land or buildings in question be contained on a single tract of land or even on contiguous lots or part lots. So long as all of the tracts of land and/or buildings are worked or managed by the same farmer, they will all be considered to be “a farm”; this is true regardless of the distance between the locations.

For example:

“Employed on a farm” requires that the employment duties relate to the activities surrounding or flowing out of the main enterprise of growing agricultural products or raising animals and that those duties are performed in whole, or at least in part, on the farm in question.

It is the Program's position that “employed on a farm” does not generally necessitate employment with the person that owns or runs the farm. In other words, the employee does not have to be the employee of the farmer to be considered to be employed on a farm. However, “employed on a farm” has been interpreted by the Board as meaning “employed on a single farm” — see 976395 Ontario Inc. v Burry, 2001 CanLII 11999 (ON LRB). In that case, where employees were picked up and transported to catch and carry chickens from the barn to the truck at a number of different farms, the Board concluded that the exemption did not apply because the employees were not employed to provide services to a single farm. As a result, the Program's view is that although the employee does not have to be employed by the farmer, the employee's services must be provided to a single farmer for the employee to be considered to be employed on a farm.

“Directly related to primary production”

“Directly related”

As per the Ontario Labour Relations Board decision in Highline Produce Limited v Flieler, 2009 CanLII 40205 (ON LRB), “directly related” refers to “hands on” work with the specified commodity.  However, it is Program policy that “hands on” work does not require the employee to actually touch the specified commodity as part of the employee’s job.  “Hands on” in this context means participation in tasks that have a direct impact or direct influence on the primary production of the specified commodity.  For example, an employee whose sole responsibility is to ensure the proper temperature and humidity in a greenhouse will be considered to be working “hands on” with the commodity – i.e. will be considered to be in employment that is “directly related” to the primary production - even if this employee does not physically touch the commodity.  As another example, an employee who manages or supervises a group of employees whose work is directly related to the primary production of a specified commodity may satisfy the “directly related” requirement on the basis that the manager or supervisor directly influences the primary production of a specified commodity.In light of the Divisional Court decision in Rouge River Farms Inc. v. Director of Employment Standards and Ontario Labour Relations Board, 2019 ONSC 3498, which held that work that is “directly related to primary production” need not occur at the physical location where the growing occurs and that the exemption applied to industrial buildings used to carry out post-harvest primary production activities that were very distant (in some cases, hundreds of kilometres) from the farmer’s land where the commodity was grown, it is no longer Program policy that there be “immediate” hands on work with the commodity for the employment to be considered to be “directly related” to the primary production. As set out in the paragraph above, the “directly related” criterion will be met if the work has a direct impact or direct influence on the primary production of the specified commodity.

Note that the “hands on” / “directly related” requirement means that some work that is carried out on a farm is not captured by this exemption, even if the farm produces one of the specified commodities and even if the work supports the farming enterprise.  For example, employees who prepare the meals for other farm employees whose work is directly related to primary production will not be captured by this exemption because the connection between their work and primary production is too remote, i.e. it is indirect

“Primary production”

“Primary production” means any step in the growing or production of the specified commodity prior to a change in the form or state of the ” commodity. This includes harvesting , cooling, sorting, trimming, grading, on-farm storage, on-farm packaging in a raw state, as well as transportation to market of agricultural products that have not been changed in form or state (see below).

“Primary production” ends once employees are engaged in transforming the raw specified commodity into a different form or state (e.g., by pureeing, cooking, brining, canning , drying , or, in the case of specified livestock and other live commodities, slaughter).  This “transformation” was described by the Board in the Highline Produce decision as follows: “the processing of a raw vegetable into some other state, such as a liquid or cooked solid would not be part of “‘primary ”production’ nor would the handling of the product in the changed state or form” (Highline Produce Limited v. Flieler, 2009 CanLII 40205 (ON LRB)).

As such, the relevant question in assessing whether a particular activity falls within “primary production” is to ask whether the activity is a step in the growing or production of the specified commodity occurring prior to the raw commodity being transformed in form or state. 

Note that there are a number of decisions in which the word “processing” is used to describe this change in form or state, and that earlier versions of the Policy and Interpretation Manual also used the word “processing” to describe the test.  The Program now primarily uses the term “transforming” to describe the point at which primary production ends.  This change in language is not a substantive change to the Program’s approach in any way.  Rather, the term “transforming” is now being used to avoid potential misunderstandings as to what does and what does not fall within “primary production”; i.e. certain “processes” / activities that are part of primary production may be misinterpreted as “processing” the commodity (for example, the hydro-cooling of corn: because hydro-cooling does not change the form or state of the corn, that process is part of primary production).  To avoid confusion, the language of “transforming” in form or state is preferred by the Program.

As transforming specified commodities into a different form or state — and steps subsequent to this transformation (e.g., the transportation of the product post-transformation) — are not “directly related to primary production”, employees engaged in such activities do not fall under the exemption in s. 2(2) of O Reg 285/01. See, however, O Reg 285/01, s. 15  which establishes a special overtime threshold for seasonal employees whose employment is directly related to the activities of canning or processing of fresh fruits or vegetables — which constitutes a transformation of the fresh fruit or vegetables.  (The special overtime threshold also applies to seasonal employees whose employment is directly related to the non-transforming activities of packing fresh fruit and vegetables, but who are not “employed on a farm”.)

Insofar as storage or transportation of the raw or pre- transformed product is concerned, however, it should be noted that the exemption in s. 2(2) would only apply if the farmer was the employer of the employee in question and it is the farmer's own goods (in their pre-transformed form or state) that are being stored or transported. Thus, if the farmer used a trucking company to take its produce to market, the exemption would not apply to the individuals employed by the trucking company.

It should be noted that some employees employed on a farm to harvest the items listed in s. 2(2) also fall within ss. 24 through 27 of O Reg 285/01. These provisions, which apply to fruit, vegetable, and tobacco harvesters override s. 2(2) to the extent of giving the employees in question an entitlement to minimum wage, coverage under the three hour rule and, if they are employed for 13 weeks or more, vacation and public holiday pay. See ss. 24 to 27 in O Reg 285/01 for further information regarding harvest workers.

“Specified commodities”

In order for this exemption to apply, an employee must be employed on a farm and his or her employment must be directly related to the primary production of one of the following specified commodities:

  • eggs, milk, grain, seeds, fruit, vegetables, maple products, honey, tobacco, herbs, pigs, cattle, sheep, goats, poultry, deer, elk, ratites, bison, rabbits, game birds, wild boar and cultured fish.

Only those employees involved in the primary production of the listed commodities are exempted. For example, employees engaged in the production of the following products are not exempted: gladioli bulbs since they are not “seeds”; flowers – see Butt v Six Employees (April 4, 1973), ESC 118 (McNish), but also see ss. 4(3)(a)(ii), 8(e)(ii) and 9(1)(d)(ii) of O Reg 285/01 regarding exemptions for flower growers from the hours of work and eating periods, overtime pay and public holiday provisions of the Act; and peat moss since it is not a "vegetable" – see Thomas Edward Quinn Enterprises Limited v Employees (April 18, 1973), ESC 126 (Armstrong).

Mushrooms

It should be noted that although from a strictly scientific standpoint a mushroom is not a vegetable (it is, rather, a fungus), mushrooms have been held to be a vegetable for purposes of the primary production exemption. In Re Ontario Mushroom Co. Ltd. et al. and Learie et al., 1977 CanLII 1117 (ON SC), the Divisional Court held that the word "vegetable", as used in a predecessor to the current exemption, should be interpreted in its ordinary, as opposed to technical sense, and that in its ordinary sense the term "vegetable" would include mushrooms. The Court went on to hold that the exemption applied to persons employed in the growing of mushrooms, despite the more specific — and somewhat less extensive — exemptions (now found in ss. 4(3)(a)(i), 8(e)(i) and 9(1)(d)(i) of O Reg 285/01) that applied specifically to such employees.

In 2008, believing that principles of statutory and regulatory interpretation had evolved since the time of the Re Ontario Mushroom Co. Ltd. et al. and Learie et al. decision to the point where the exemptions specific to mushroom growing would be held impliedly to exclude employees whose employment was directly related to the growing of mushrooms from the broader exemption in s. 2(2), the Program changed its policy and took the position that such employees would not fall within that subsection. Subsequently, however, in Highline Produce Limited v Flieler, the Ontario Labour Relations Board found that the employment of an employee engaged in the packing of mushrooms was "directly related to the primary production of . . .vegetables" and, having so found, held that it was unnecessary to go on to consider whether the employee fell within the exemptions that applied to persons whose employment was directly related to mushroom growing. In light of the Highline Produce Limited v Flieler decision, the Program has reverted to its previous policy; persons whose employment is directly related to the growing of mushrooms, including the packing of mushrooms in their raw state, should thus be considered to fall within s. 2(2).

Summary

In order for the exemption in subsection 2(2) to apply, all of the following criteria must be met:

  1. The employee must be “employed on a farm”.
  2. The employee must engage directly with the specified commodity through “hands-on” work, meaning participation in tasks that have a direct impact or direct influence on the primary production of the specified commodity.
  3. The work must occur at a stage in the growing or production of the specified commodity that precedes a transformation in the form or state of the commodity.
  4. The commodity in question must be a specified commodity, meaning it is specifically listed in the section.

Section 2.1 – Exemption for the Crown and certain public bodies

Section 2.1 was added to O. Reg. 285/01 effective January 1, 2019.

There have been several significant changes to “the Crown” exemptions since January 2018. See the table at the end of this section for details of which provisions applied to “the Crown” at which point in time.

Crown, etc., exemption – s. 2.1

This provision exempts the Crown, a Crown agency or authority, board, commission or corporation all of whose members are appointed by the Crown from all provisions of the Act other than those listed in subsection (2).

The term "Crown" refers to the government of Ontario. More precisely, it refers to the executive branch of government, as the term Crown does not include the Legislative Assembly or the judiciary.

The determination of whether an entity is a Crown agency and therefore exempted from every provision of the Act except those listed is 2.1(2) is generally made on the basis of the common law, which looks at the nature and degree of control which the Crown, through its Ministers, exercises over the entity. For example, see Westeel-Rosco Ltd. v Board of Governors of South Saskatchewan Hospital Centre, [1977] 2 SCR 238, 1976 CanLII 185 (SCC).

In some cases, a statute will expressly state that an entity is a Crown agency. See, for example, the Liquor Control Act, R.S.O. 1990, c L.18, which specifically states the Liquor Control Board of Ontario is a Crown agency. In such a case, there is no need to consider the common law test.

The Crown Agency Act, R.S.O. 1990, c C.48, defines "Crown agency" as "a board, commission, railway, public utility, university, manufactory, company or agency, owned, controlled or operated by Her Majesty in right of Ontario, or by the Government of Ontario, or under the authority of the Legislature or the Lieutenant Governor in Council". This definition, if read literally, would make even privately-owned business corporations Crown agencies, given that they usually operate under the authority of an Act of the Legislature, such as the Ontario Business Corporations Act, R.S.O. 1990, c B.16. However, Ontario courts have generally continued to use the control test to determine whether an entity is a Crown agency. See P.W. Hogg, P. J. Monahan & W.K Wright, Liability of the Crown, 4th ed., p. 468, n. 27.

Accordingly, it is Program policy that an entity will be considered to be a Crown agency only if it is controlled by the Crown or if a statute states that the entity or that particular type of entity is a Crown agency. An example of the latter is the Ontario Colleges of Applied Arts and Technology Act, 2002, S.O 2002, c 8, Sch F, which specifically provides that colleges established under that Act are Crown agencies.

It is important to bear in mind that not all public sector employers are Crown employers for the purposes of enforcing the Employment Standards Act, 2000. In fact, the majority are not. Examples of public sector employers who are not considered Crown employers and are therefore subject to all provisions of the Employment Standards Act, 2000 include:

  • Hospitals, municipalities and boards of education: these entities are not or at least generally are not subject to control by the executive branch of government
  • Universities: Despite the inclusion of “university” in the definition of “Crown agency” in s. 1 of the Crown Agency Act, a university is not considered by the Program to be a Crown agency since it is not subject to the control of the executive branch of government
  • The Ombudsman: the Ombudsman is an officer of the Legislature and not part of the executive branch of government

The reference in s. 2.1(1) to an "authority, board, commission or corporation all of whose members are appointed by the Crown" encompasses entities that would not be considered Crown agencies, but whose members are all government appointees. An example would be the Ontario Labour Relations Board.

Provisions that apply

Pursuant to s. 2.1(2), only the provisions listed in that subsection apply to the Crown, a Crown agency or authority, board, commission or corporation all of whose members are appointed by the Crown.

If a provision of the ESA is not listed it does not apply to the Crown, etc. specifically, these provisions do not apply:

  1. Part II – Posting of Information Concerning Rights and Obligations
  2. Section 4(2) footnote 7
  3. Part V – Payment of W ages (other than section 14)
  4. Part V.1 – Employee Tips and Other Gratuities
  5. Part VII – Hours of Work and Eating Periods
  6. Part VII.1 – Three Hour Rule
  7. Part VIII – Overtime Pay
  8. Part X – Public Holidays
  9. Part XVII – Retail Business Establishments
  10. Sections 74(1)(a)(vii) and 74(1)(b)
  11. Part XVIII.1 – Temporary Help Agencies
  12. Part XX – Liability of Directors
  13. Part XXIV – Collection
  14. Part XXV – Offences and Prosecutions

History of the “Crown” exemptions

The following table outlines how the Employment Standards Act, 2000 applied at specific points in time to the Crown, a Crown agency or an authority, board, commission or corporation all of whose members are appointed by the Crown and its employees (referred to collectively as “the Crown” in this table).

History of the "Crown" exemptions
DateProvisions
Prior to January 1, 2018

The following provisions/Parts applied to the Crown:

  • Part IV Continuity of Employment
  • Section 14: Priority of Claims
  • Part XII Equal Pay for Equal Work
  • Part XIII Benefit Plans
  • Part XIV Leaves of Absence
  • Part XV Termination and Severance of Employment
  • Part XVI Lie Detectors
  • Part XVIII Reprisal, except for subclause 74 (1)(a)(vii) and clause 74(1)(b)
  • Part XIX Building Services Providers

(This was set out in ss. 3(4) of the Employment Standards Act, 2000.)

January 1, 2018Entire ESA applied, except s. 4(2) (the “related employer” provision).

(This was pursuant to the Fair Workplaces Better Jobs Act, 2017, which repealed ss. 3(4), added s. 3.1 that states the Act binds the Crown, and added the exception to the “related employer” provision in ss. 4(4.1).)
October 24, 2018The Crown is exempt from Part VII (Hours of Work and Eating Periods) and Part VIII (Overtime Pay). (This is pursuant to an amendment to O. Reg. 285/01) (The exemption from s. 4(2) of the Act continues.)
January 1, 2019

The Crown is exempt from every provision of the Act except those listed in section 2.1 of O. Reg. 285/01.

Section 2.1 of O. Reg. 285/01 provides that only the following provisions/Parts apply to the Crown:

  • Part I: Definitions
  • Part III How This Act Applies, subject to the application of subsection 4 (4.1)
  • Part IV Continuity of Employment
  • Section 14: Priority of Claims
  • Part VI Records
  • Part IX Minimum Wage
  • Part XI Vacation with Pay
  • Part XII Equal Pay for Equal Work
  • Part XIII Benefit Plans
  • Part XIV Leaves of Absence
  • Part XV Termination and Severance of Employment
  • Part XVI Lie Detectors
  • Part XVIII Reprisal, except for subclause 74 (1)(a)(vii) and clause 74(1)(b)
  • Part XIX Building Services Providers
  • Part XXI Who Enforces This Act and What They Can Do
  • Part XXII Complaints and Enforcement
  • Part XXIII Reviews by the Board
  • Part XXVI Miscellaneous Evidentiary Provisions
  • Part XXVII Regulations
  • Part XXVIII Transition

(This is pursuant to amendments to O. Reg. 285/01 that added s. 2.1 and revoked the provisions that had created the October 2018 Hours of Work and Overtime Pay exemptions.)

Sections 3 – Special rules re certain leave

These provisions limit the rights of and create special rules for certain employees with respect to sick leave, family responsibility leave and bereavement leave.

Note that this section was amended effective January 1, 2019. Prior to January 1, 2019, this exemption applied to the below-described classes of professionals in relation to personal emergency leave, which was repealed effective January 1, 2019. As of January 1, 2019, the special rule applies to the same employees in relation to sick leave (s. 50), family responsibility leave (s. 50.0.1) and bereavement leave (s. 50.0.2).

Professional duty – s. 3

Employees described in s. 3 paragraphs 1 or 2 who, if they exercised the right to sick leave, family responsibility leave or bereavement under ESA Part XIV, s. 50 s. 50.0.1 or s. 50.0.2, would in the circumstances be guilty of professional misconduct or dereliction of duty, are exempt from the right to take any of these leaves in those circumstances. For example, a nurse would be precluded from exercising a right to family responsibility leave if by doing so it would constitute professional misconduct or dereliction of duty because she had left a patient unattended.

The employees subject to this limited exemption are: those described in s. 2(1)(a), (b), (c) and (d) and students in training for those professions, and any registered health practitioners of professions set out in Schedule 1 of the Regulated Health Professions Act, 1991, SO 1991, c 18 not already listed in s. 2(1)(b). The latter professions are:

ProfessionAct
Audiology and Speech-Language PathologyAudiology and Speech-Language Pathology Act, 1991, S.O 1991, c 19
Dental HygieneDental Hygiene Act, 1991, S.O 1991, c 22
Dental TechnologyDental Technology Act, 1991, S.O 1991, c 23
DenturismDenturism Act, 1991, S.O 1991, c 25
DieteticsDietetics Act, 1991, S.O 1991, c 26
HomeopathyHomeopathy Act, 2007, S.O 2007, c 10, Sched Q
KinesiologyKinesiology Act, 2007, S.O 2007, c 10, Sched O
Medical Laboratory TechnologyMedical Laboratory Technology Act, 1991, S.O 1991, c 28
Medical Radiation TechnologyMedical Radiation Technology Act, 1991, S.O 1991, c 29
MidwiferyMidwifery Act, 1991, S.O 1991, c 31
NursingNursing Act, 1991, S.O 1991, c 32
Occupational TherapyOccupational Therapy Act, 1991, S.O 1991, c 33
OpticianryOpticianry Act, 1991, S.O 1991, c 34
PsychotherapyPsychotherapy Act, 2007, c 10, Sched R
Respiratory TherapyRespiratory Therapy Act, 1991, S.O 1991, c 39
Traditional Chinese MedicineTraditional Chinese Medicine Act, 2006, S.O 2006, c 27

Section 3.0.1 – Construction employee (Revoked)

Section 3.0.1 of O. Reg. 285/01 was revoked effective January 1, 2019. This provision is therefore no longer in force. However, construction employees who work in the construction industry may still have a complaint relating to personal emergency leave pay that arose during the period of time this provision — which established a special rule relating to the now-repealed personal emergency leave pay provision — was in force: from January 1, 2018 to December 31, 2018. For that reason, the Program’s interpretation of this section remains as part of this publication, though the text appears in red to highlight that the provision has been revoked.

Construction employees – s. 3.0.1

This section provides a special rule which may be applicable to construction employees who work in the construction industry: if these employees receive 0.8% or more of the employee’s hourly rate or wages for personal emergency pay, the employees will not be entitled to be paid for the first two personal emergency leave days that they take within a calendar year. However, they will be entitled to take up to 10 unpaid personal emergency leave days in a calendar year if they meet the eligibility requirements of ESA Part XIV, s. 50.

Note that employers of construction employees are not required to follow the special rule, and may instead revert to the basic personal emergency leave entitlements under s. 50, including the requirement to pay employees the wages that they would have earned had they worked during the first two days of personal emergency leave taken in the calendar year.

“Construction employee” and “construction industry” are both defined terms: see O Reg 285/01, s. 1 for more information.

For the personal emergency pay special rule, 0.8 per cent represents approximately two days of wages.

Section 3.1 – Fees, s. 28 of Ontario Municipal Employees Retirement System Act, 2006

Section 3.1(1)

This provision applies only to employers that participate in an Ontario Municipal Employees Retirement System ("OMERS") pension plan under the Ontario Municipal Employees Retirement System Act, 2006, SO 2006, c 2 ("OMERSA"). It makes s. 13 of the Employment Standards Act, 2000, which subject to certain exceptions prohibits deductions from wages, inapplicable to such employers insofar as fees that a by-law made under s. 28 of OMERSA requires an employee to pay. As a result, an employer may deduct from an employee's wages the amount that the by-law requires the employee to pay without obtaining the employee's written authorization.

Section 3.1(2)

Section 3.1(2) provides that the s. 3.1(1) exemption applies only if the employer remits the fees in accordance with the by-law. Therefore, if the employer fails to remit the fees in accordance with the by-law, the deduction will not be lawful.

Section 4 – Exemptions from Part VII of Act

Exemptions from sections 17, 18 and 19 of the Act – s. 4(1)

Firefighters – s. 4(1)(a)

Pursuant to s. 4(1)(a), firefighters, as defined in s. 1 of the Fire Protection and Prevention Act, 1997, SO 1997, c 4 ("FPPA") are exempt from:

  • the daily and weekly limits on hours of work in ESA Part VII, s. 17, and
  • the daily, between shift, weekly and bi-weekly rest provisions in ESA Part VII, s. 18, and
  • ESA Part VII, s. 19 which sets out exceptional circumstances in which the employee may be required to work hours in excess of those set out in s. 17 or work during a free period under s. 18.

Section 19 provides for a limited set of circumstances in which an employer can require an employee to work hours in excess of those set out in s. 17 or to work during a free period under s. 18; since ss. 17 and 18 do not apply to firefighters in the first place, it would make no sense if the regulation did not also make section 19 inapplicable.

Note that firefighters are also exempted from:

Section 1 of the FPPA defines a firefighter as follows:

The exemptions will therefore also apply to fire chiefs and volunteer firefighters. In addition, as the definition makes no distinction between fulltime and part-time firefighters, the exemption will apply to both.

Supervisors and managers – s. 4(1)(b)

A supervisor or manager who falls within the definition in O Reg 285/01, s. 4(1)(b) is exempt from:

  • the daily and weekly limits on hours of work in ESA Part VII, s. 17
  • the daily, between shift, weekly and bi-weekly rest provisions in ESA Part VII, s. 18, and
  • ESA Part VII, s. 19 which sets out exceptional circumstances in which the employee may be required to work hours in excess of those set out in s. 17 or work during a free period under s. 18.

The reason that this category of employee is exempted from s. 19 is because s. 19 provides for a limited set of circumstances in which an employer can require an employee to work hours in excess of those set out in s. 17 or to work during a free period under s. 18; since ss. 17 and 18 do not apply to supervisors or manager in the first place, it would make no sense if the regulation did not also make s.19 inapplicable. Under of O. Reg. 285/01, s. 8(b), such an employee is also exempted from the overtime pay provisions of the ESA 2000.

Supervisory or managerial in character

Work that is "supervisory or managerial in character" generally refers to the supervision of employees rather than the supervision of machines. However, managerial functions can be distinct from supervisory functions. Although supervision of other employees is a primary indication of a managerial employee, this factor is not the only one to be considered. Some employees can be considered managerial even though they do not supervise other employees. Some examples of managerial functions are hiring and firing of employees, responsibility for making substantial purchases, financial control and budgeting, and production planning. Other management functions would include the regular exercise of discretion and independent judgment in management affairs.

Just because a contract of employment or collective agreement states that a person is a manager or supervisor does not mean that the exemption will automatically apply. The actual functions of the person must be assessed. The intention here is that the exemption applies only to the true supervisor who does not regularly or ordinarily perform the same work as the people he or she supervises. The section therefore exempts employees who perform such managerial or supervisory work exclusively, and also those managers and supervisors who perform non-supervisory or non-managerial tasks either on an irregular or exceptional basis.

Irregular

"Irregular" implies that although the performance of non-supervisory or non-managerial duties is not unusual or unexpected, their performance is unscheduled or sporadic (i.e., does not occur at a regular or set time). For example, if a manager is expected or required to cover staff duties for non-supervisory staff as a result of an unexpected rush of customers, or because a non-supervisory employee has called in sick, these duties may be considered irregular because they are not performed at a scheduled or otherwise regular time. However, if a pattern developed with the result, for example, that a manager was performing staff duties every day during the lunch rush between 11:30 a.m. and 1 p.m., the Program's position would be that the performance of those duties was clearly no longer irregular.

The exemption will not apply even though the employer has not assigned the non-supervisory or non-managerial work, but places the employee in such a position that he or she has no alternative but to regularly perform day-to-day duties of non-supervisory/managerial employees in order to keep the business in operation. An example would be the manager of small shoe store who operates the business by himself or herself on Monday and is provided with part-time help for the rest of the week. This person is performing non-supervisory or non-managerial work on a regular basis. He or she is, each Monday, required to run the entire operation, including arranging displays, assisting customers, etc., in addition to his or her managerial duties.

Finally, whether the performance of non-supervisory or non-managerial duties on a daily basis is irregular may also depend not only on whether or not they are "scheduled", but also the frequency with which such duties are performed and the amount of time spent performing them. Therefore, if a manager spends a significant period of time on each shift performing non-supervisory duties, the performance of such duties could not be said to be irregular, despite the fact that there was no set schedule for their performance. For example, if a manager at a fast food restaurant spends an hour or more of each shift assisting at the cash or in food preparation, these non-supervisory or non-managerial duties may be considered a regular part of his or her duties because they are performed on a "daily basis", even though the hour of non-supervisory work is not scheduled or performed at a set time each day. Similarly, if a manager spent three or four hours of an eight-hour shift performing non-managerial duties once a week, these non-managerial duties may be considered regular duties and the exemption would not apply.

Exceptional

"Exceptional" suggests that non-supervisory or non-managerial duties may be performed so long as they are being performed outside of the ordinary course of the employee's duties. That is, their performance is not in the normal course. For example, if, as a result of a severe snowstorm, the manager were to assist a staff member to clear the snow from the entrance to the employer's establishment (ordinarily the responsibility of the staff member), the performance of this non-supervisory duty could be considered exceptional. Another example is where a manager performs bargaining unit work during a strike or lock-out. Generally, the performance of bargaining unit work due to a strike or lock-out will be seen as an exceptional situation, and the exemption will continue to apply during the strike or lockout. However, there may be situations, such as where the strike or lock-out lasts for more than a few months and the manager is performing non-supervisory and non-managerial duties continually for more than a few months, where the situation is no longer seen as exceptional and the exemption will no longer apply.

Hunting or fishing guide or Wilderness Guide – s. 4(1)(c)

Pursuant to s. 4(1)(c), a hunting or fishing guide or a wilderness guide (as defined in s. 1 of O. Reg. 285/01) is exempt from:

  • the daily and weekly limits on hours of work in ESA Part VII, s. 17
  • the daily, between shift, weekly and bi-weekly rest provisions in ESA Part VII, s. 18, and
  • ESA Part VII, s. 19 which sets out exceptional circumstances in which the employee may be required to work hours in excess of those set out in s. 17 or work during a free period under s. 18.

Note that since ss. 17 and 18 do not apply to these employees in the first place, it would make no sense if the regulation did not also make s.19 inapplicable.

Note that such employees are also exempted from the overtime pay provisions in ESA Part VIII by O. Reg. 285/01, s. 8(c) and the public holiday provisions in ESA Part X by O. Reg. 285/01, s. 9(1)(b).

Also note that these employees are subject to a special minimum wage — see section 23.1(1) of the ESA for hunting and fishing guides and s. 6 of O. Reg. 285/01 for wilderness guides.

Construction employee – s. 4(1)(d)

Pursuant to s. 4(1)(d), a construction employee as defined in O. Reg. 285/01, s. 1 is exempt from:

  • the daily and weekly limits on hours of work in ESA Part VII, s. 17
  • the daily, between shift, weekly and bi-weekly rest provisions in ESA Part VII, s. 18, and
  • ESA Part VII, s. 19 which sets out exceptional circumstances in which the employee may be required to work hours in excess of those set out in s. 17 or work during a free period under s. 18.

Since ss. 17 and 18 do not apply to construction employees in the first place, it would make no sense if the regulation did not also make s. 19 inapplicable.

Note that they are also exempted from the public holiday provisions in ESA Part X if the employee receives 7.7 per cent or more of their hourly rate of wages for vacation pay or holiday pay — see O. Reg. 285/01, s. 9(2).

Superintendent, janitor or caretaker – s. 4(1)(e)

Pursuant to s. 4(1)(e), a person employed as a superintendent, janitor or caretaker of a residential building who resides in the building is exempt from:

  • the daily and weekly limits on hours of work in ESA Part VII, s. 17
  • the daily, between shift, weekly and bi-weekly rest provisions in ESA Part VII, s. 18, and
  • ESA Part VII, s. 19 which sets out exceptional circumstances in which the employee may be required to work hours in excess of those set out in s. 17 or work during a free period under s. 18.

Since ss. 17 and 18 do not apply to residential building superintendents, janitors and caretakers in the first place, it would not make sense if the regulation did not also make s. 19 inapplicable to these employees.

Note that these employees are also exempted from the application of the three hour rule in ESA Part VII.1, s. 21.2 by O. Reg. 285/01, s. 4.1(d), the minimum wage provisions in ESA Part IX by O. Reg. 285/01, s. 7(d), the overtime pay provisions in ESA Part VIII by O. Reg. 285/01, s. 8(i), and the public holiday provisions in ESA Part X by O. Reg. 285/01, s. 9(1)(h).

The exemption only applies to employees working in residential buildings: apartments, condominiums, etc. Those working in office or manufacturing buildings are not exempted by this provision.

The employee must actually live in the building for which they responsible or in another building in the same complex. If he or she does not do so, they are not exempt.

The exemption does not apply to a person who performs night-time surveillance duties in a building housing people in specialized treatment programs. See Goyette and Goyette v Residence Sainte Marie Inc. (May 9, 1997), ES 97-56 (Novick).

The ESA 2000 does not deal with the rules regarding the tenancy of superintendents, janitors or caretakers. These are dealt with under the Residential Tenancies Act, 2006, S.O 2006, c 17. Employees with concerns regarding their tenancy should be referred to the appropriate area office of the Ministry of Affairs and Housing for further information.

Embalmer or funeral director – s. 4(1)(f)

Pursuant to s. 4(1)(f), a person employed as an embalmer or funeral director is exempt from:

  • the daily and weekly limits on hours of work in ESA Part VII, s. 17
  • the daily, between shift, weekly and bi-weekly rest provisions in ESA Part VII, s. 18, and
  • ESA Part VII, s. 19 which sets out exceptional circumstances in which the employee may be required to work hours in excess of those set out in s. 17 or work during a free period under s. 18.

Since ss. 17 and 18 do not apply to embalmers and funeral directors, it would not make sense if the regulation did not also make s. 19 inapplicable to these employees.

No person can act as a funeral director or embalmer unless he or she has been properly licensed as a "funeral director" under the Funeral Directors and Establishments Act, R.S.O. 1990, c F.36. Only licensed individuals who are performing funeral and embalming services are exempt. Other employees in the funeral industry, even if they are employed in a funeral home, are not exempt. For example, secretaries, receptionists, hearse drivers, students in training to be a funeral director, and workers at a crematorium or cemetery are not exempt.

Election official – s. 4(1)(g)

Clause 4(1)(g) and subsection 4(1.1) came into effect on March 9, 2018.

Pursuant to s. 4(1)(g), an election official is exempt from:

  • the daily and weekly limits on hours of work in ESA Part VII, s. 17
  • the daily, between shift, weekly and bi-weekly rest provisions in ESA Part VII, s. 18, and
  • ESA Part VII, s. 19 which sets out exceptional circumstances in which the employee may be required to work hours in excess of those set out in s. 17 or work during a free period under s. 18.

Since ss. 17 and 18 do not apply to election officials, it would not make sense if the regulation did not also make s. 19 inapplicable to these employees.

Per subsection 4(1.1), the exemption applies only during a period that begins with the issue of a writ for a general election or by-election under the Election Act and ends on the day after polling day.

Note that “election official” is a defined term in s.1 of O. Reg. 285/01.

Some employees who fall within the “election official” definition may also be considered to be “Crown” employees under section 2.1 of O. Reg. 285/01. Where that is the case, section 2.1 and its longer list of exemptions will apply to those employees.

Exemptions to ss. 17 and 19 of the Act – s. 4(2)

Landscape gardener – s. 4(2)(a)

Pursuant to s. 4(2)(a), persons employed as landscape gardeners are exempt from:

  • the daily and weekly limits on hours of work in ESA Part VII, s. 17, and
  • ESA Part VII, s. 19 which sets out exceptional circumstances in which the employee may be required to work hours in excess of those set out in s. 17 or work during a free period under s. 18.

Note that employees in this category are not exempt from the application of ESA Part VII, s. 18, but because they are exempt from the application of s. 19, an employer could not require such an employee to work during a rest period to which the employee was entitled under s. 18, despite the existence of exceptional circumstances such as those described in s. 19.

Note that they are also exempted from the overtime pay provisions in ESA Part VIII by O. Reg. 285/01, s.8(i) and the public holiday provisions in ESA Part X by O. Reg. 285/01, s. 9(1)(h).

The Program's view is that a person employed as a landscape gardener is engaged in work that directly involves the modification or maintenance of land for a purpose that is substantially aesthetic (as contrasted with utilitarian). Generally, the exemption will apply to employees engaged in:

  • Landscape maintenance (e.g., raking, watering, weeding);
  • Planting or moving plants including hedges, trees or shrubs;
  • Preparing the ground for planting;
  • Caring for established lawns;
  • Trimming, pruning and maintaining plants including hedges, trees, and shrubs;
  • Installing rock gardens, ponds, and planters;
  • Park gardening;
  • Golf course greens-keeping; and
  • Installation and maintenance of irrigation systems (including both drip lines and sprinklers) where the irrigation system contributes to sustaining and maintaining plants (including sod, trees, shrubs and flowers). Note: Previously, the Program's position was that these activities were not subject to the exemption. However, the position changed in light of the Ontario Labour Relations Board's decision in AWS Irrigation Management Inc. v Delottinville, 2014 CanLII 75486 (ON LRB).

The Program considers employees engaged in the following activities to fall outside the definition of a person employed as a landscape gardener:

Mixed work

Employees in many landscaping businesses multi-task; performing a variety of duties, some of which fall within the exemption for a person employed as a landscape gardener and some that do not.

Overtime pay

ESA Part VII, s. 22(9) provides that an employee who performs some work that is subject to the 44 hour overtime threshold, and some work that is exempt from the overtime provisions will be entitled to overtime pay after working 44 hours in a week, unless the employee spends the majority of his or her time in that week engaged in activities that are exempt from overtime.

Consequently, an employee who performs work that is covered by the landscape gardener exemption will be exempt from overtime pay for a particular week only if the landscape gardening work represents more than 50% of the time the employee spent working that week.

Example:

John spent 75% of his work week caring for established lawns while the other 25% of his time was spent installing sprinkler systems. The overtime exemption would apply to John because he spent more than 50% of his time in that work week doing "landscape gardener" work. John is therefore not entitled to overtime pay in respect of that week.

Public holidays

ESA Part X. s. 25(2) provides that unless the majority of time spent in any week in which a public holiday falls is work that is exempt under the regulations, the public holiday provisions will apply with respect to that particular public holiday.

Consequently, an employee who performs work that is covered by the landscape gardener exemption will be exempt from the public holiday provisions for a particular public holiday only if the landscape gardening work represents more than 50% of the time the employee spent working during the week with that public holiday.

Example:

During the work week in which Labour Day fell, Afet spent 75% of her time caring for established lawns while the other 25% of her time was spent installing sprinkler systems. The public holiday exemption would apply to Afet with respect to Labour Day because she spent more than 50% of her time in that work week doing "landscape gardener" work. Therefore, the public holiday entitlements with respect to Labour Day do not apply to Afet.

Hours of work

The ESA 2000 does not specify the period of time to be considered when determining whether the hours of work provisions (daily, weekly maximums) apply to employees who do both landscape gardening work and non-landscape gardening work. It is Program policy to consider whether the core, or essential nature of the employee's work is landscape gardening. This may involve application of the majoritarian test; however the period under consideration would generally be considered to be the full period of employment with the employer, provided there has not been a permanent change in the core or essential nature of the employee's job. For example, if an employee has been engaged in a mix of landscape gardening and non-landscape gardening activities over the five year course of their employment, consideration would be given to where the employee spent the majority of his or her time over those five years.

Where the core, or essential nature of an employee's job changes, work performed prior to a permanent change in the nature of the employee's job will not be relevant when making a determination as to whether or not the employee is currently a person employed as a landscape gardener or not.

Example:

If an employee spent five years employed in the office of a landscaping company performing administrative duties and subsequently accepted a permanent position with that company planting trees and hedges in residential gardens, they would be considered to be a person employed as a landscape gardener immediately upon commencing his or her new position because there was a permanent change to the core nature of their job. As a result, the hours of work exemptions would apply immediately.

Swimming pool installation and maintenance – s. 4(2)(b)

Pursuant to s. 4(2)(b), a person employed to install and maintain swimming pools is exempt from:

  • the daily and weekly limits of hours of work in ESA Part VII, s. 17, and
  • ESA Part VII, s. 19 which sets out exceptional circumstances in which the employee may be required to work hours in excess of those set out in s. 17 or work during a free period under s. 18.

Note, however, that because employees in this category are not excluded from ESA Part VII, s. 18, an employer could not require such an employee to work during a rest period to which the employee was entitled under that section, despite the existence of exceptional circumstances such as those described in s. 19.

Note that they are also exempted from the overtime pay provisions in ESA Part VIII by O. Reg. 285/01, s. 8(i) and the public holiday provisions in ESA Part X by O. Reg. 285/01, s. 9(1)(h).

It is the Program's position that this exemption does not extend to people employed to install and maintain hot tubs, on the basis that exemptions from the rights and benefits afforded under the legislation must be construed narrowly. In King v RNR Patient Transfer Services Inc., 2008 CanLII 22 (ON LRB)the Ontario Labour Relations Board cited the Supreme Court's decision in Rizzo & Rizzo Shoes Limited (Re), [1998] 1 SCR 27at paragraph 36:

In applying this principle in the context of exemptions, the Board said: "A liberal and generous interpretation of the Act requires any regulation, like (s. 8 of O. Reg. 285/01) that limits the application of the Act or exempts certain individuals from receiving the benefits conferred by the Act to be strictly or narrowly construed."

On a plain reading, the terms "swimming pool" and "hot tub" have different meanings and the Program's position in light of the above is that the exemption does not apply to persons employed to install and maintain hot tubs.

Exemptions to Part VII of the Act – s. 4(3)

A person whose employment is directly related to the activities described in ss. 4(3)(a) (i)-(vi) is exempt from all of the hours of work and eating periods provisions contained in Part VII of the Act. This includes the daily and weekly limits on hours of work in s. 17, the daily, weekly and bi-weekly rest provisions in s. 18, the provisions in s. 19, and the right to an unpaid eating period(s) as set out in ss. 20 and 21 of the Act. Section 19 provides for a limited set of circumstances in which an employer can require an employee to work hours in excess of those set out in s. 17, or to work during a free period under s. 18. Since ss. 17 and 18 do not apply to employees listed in s. 4(3)(a) in the first place, it would make no sense if the regulation did not also make s. 19 inapplicable.

Note that they are also exempted from the overtime pay provisions in ESA Part VIII by O. Reg. 285/01, s. 8(i) and the public holiday provisions in ESA Part X by O. Reg. 285/01, s. 9(1)(h)

The use of the word "directly" in ss. 4(3)(a)(i)-(vi) of O. Reg. 285/01 eliminates, by implication, all persons employed "indirectly" in the employment described in s. 4(1)(a)(i) through (vi) of the regulation. It, therefore, excludes work that merely contributes to making possible or assisting in the ultimate performance of the work described. For example, a person employed on a farm to prepare meals for employees engaged in the breeding and boarding of horses is assisting in the ultimate performance of an element of horse breeding and boarding, but the work of such a person is not directly related to that activity.

Growing of mushrooms – s. 4(3)(a)(i)

As was noted in the discussion of s. 2(2) of O. Reg. 285/01, in accordance with the Ontario Labour Relations Board's decision in Highline Produce Limited v Flieler, 2009 CanLII 40205 (ON LRB)), an employee whose employment is directly related to the growing of mushrooms is an employee "whose employment is directly related to the primary production vegetables" within the meaning of that subsection, and as a result, such an employee would be excluded from the coverage of Parts VII through XI of the Act. This is despite the specific exemptions from Parts VII (Hours of Work and Eating Periods), Part VIII (Overtime) and Part X (Public Holidays), set out, respectively, in ss. 4(3)(a)(i), 8(e)(i) and 9(1)(d)(i) of O. Reg. 285/01. See O. Reg. 285/01, s. 2(2) for a more detailed discussion regarding the application of the exemption to persons whose employment is directly related to the primary production (or growing) of mushrooms.

Growing of Flowers – s. 4(3)(a)(ii)

A person employed in the growing of flowers is exempt from Part VII (Hours of Work and Eating Periods) of the Act.

Note that they are also exempted from the overtime pay provisions in ESA Part VIII by O. Reg. 285/01, s. 8(e)(ii) and the public holiday provisions in ESA Part X by O. Reg. 285/01, s. 9(1)(d)(ii).

In Butt v Six Employees (April 4, 1973), ESC 118 (McNish) the referee concluded that the six employees who had been engaged to plant gladioli in the summer and then called back in the fall to cut the flowers and dig up the corms and pack them in boxes were engaged in the growing of flowers for the wholesale and retail trade. The referee also appears to suggest that if other employees had been engaged solely in the packaging, assembling, order preparation and distribution of the flowers and corms that he would have found those employees to be employed in the growing of flowers. However, the referee noted that in so doing, he was giving the phrase "growing of flowers" a "liberal interpretation", which is contrary to the Program's approach to construe exemptions to the standards narrowly. As a result, Referee McNish's comments regarding employees engaged solely in packaging, assembly and distribution of flowers are not followed by the Program. See more on this approach under the discussion of s. 4(2)(b) above.

Growing, transporting and laying of sod – s. 4(3)(a)(iii)

A person employed in the growing, transporting and laying of sod is exempt from Part VII (Hours of Work and Eating Periods) of the Act. He or she is also exempt from the overtime pay provisions (see s. 8(e)(iii) of O. Reg. 285/01) and the public holidays provisions (see O. Reg. 285/01, s. 9(1)(d)(iii)).

Growing of trees and shrubs – s. 4(3)(a)(iv)

A person employed in the growing of trees and shrubs is exempt from Part VII (Hours of Work and Eating Periods) of the Act. He or she is also exempt from the overtime pay provisions (see s. 8(e)(iv) of O. Reg. 285/01) and the public holidays provisions (see s. 9(1)(d)(iv) of O. Reg. 285/01).

Breeding and boarding of horses – s. 4(3)(a)(v)

A person employed in the breeding and boarding of horses is exempt from Part VII (Hours of Work and Eating Periods) of the Act. He or she is also exempt from the overtime pay provisions (see O. Reg. 285/01, s. 8(e)(v)) and the public holidays provisions (see O. Reg. 285/01, s. 9(1)(d)(v)).

In order for this exemption to apply, two preconditions must be met:

  1. The employee must be employed in the breeding and boarding of horses; and
  2. The employee must be employed on a farm.

Breeding and boarding of horses

The referee in Kenneth Nixon c.o.b. Nixon Stables v. Adams (November 20, 1985), ESC 1989 (Brown) noted that the Random House Dictionary Unabridged Edition (1966) defined "breed" as: "1. to produce (offspring); procreate; engender. 2. to procure by mating; propagate sexually; reproduce", and "breeding" as "the act of one who or that which breeds".

Therefore, in order for this precondition to be met, the employee must be involved in the accommodation and feeding of mares and studhorses, or the production of offspring from the mares. For example, employees who monitor expectant mares in foaling season are exempt - see Carment Di Paola o/a Riviera Racing Stable v Davenport and Skinner (October 29, 1990), ESC 2768 (Betcherman). Employees engaged in the production of horse feed, such as those described in Bert Simon Larch Tree Farm v. Woolnough and Kraley (September 3, 1980), ESC 857 (Adamson) or engaged in grooming and racing horses, such as those described in Nixon Stables v. Adams are not.

On a farm

Unlike the other exemptions in s. 4(3)(a), the horse-breeding and boarding exemption contains a requirement relating to the location of the work. Only those workers employed "on a farm" are exempt. Persons employed in the breeding and boarding of horses at a racetrack or at a riding stable that is not part of a farm do not fall within the exemption. In order to be on a farm, the operation must be on land that can be cultivated or used as pasture to provide a substantial part of its own feed needs. A large garden plot attached to a riding stable would not qualify as the operation of a farm.

Keeping of fur-bearing mammals – s. 4(3)(a)(vi)

A person employed in the keeping of fur-bearing animals is exempt from Part VII Hours of Work and Eating Periods. They are also exempt from the overtime pay provisions (see O. Reg. 285/01, s. 8(e)(vi)) and the public holidays provisions (see O. Reg. 285/01, s. 9(1)(d)(vi)).

Fur farming is regulated under the Fish and Wildlife Conservation Act, 1997, S.O 1997, c 41 ("FWCA"), which contains the following definition of "fur-bearing mammals":

Schedule 1 of the FWCA lists the following as furbearing mammals: badger, beaver, bobcat, coyote, fisher, gray fox, arctic fox, red fox, lynx, mink, muskrat, marten, opossum, otter, raccoon, striped skunk, red squirrel, least weasel, short-tailed weasel (ermine), long-tailed weasel and wolf.

O. Reg. 669/98 to the FWCA additionally prescribes polar bears and wolverines as furbearing mammals.

Information technology professional – s. 4(3)(b)

4(3) Part VII of the Act does not apply to,

  1. an information technology professional;

A person employed as an information technology professional as defined in s. 1 of O. Reg. 285/01 is exempt from Part VII Hours of Work and Eating Periods. See O. Reg. 285, s. 1 for further information regarding the definition of information technology professional. Such an employee is also exempt from the overtime pay provisions of the Act — see O. Reg. 285/01, s.8(l)

Recorded visual and audio-visual entertainment protection industry – s. 4(3)(c)

A person employed in the recorded visual and audio-visual entertainment production industry as defined in s. 1 of O. Reg. 285/01 is exempt from Part VII Hours of Work and Eating Periods.

See O. Reg. 285/01, s. 1 for further information regarding the definition of the industry and those persons employed therein.

Section 4.1 – Exemptions from Part VII.1 of the Act

Exemptions from Three Hour Rule – s. 4.1 (a) - (d)

Students – s. 4.1 (a), (b) and (c)

Employees who fall within clauses (a) through (c) are exempt from the three hour rule found in Part VII.1, section 21.2 of the ESA 2000.

For details on the meaning of the terms used in this section, see:

  • O. Reg. 285/01, s. 1 for the definition of “wilderness guide”, and
  • O Reg 285/01, s. 7 (under the heading “Students”) for a discussion of the meaning of each category of “student”.

Section 4.1, which was added to O Reg 285/01 effective January 1, 2019, was amended to add “unless the person is a wilderness guide” at the end of clauses (a) through (c) effective June 3, 2019, at the same time that a set of exemptions and a special minimum wage for wilderness guides was introduced into the regulation. This means that the exemption from the three hour rule does not apply to employees who are students within the meaning of the first part of clauses (a) through (c) but who also fall within the definition of “wilderness guide” in s. 1 of O. Reg. 285/01. In that case, the employee will be subject to the three hour rule.

Note that since the definition of “wilderness guide” specifically excludes a student under 18 years of age who works 28 hours each week or less or who is employed during a school holiday, such a student cannot be a “wilderness guide” and is therefore exempt from the three hour rule if the student is employed in a charitable recreational program, to instruct/supervise children, or at a camp for children.

However, take the example of a 20-year-old student who is employed at a camp for children. She is employed to teach and guide children on canoe trips in the wilderness. Because she is employed to teach and guide canoeing in a wilderness environment, and because she is over 18 years old, the “wilderness guide” definition applies to her. This means that the exemption from the three hour rule does not apply to her (but the exemptions and special minimum wage rate applicable to wilderness guides will apply).

Students who are not “wilderness guides” are also exempt from the minimum wage provisions — see O. Reg. 285/01, ss. 7(a) 7(b) and 7(c); the overtime pay provisions — see O. Reg. 285/01, ss. 8(h), (f) and (g); and the public holiday provisions — see O. Reg. 285/01, ss. 9(1)(g), (e) and (f). For a full discussion about who falls into these student categories, and about the relevant exemptions, see O. Reg. 285/01, s. 7 under the heading “Students”.

Superintendent, janitor or caretaker – s. 4.1(d)

Section 4.1 was added to O. Reg. 285/01 effective January 1, 2019. Pursuant to s. 4.1(d), a person employed as a superintendent, janitor or caretaker of a residential building who resides in the building is exempt from the three hour rule found in Part VII.1, section 21.2 of the Employment Standards Act, 2000.

Please refer to O. Reg. 285/01 s. 4 for a discussion about employees who fall into these categories and for information regarding additional exemptions for these employees.

Section 5 – Rules re minimum wage

Minimum wage rates – pre-January 1, 2018 ss. 5(1) and (3) – Revoked

Until January 1, 2018, subsection 5(1) of O. Reg 285/01 as amended by O. Reg 31/14 had prescribed the minimum wage rates that were required to be paid pursuant to paragraph 1 of ESA Part IX, s. 23(1), effective June 1, 2014. However, from October 1, 2015 onwards, the minimum wage rates were no longer prescribed by regulation. Rather, the minimum wage rates in effect immediately before October 1 in each year were to be adjusted in accordance with the formula set out in ESA Part IX, s. 23.1(4). (The Stronger Workplaces for a Stronger Economy Act, 2014 (“SWSEA”), S.O 2014, c. 10 added s. 23.1 to the ESA 2000.)

The Fair Workplaces Better Jobs Act, 2017 (“FWBJA”) subsequently amended the SWSEA amendment, which directly tied changes in the minimum wage rates from October 1, 2015 on to changes in the Consumer Price Index through a formula in s. 23.1(4). The FWBJA provided for increases to minimum wage rates to the amounts that were set out in s. 23.1(1) effective January 1, 2018 and January 1, 2019. It had also provided that effective October 1, 2019, the minimum wage rates immediately in effect before October 1 each year were to be adjusted annually by the formula set out in s. 23.1(4).

The Making Ontario Open for Business Act, 2018 (MOOBA) then amended s. 23.1(1) to keep the minimum wages at the January 1, 2018 rates and to delay by one year the date that the annual adjustments are to take effect, changing the date from October 1, 2019 to October 1, 2020.

See ESA Part IX, s. 23.1.

Room and board – s. 5(1)

Section 5(1) sets the amounts deemed to be paid as wages with respect to meals or rooms (private and non-private).

Note that prior to January 1, 2018 this provision appeared in subsection 5(4). As a consequence of the minimum wage rates being moved from this regulation to the Act itself by the MOOBA, this regulation was amended and the subsections were renumbered.

The amounts deemed to be paid as wages under s. 5(1) are used only for the purpose of ensuring that the applicable minimum wage has been paid where the employer seeks to satisfy its minimum wage obligations in part through the provision of room, board or room and board. See O. Reg. 285/01, s. 19 for a discussion of the corresponding provisions that relate to domestic workers. See O. Reg. 285/01, s. 25 for a discussion of the corresponding provisions that relate to fruit, vegetable and tobacco harvesters.

The ordinary meaning of the words "private" and "not private" is applied when determining which value to use. For example, an employee's bedroom is not private if the only access to a laundry room used by the employer is through it - see Flores v Walker and Bassett Walker (July 8, 1998), 2234-97-ES (ON LRB).

Where the employer seeks to satisfy its minimum wage obligations in part through the provision of room, board or room and board, and accordingly pays the employee minimum wage less the amounts deemed to have been paid as wages for room, board or room and board (as the case may be) as set out above, there is no deduction from wages, and hence no written authorization for deduction is required in relation to the room and board amounts.

In some cases, an employer may wish to make a larger deduction in respect of room and board than the amounts set out above, for example where the employee's wages exceed the minimum wage set out in the ESA 2000. However, that would have to be authorized in writing by the employee.

Minimum standards for room and board – s. 5(2)

This provision establishes certain minimum standards of quality for the room the employer provides in order for amounts with respect to that room to be deemed to be paid as wages under s. 5(1). See O. Reg. 285/01, s. 19 for a discussion of the corresponding provisions that relate to domestic workers. See O. Reg. 285/01, s. 25 for a discussion of the corresponding provisions that relate to fruit, vegetable and tobacco harvesters.

Note that prior to January 1, 2018 this provision appeared in subsection 5(5). As a consequence of the minimum wage rates being moved from this regulation to the Act itself by the MOOBA, this regulation was amended and the subsections were renumbered.

First, a room is required to be reasonably furnished. Program policy is that a room is reasonably furnished if it contains a bed, a table, a chair, and a wardrobe or chest of drawers. It must also be reasonably fit for human habitation. The employer must also provide clean bed linen and towels, not necessarily daily, but on a frequent enough basis to maintain the standard of cleanliness. The employee must have reasonable access to toilet and washing facilities. Facilities just across a hall would usually be reasonable; facilities requiring a trip across a field to an outhouse may or may not be, depending, for example, on the location of the place of employment and on the norms in that particular community.

If any of these requirements is not met, the amount set out in s. 5(1) cannot be deemed to be paid as wages in determining whether the minimum wage has been paid.

When room and board deemed paid – s. 5(3)

Section 5(3) provides that the amounts set out in s. 5(1) with respect to room and board cannot be deemed to have been paid unless the room was occupied and the meals were received by the employee. Where the employee has actually received the meals and room, these amounts can be treated as forming part of the wages paid to the employee for the purposes of determining if the minimum wage standard has been met. A written authorization of the employee is not required since the charges, rather than being deductions from wages, form part of the formula for determining the gross wages paid to the employee. These amounts can be deemed to have been paid even though no record of these amounts were shown on the employee's payroll record. See O. Reg. 285/01, s. 19 for a discussion of the corresponding provisions that relate to domestic workers. See O. Reg. 285/01, s. 25 for a discussion of the corresponding provisions that relate to fruit, vegetable and tobacco harvesters.

In Steven Carapiet c.o.b.a. the Fish Tale Lodge v Cayen and Lamothe (February 17, 1986), ESC 2041 (Adamson), Referee Adamson found that amounts could not be deemed to have been paid as wages for the supply of a room for weeks during which the room was not occupied. The parties did not contest the period of occupancy.

There may be some question as to whether meals were in fact provided or a room was in fact occupied. The Program's position is that a room will be considered occupied if the employee lived, slept or stored belongings in the room during the period for which the employer is claiming credit against the minimum wage obligation. For example, although the employee may be away for a specified period (e.g., on vacation), the room will be considered occupied if it is still being used for the storage of the employee's personal belongings while they are absent.

Three hour rule – s. 5(7) (Revoked)

Subsection 5(7) provides for what is commonly referred to as the "three hour rule" which, under certain circumstances, requires three hours' pay at the rate of at least minimum wage, even though the employee has worked less than three hours. Note that employees in the women's coat and suit industry and the women's dress and sportswear industry have special rules that apply instead of s. 5(7) — see O. Reg. 291/01, s. 3.

The circumstances in which s. 5(7) apply are as follows:

  • The employee is not a student
    • Note that "student" in this subsection does not have the same meaning as it has in paragraph 1 of s. 5(1) of this regulation; for the purposes of the three hour rule, student means a student of any age, including students over the age of 18 years;
  • The employee regularly works more than three hours per day
    • Note that the three hour rule has no application if the employee regularly works three hours a day or regularly works less than three hours a day;
  • The employee is required to present themselves for work
    • Note this section will not apply where the employee has reported to work when directed not to do so by the employer, even on a day that is normally a workday; and
  • The employee works less than three hours.

It is immaterial whether the hours are worked on a regular work day or on a day on which the employee does not usually work, provided that they were required to present themselves for work that day.

In other words, the three hour rule may also apply when the employee is called in to work on a day that is not a regular workday, if the employee works less than three hours that day.

Note however that if the employee's schedule includes regularly working more than three hours a day and regularly working three hours a day or less, the application of the three hour rule will depend on whether the day is one where the employee would regularly work more than three hours or one where the employee would regularly work three hours or less.

As an example, assume an employer occasionally schedules staff to attend Saturday morning meetings. Assuming that the employees regularly worked 8 hours a day Monday through Friday, the three hour rule would apply to these occasional Saturday staff meetings. However, if the employer was found to regularly schedule the employees for one hour Saturday morning staff meetings, it would be the Program's position that the three hour rule would not apply to those Saturday shifts/meetings. That is because it is the Program's view that s. 5(7) was not intended to prohibit an employer from having a regular shift schedule that incorporates shifts of less than three hours.

As another example, an employer could establish a shift schedule that has the employee working four hour shifts on Mondays, Wednesdays and Fridays and two hour shifts on Tuesdays and Thursdays. The regularly scheduled Tuesday and Thursday shifts would not trigger the application of the three hour because the employee regularly works less than three hours on those days. Note though that if the employee was not provided with at least three hours of work on a Monday, Wednesday or Friday, the rule would apply.

Where the provision does apply, an employee will be entitled to be paid at least three hours at the minimum wage. The provision does not mean the employee must be paid three hours at their regular rate if it is in excess of the minimum wage. In other words, an employee who is called into work but works less than three hours must receive three hours' pay at minimum wage OR their regular wages for the time actually worked, whichever is greater.

Example 1

Employee:

  • Is not a student, regularly works more than three hours per day and is required to present themselves for work on July 15, 2018;
  • Regular rate is $17.00/hour;
  • Works one hour and is then directed by the employer to leave;
  • Is paid regular rate of $17.00 for one hour's work;
  • Is deemed by virtue of s. 5(7) to have worked three hours for the purpose of determining if minimum wage has been paid.
  • Entitlement is the greater of:
    • Three hours x the minimum wage rate of $14.00 = $42.00; OR
    • One hour x $17.00 = $17.00
    • Balance owing to employee is $42.00 — $17.00 (already paid to employee) = $25.00

Example 2

The same facts as in the first example, but the regular rate is $45.00/hour.

  • Employee was paid $45.00.
  • Entitlement is the greater of:
    • Three hours x $14.00 = $42.00; OR
    • One hour x $45.00 = $45.00
    • Difference of $3.00 ($45.00 - $42.00) to be retained by employee.

When three hour rule does not apply – s. 5(8) (Revoked)

Subsection 5(8) establishes that the three hour rule in s. 5(7) does not apply when certain types of circumstances that are beyond the control of the employer prevent it from providing work to an employee who reports for work.

For this provision to apply, the circumstances described in the section must be responsible for the complete stoppage of an employee's work. If the circumstances only reduce the demand for the employee's services, this provision will not apply and the three hour rule will apply. For example, a severe electrical storm could result in an employer being unable to provide a construction employee with any work and s. 5(8) would therefore apply. The same storm might only reduce the volume of work available for an employee who works in a car wash so that s. 5(8) would therefore not apply.

Section 6 – Minimum wage for wilderness guides

This section was added to O. Reg. 285/01 effective June 3, 2019. It prescribes wilderness guides as a class of employees for the purposes of ESA Part IX, s. 23.1(2) and prescribes a block rate minimum wage for them (which is the same rate that is set pursuant to s. 23.1(1) for hunting and fishing guides)

The specific rate set out in subsection (2) was in place until September 30, 2020.  From October 1, 2020 onwards, the minimum wage applying to this class of employees is adjusted in accordance with ESA Part IX, ss. 23.1(4) – (6).

For information about the definition of wilderness guide, see O. Reg. 285/01, s.1.

Section 7 – Exemptions from Part IX of Act

Students – s. 7(a), (b) and (c)

Employees who fall within clauses (a) through (c) are exempt from the minimum wage provisions of the Employment Standards Act, 2000. They are also exempt from the three hour rule — see O. Reg. 285/01, s. 4.1(a)-(c); the overtime pay provisions — see O. Reg. 285/01, ss. 8(h), (f) and (g), and the public holidays provisions — see O. Reg. 285/01, ss. 9(1)(g), (e) and (f).

Such employees may be employed as:

  • Recreational sports officials and instructors; arts and crafts instructors;
  • Playground leaders to teach and supervise crafts, songs and sports; wading pool supervisors; sports officials to instruct and supervise sports programs; youth centre leaders to instruct and supervise young teens; swimming instructors; a sitter in a private home (this assumes that the sitter is not working as an independent contractor, as in that case the exemption would be irrelevant, as the Act would not even apply to him or her; typically short-term babysitters are independent contractors but in some cases an employment relationship may exist in which case this exemption would apply — see the discussion of the definition of employee at ESA Part I, s. 1 for information on the tests applied in assessing whether there is an employer/employee relationship); and
  • Camp counsellors, lifeguards, kitchen staff, and so on at a camp for children.

Note, however, that where a student’s age and employment fall within the scope of the “wilderness guide” definition, s. 7 does not apply and the special minimum wage rate for wilderness guides applies.

In order for the exemption in s. 7(a) of the regulation to apply, the employer must be able to show that it is a duly-registered charitable institution by showing its registration number under the federal Income Tax Act, R.S.C. 1985, c 1 (5th Supp). If it is not, the exemption will not apply, even if the employer is operating a recreational program that is virtually identical to one operated by a charitable institution. Also, the student's employment must be directly connected with the recreational program, and not, for example, with another portion of the organization's operation, such as general administration or a social assistance program.

Unlike the exemptions under ss. 7(b) and (c), the recreational program in exemption s. 7(a) need not involve children (that is, persons under 18).

Meaning of “employed as a student…”

A "student" is a person who is working full or part-time while in full-time attendance at a primary, secondary or post-secondary institution, or who is working during a holiday period but has the intention of returning to fulltime education at the end of that holiday period. Note that for the purposes of this exemption (as well as the exemptions from the overtime pay provisions — see O. Reg. 285/01, ss. 8(h), (f) and (g) — and the public holidays provisions — see O. Reg. 285/01, ss. 9(1)(g), (e) and (f) - the term "student" is not limited to a person less than 18 years of age. This is in contrast to the use of the word "student" for the purposes of the student minimum wage provisions: the student minimum wage applies to a student (not otherwise exempted from the Act pursuant to s. 3(5) of the act and not exempt from the minimum wage provisions under s. 7 of O. Reg. 285/01) who is under the age of 18 years and 1) does not work more than 28 hours per week while attending school or 2), is employed while on school holiday. For more information on the student minimum wage, please see O. Reg. 285/01, s. 5.

The onus is on the employer seeking to apply any of the exemptions in ss. 7(a), (b) or (c) of O. Reg. 285/01 to confirm that the employee is either in attendance at an educational institution or on a holiday period from an institution.

In order for the exemptions in ss. 7(a), (b) or (c) to apply, the core of the student's employment must fall within the scope of work set out in the provision, though a part of his or her functions may fall outside it. For example, if a student spends 60 per cent of his or her time instructing children and the remaining 40 per cent of her time instructing adults, the exemption in s. 7(b) would apply. The test is where and how the employee spends the majority of their working hours.

Only those employees who are "students", as defined above, are exempt. Other employees, even if performing exactly the same work (e.g., instructing or supervising children, etc.), are not exempt.

Employees who are both students and “wilderness guides”

The phrase “…unless the person is a wilderness guide” at the end of clauses (a) through (c) means that the minimum wage exemption does not apply to employees who are students within the meaning of the first part of clauses (a) through (c) but who also fall within the definition of “wilderness guide” in s. 1 of O. Reg. 285/01. In that case, the employee will be subject to the special minimum wage “block rate” that applies to wilderness guides pursuant to s. 6 of O. Reg. 285/01.

Since the definition of “wilderness guide” specifically excludes a student under 18 years of age who works 28 hours each week or less or who is employed during a school holiday, such a student cannot be a “wilderness guide” and therefore will not be subject to the wilderness guide special minimum wage.

Superintendent, janitor or caretaker – s. 7(d)

7 Part IX of the Act does not apply to,

  1. a person who is employed as the superintendent, janitor or caretaker of a residential building and resides in the building.

A person employed as superintendent, janitor or caretaker of a residential building who resides in the building is exempt from the minimum wage provisions of the Act. Please refer to O. Reg. 285/01, s. 4 for further information regarding additional exemptions for these employees.

Section 8 – Exemptions from Part VIII of Act

Exemptions from overtime – ss. 8(a) to (j), (l)

Please refer to the following sections for a discussion of the exemptions in s. 8 of O. Reg. 285/01:

Ambulance driver, ambulance driver's helper or rirst-aid attendant – s. 8(k)

An ambulance driver, ambulance driver's helper or a first-aid attendant on an ambulance is exempt from the overtime pay provisions of the Employment Standards Act, 2000.

Compliance with the criteria set out in the definition of ambulance under the Ambulance Act, R.S.O. 1990, c A.19 is not determinative of whether a person is an ambulance driver, ambulance driver's helper or first-aid attendant on an ambulance or whether the conveyance used for the transportation of persons is an ambulance for the purposes of the ESA 2000. See Direct Care Patient Transfer Inc. v Clarke, 2000 CanLII 12519 (ON LRB).

When determining if the exemption applies, it must be established whether the nature of the service and the transportation used is either an ambulance service (i.e., for medical emergencies where the exemption would apply) or a non-ambulance medical transfer service (in which case the exemption would not apply). There are several factors that may assist in making this determination. They include:

  • Are the people being transported in stable medical condition?
  • Are the employees trained and authorized to administer drugs or medical assistance?
  • Are the vehicles being used equipped with drugs or medical equipment
  • Are the vehicles being used equipped with sirens or emergency lights that are operational? If so, are they allowed to be used?
  • Are the employees required to be licensed as level 1 paramedics who can be required to administer certain drugs and operate a defibrillator?
  • If there is an emergency during a transfer, are the employees are required to call 911 and wait for an ambulance to deal with the medical emergency?

For further discussion, see the Ontario Labour Relations Board's decision in King v RNR Patient Transfer Services Inc., 2008 CanLII 22 (ON LRB).

Section 9 – Exemptions from Part X of Act

Exemptions to public holidays – ss. 9(1)(a) to (i)

Please refer to the following sections for a discussion of the exemptions from the public holiday provisions of the Employment Standards Act, 2000 set out in  O Reg 285/01, s. 9:

  • Firefighters – s. 9(1)(a): O Reg 285/01, s. 4(1)(a)
  • Hunting and fishing guides – s. 9(b): O Reg 285/01, s. 4(1)(c)
  • Wilderness guides – s. 9(b): O Reg. 285/01, s. 1
  • Landscape gardeners – s. 9(c)(i): O Reg 285/01, s. 4(2)(a)
  • Swimming pool installation and maintenance – s. 9(c)(ii): O Reg 285/01, s. 4(2)(b)
  • Mushroom growers – s. 9(d)(i): O Reg 285/01, s. 4(3)(a)(i)
  • Flower growers – s. 9(d)(ii): O Reg 285/01, s. 4(3)(a)(ii)
  • Growing, transporting and laying sod – s. 9(d)(iii): O Reg 285/01, s. 4(3)(a)(iii)
  • Tree and shrub growers – s. 9(d)(iv): O Reg 285/01, s. 4(3)(a)(iv)
  • Horse breeders and boarders – s. 9(d)(v): O Reg 285/01, s. 4(3)(a)(v)
  • Furbearing mammal keepers – s. 9(d)(vi): O Reg 285/01, s. 4(3)(a)(vi)
  • Students who instruct or supervise children – s.  9(e): O Reg 285/01, s. 7(b)
  • Students at camps for children – s. 9(f): O Reg 285/01, s. 7(c)
  • Students in recreational programs operated by charitable organizations – s. 9(g): O Reg 285/01, s. 7(a)
  • Residential superintendents, janitors or caretakers – s. 9(h): O Reg 285/01, s. 4(1)(e)
  • Taxi cab drivers – s. 9(i): O Reg 285/01, s. 1 re definition of taxi cab

Seasonal employee in hotel, motel, resort, etc. – s. 9(1)(j)

A seasonal employee in a hotel, motel, tourist resort, restaurant or tavern who is provided with room and board is exempt from the public holiday provisions of the Act. See O Reg 285/01, s. 1 for a discussion of the definition of "seasonal" as well as "hotel, motel, tourist resort, restaurant or tavern".

Construction employees – s. 9(2)

Construction employees who work in the construction industry are exempt from the public holiday provisions of the Act if their period of employment is less than five years and they receive 7.7 per cent or more of their hourly rate or wages for vacation pay or holiday pay. If their period of employment is equal to or greater than five years, they are exempt if they receive 9.7 per cent or more of their hourly rate or wages for vacation pay or holiday pay. See O Reg 285/01, s. 1 for the definition of “construction employee” and “construction industry”.

The percentages are based on the Act's four per cent and six per cent vacation pay entitlements plus a percentage calculated on the basis of nine days of public holiday pay per year for an employee who regularly works five days a week.

Section 9.1 – Exemptions from Part XII of Act

Section 9.1 of O. Reg. 258/01 was revoked effective January 1, 2019 pursuant to a regulatory amendment.  This section is therefore no longer in force. 

Section 9.1 set out employees who were exempt from the application of section 42.1 of the ESA, 2000 (the “equal pay for equal work: difference in employment status” provision).  Section 42.1 of the ESA, 2000 was repealed effective January 1, 2019 as a result of the Making Ontario Open for Business Act, 2018.

Since employees may still file a complaint relating to section 42.1 that arose during the period of time when that section was in force — from April 1, 2018 to December 31, 2018 — the Program’s interpretation of section 9.1 (establishing the exemptions that applied to s. 42.1 during the relevant period) remains as part of this publication.

Exemptions to section 42.1 of the Act – s. 9.1

Firefighters – s. 9(1)(a)

Firefighters, as defined in s. 1 of the Fire Protection and Prevention Act, 1997, are exempt from s. 42.1 of the ESA. Section 42.1 prohibits employers from paying employees who perform “equal work” different rates of pay on the basis of a difference in employment status, subject to certain exceptions. 

Section 1 of the FPPA defines a firefighter as follows:

The exemption from section 42.1 will therefore also apply to fire chiefs and volunteer firefighters.

Students – s. 9(1)(b)

Students who are under the age of 18 and who work 28 hours or less per week or who are employed during a school holiday, are exempt from s. 42.1. Section 42.1 prohibits employers from paying employees who perform “equal work” different rates of pay on the basis of a difference in employment status, subject to certain exceptions.

Recorded visual and audio-visual entertainment production industry – s. 9(1)(c)

Employees who work in the recorded visual and audio-visual entertainment production industry are exempt from s. 42.1 of the ESA.  Section 42.1 prohibits employers from paying employees who perform “equal work” different rates of pay on the basis of a difference in employment status, subject to certain exceptions.

“Recorded visual and audio-visual entertainment production industry” is defined in section 1 of O Reg 285/01 as follows:

Section 10 – Application of s. 73 of Act

Retail business establishment – s. 10(1)

Subsection 10(1) creates an exception to the provisions of s. 73 of the Employment Standards Act, 2000. Under s. 73(2), an employee of a retail business establishment may refuse to work on a Sunday. Under the exception established by s. 10(1) of the regulation, an employee who agreed at the time of hire to work on Sundays may not subsequently avail themselves of the right to refuse Sunday work. It is Program policy that this exemption can apply only to employees who were hired on or after September 4, 2001, based on the presumption against retroactive application. Thus, employees hired before September 4, 2001, still have the right to refuse Sunday work and the right not to be punished for refusing. (Also, see discussion of s. 10(2) below.)

Religious belief or observance – s. 10(2)

Subsection 10(2) provides that s. 10(1), which precludes employees of a retail business establishment from refusing Sunday work where they have agreed to it at the time of hire, does not apply where an employee refuses Sunday work for reasons of religious belief or religious observance. Thus, an employee who was hired on or after September 4, 2001 and who had agreed at the time of hiring to work on Sundays would be able to subsequently refuse to work on Sundays for reasons of religious belief or religious observance.

Human Rights Code – s. 10(3)

Section 11 of the Ontario Human Rights Code, RSO 1990, c H.19 (the "Code") deals with constructive discrimination (also known as "adverse effect" discrimination). It reads as follows:

Section 11 of the Human Rights Code addresses rules or practices that, although not among the specific, prohibited grounds of discrimination set out in Part I of the Code, result in unequal treatment of a particular person or group against whom the Code prohibits discrimination. This type of unintentional discrimination is known as "constructive" or "adverse effect" discrimination. In other words, the Code prohibits practices that have a discriminatory effect, even if they are not expressly or intentionally discriminatory. Therefore, if an employer's policy is not to hire any person who refuses to work on Sundays and such employer will make no exception for those whose religious beliefs or observance practices prevent them from working on Sundays, this may violate the Code.

Subsection 10(3) prohibits an employer from making an employee's agreement to work on Sunday a condition of employment if by so doing a violation of s. 11 of the Code would occur.

Section 11 – Homemakers

Definition of homemaker – s. 11(1)

Section 11 defines the term homemaker. There are three basic elements to the definition, as follows:

Performs homemaking services

There is no definition of "homemaking services" within the Employment Standards Act, 2000. However in a decision under the former Employment Standards Act, Re Service Employees International Union, Local 204 and Community Services to Jewish Elderly o/a Senior Care, an adjudicator considered it appropriate in the circumstances to look at the definition of homemaking services as defined in Reg 634, RRO 1990 made under the Homemakers and Nurses Services Act, RSO 1990, c H.10. This regulation defines homemaking services as meaning housekeeping services including:

  • Care of a child or children;
  • Meal planning, marketing and preparation of nourishing meals, and the preparation of special diets where required;
  • Light, heavy and seasonal cleaning;
  • Light laundry, ironing and essential mending of clothing;
  • Personal care, including assistance in walking, climbing or descending stairs, getting into or out of bed, eating, dressing, bathing and other matters of personal hygiene;
  • Simple bedside care, where required, under the direction of a physician or nurse, but not including nursing services; and
  • Training and instruction in household management and the care of children.

It is Program policy that an employee providing such services is providing homemaking services. Services that are not listed in Reg 634 may also be considered to be homemaking services for the purposes of s. 11, such as providing care to an adult or adults.

Note that a homemaker is not a homeworker — see ESA Part I, s. 1 for the definition of homeworker.

Performs these services in the householder’s private residence

If the person is performing the services in a non-private institution, the section will not apply. For example, cleaners in retirement homes are not homemakers

Employed by a person other than the householder

This refers to the situation in which a householder contracts with a business to have an employee of that business come into their house to perform homemaking services. In contrast, a domestic worker, while performing similar duties, is employed by the householder directly.

Refer to O Reg 285/01, s.1 for a discussion of domestic workers.

Minimum wage – s. 11(2)

Section 6 of O Reg 285/01 establishes when work is deemed to be, or not to be, performed (and so establishes the hours for which an employee must normally be paid at least the minimum wage and overtime pay). When such rules are applied to a homemaker, it may turn out that the homemaker has worked more than 12 hours in a day. However, s. 11(2) of the regulation states that despite the fact that a homemaker works or is deemed to have worked more than 12 hours in a day, they are entitled to be paid the minimum wage for only 12 hours. For example, even if they worked 14 hours in a day, they need only be paid for 12 hours.

In other words, a homemaker is entitled to be paid at least the minimum wage for no more than 12 of the hours they work. There is effectively a cap on what the employer must pay, although the employer is not prohibited from paying more.

Homemakers are not exempted from the application of the minimum wage provisions. If a homemaker works 12 hours or fewer, the homemaker must be paid at least minimum wage calculated with reference to the number of hours worked and if the homemaker works more than 12 hours, the homemaker must be paid at least the minimum wage for 12 hours of work. If the employer pays the homemaker as per the preceding sentence, the homemaker will be considered to be paid in accordance with s. 11(2) and the limits on hours of work will not apply, by virtue of s. 11(3).

Exemption to Parts VII and VIII – s. 11(3)

The general rules regarding hours of work and eating periods in ESA Part VII and overtime pay in ESA Part VIII, as well as the requirement in paragraph 4 of ESA Part VI, s. 15(1) to keep a record of daily and weekly hours, do not apply to homemakers if the employer complies with s. 11(2), i.e., if the employer pays the employee at least the minimum wage for all hours worked in a day to a maximum of 12. If s. 11(2) is not complied with, then both Parts VII and VIII and paragraph 4 of s. 15(1) will apply. The homemaker's hours of work will be subject to the limits set out in Part VII, and they will be entitled to rest and eating periods, overtime pay and the daily and weekly hours record-keeping requirements.

Section 12 – Homeworkers

This provision is similar in effect to s. 13.1 of Reg 325 under the former Employment Standards Act.

Section 12 requires that the employer notify the homeworker in writing of the type of work that he or she is being employed to perform and the rate of pay, whether the basis for the rate is hourly, piecework or some other method, and of any completion deadlines.

These special rules concerning the employment of homeworkers are in addition to the special record-keeping requirements for employers of home-workers, which are set out in s. 15(2) of the Employment Standards Act, 2000. A definition of “homeworker” appears in s. 1 of the Act. Please ESA Part VI and ESA Part I for a discussion of the Act’s general record-keeping requirements, and the definition of “homeworker”, respectively.

Section 13 – Road building

Higher overtime threshold – ss. 13(1) & (2)

Section 13 of O Reg 285/01 establishes a higher overtime threshold for employees engaged at the site of road building. Employees engaged at the site of road building in relation to streets, highways or parking lots are entitled to overtime pay for each hour of work in excess of 55 in a "work week". Employees engaged at the site of road building in relation to structures such as bridges, tunnels or retaining walls in connection with streets or highways are entitled to overtime pay for each hour of work in excess of 50 in a "work week".

Mixed threshold work

If an employee in a "work week" is engaged at the site of road building in both types of work - work to which the 55-hour threshold applies and work to which the 50 hour threshold applies, consistent with s. 22(9) - it is Program policy that the employee receives overtime pay, in respect of all work performed in a given "work week", in accordance with the lower overtime threshold if he or she performs work that attracts the lower overtime threshold 50% or more of the time in any given "work week".

The meaning of road building – s. 1

The special overtime thresholds in s. 13 apply if the employee is engaged at the site of "road building", whether he or she is engaged in the activity of "road building" or not.

"Road building" is defined in s. 1 of O Reg 285/01 as follows:

"Road building" includes road maintenance activities, such as snow ploughing and sanding, as well as work that is incidental to road building (if performed at the road building site), such as surveying and the repair or servicing of road building equipment.

"Road building" is considered by the Program to include the construction of secondary roads, e.g., logging roads, as well as streetcar tracks. It is also Program policy that railroad construction falls within the definition of "road building" - see Deckert-Dancy & Associates (Eastern) Ltd. v Ontario Ministry of Labour (July 23, 1973), ESC 38 (Fram).

The following activities have been held not to constitute road building:

As indicated above, to be subject to the special overtime thresholds in s. 13, the employee's work must be at the road building site, but it is not necessary that the employee be himself or herself engaged in road building or that the employer be in the road building industry. For example, a flag person employed by a security firm who works at the site of road-building will be subject to the special road building overtime threshold. Note, however, that a flag person is not himself or herself engaged in road building; as a result, the notice of termination and severance pay exemptions that apply to construction employees would not apply to such a flag person.

It should also be noted that the Program takes the position that employees of employers in the crushed stone quarry and sand and gravel industry (other than office workers not employed at the plant site) will be considered to be engaged at the site of road building and subject to the special overtime threshold in s. 13(1) if more than 50% of the output of the employer's plant consists of materials destined for use in road building.

The Program also takes the position that employees of employers in the asphalt paving-mix industry (except office workers not employed at the plant site) will be considered to be engaged at the site of road building and subject to the special overtime threshold in s. 13(1) if the output of the employer's plant is destined for use in the road building industry.

Carry forward provisions – s. 13(1)(b) and s. 13(2)(b)

This section of O Reg 285/01 provides that where hours worked are less than the thresholds established in s. 13(1)(a) and s. 13(2)(a), the difference between hours worked in that "work week" and the relevant threshold up to a total of 22 hours, may be added to the threshold in the "work week" immediately following, in order to determine what, if any, overtime pay is payable in the following week.

Example 1: Section 13(1)(b) 55-hour overtime threshold

Assume the employee works the following hours:

  • Week 1 = 48 hours
  • Week 2 = 65 hours
  • Week 3 = 45 hours

If an employee is engaged in road building in relation to streets, highways and parking lots, the 55-hour threshold in s. 13(1)(a) of O Reg 285/01 applies. In the above example, the 48 hours worked during Week 1 are payable at the "regular rate". There is also a carry forward time of seven hours as per s. 13(1)(b) (being the 55-hour threshold less 48 hours actually worked). As a result, in Week 2, overtime will not be triggered until the employee works more than 62 hours (the 55 hours plus the 7 hours carried forward). In Week 2, the 55 hour-threshold plus the 7-hour carry-forward are payable at straight time and only 3 hours are payable at the overtime rate.

The "carry forward" relief provided under s. 13(1)(b) only operates to reduce the overtime pay payable with respect to the following work week, not the previous work week. For example, the 10-hour difference between the 55-hour overtime threshold and the 45 hours worked in Week 3 cannot be "carried back" to Week 2 - they can only be carried forward to Week 4.

Example 2: Section 13(2)(b) – 50-hour overtime threshold

Assume the employee works the following hours:

  • Week 1 = 48 hours
  • Week 2 = 65 hours
  • Week 3 = 45 hours

If an employee is engaged in road building in relation to structures such as bridges, tunnels or retaining walls, the 50-hour threshold in s. 13(2)(a) of O Reg 285/01 applies. In the above example, the 48 hours worked during Week 1 are payable at the "regular rate". There is also a carry forward time of two hours as per s. 13(2)(b) (being the 50-hour threshold less 48 hours actually worked). As a result, in Week 2, overtime will not be triggered until the employee works more than 52 hours (the 50 hours plus the two hours carried forward). In Week 2, the 50-hour threshold plus the 2-hour carry forward are payable at straight time and 13 hours are payable at the overtime rate.

The "carry forward" relief provided under s. 13(2)(b) only operates to reduce the overtime pay payable with respect to the following work week, not the previous work week. For example, the 5-hour difference between the 50hour overtime threshold and the 45 hours worked in Week 3 cannot be "carried back" to Week 2 - they can only be carried forward to Week 4.

Only the maximum permissible carry forward of 22 hours can be brought forward to the immediately following calendar week. This is so notwithstanding that there was a discrepancy of more than 22 hours between the actual hours worked and the overtime threshold of 55.

Section 14 – Hotels, motels, tourist resorts, restaurants and taverns

Section 14 of Regulation 285/01 provides for a special threshold of 50 hours for an employee who meets all of the following criteria:

  1. The employee works for the owner or operator of a hotel, motel, tourist resort, restaurant or tavern.
  2. The employee does not work more than 24 weeks in a calendar year for a single employer (note: these weeks need not be consecutive).
  3. The employee is provided with room and board.

Each criterion is discussed below.

  1. The employee works for the owner or operator of a hotel, motel, tourist resort, restaurant or tavern.

Hotel, motel, tourist resort, restaurant and tavern are defined in s. 1 of O Reg 285/01 as follows:

  1. The employee does not work more than 24 weeks in a calendar year for a single employer (note: these weeks need not be consecutive).

Where an employee (who works for the owner or operator of a hotel, motel, etc., and is provided with room and board) is hired with the intention that the employee's employment will not exceed 24 weeks, but in fact the employee does work more than 24 weeks, he or she does not fall under this provision. If he or she had been paid an overtime premium based on this section’s threshold, he or she must in fact be paid retroactively the balance owing, based on the overtime premium due after 44 hours worked in a "work week".

  1. The employee is provided with room and board.

For a discussion as to whether an employee is considered to have been provided with room and board, refer to O Reg 285/01, s. 5.

Section 15 – Fresh fruit and vegetable processing

Section 15 provides a special overtime threshold of 50 hours for employees who meet the criteria set out in the section. The criteria are:  

  1. The employee is a seasonal employee; and
  2. The employee's employment is directly related to the canning, processing, and packing of fresh fruit or vegetables or the distribution thereof by the canner, processor, or packer.

In addition, note that employees who are employed on a farm and whose employment is directly related to the packing of fresh fruit or vegetables or their distribution by the packer may — depending on the circumstances — be subject to the “primary production” exemptions (including from the overtime pay standard) pursuant to s. 2(2) of O Reg 285/01 rather than to the special overtime threshold set out in s. 15. See the heading Interplay Between s. 15 and s. 2(2) of O. Reg. 285/01 below for a discussion of this issue.

1. The employee is a seasonal employee

Seasonal employee is defined in s. 1 of O Reg 285/01 as follows:

The weeks of employment in the calendar year need not be consecutive for the purposes of this section.

Where an employee (whose employment is directly related to the canning, processing and packing of fresh fruits or vegetables or their distribution by the canner, processor or packer) is hired with the intention that the employment will not exceed 16 weeks in a calendar year, but in fact does work more than 16 weeks, the employee does not fall under this section. If the employee had been paid an overtime premium during the first 16 weeks of employment in a calendar year based on this subsection's threshold, the employee must be paid retroactively the balance owing, based on the overtime premium due after 44 hours worked in a work week.

2. The employee's employment is directly related to the canning, processing, and packing of fresh fruits or vegetables or the distribution thereof by the canner, processor, or packer.

The employee's employment must be directly related to the canning, processing or packing of fresh fruits or vegetables, or their distribution by the canner, processor, or packer. 

It is not necessary that the employer be in the industry for the special overtime threshold in s. 15 to apply. Thus, a temporary help agency that provides assignment employees to a processing plant could pay the overtime premium after 50 hours (as opposed to after 44) in a work week, as long as the assignment employees’ employment was directly related to the canning, processing, packing or distribution of fresh fruit or vegetables.

Note, however, that when it comes to the “distribution” of the canned, processed or packed fresh fruit or vegetables, the special overtime threshold in s. 15 will not apply to employees of a trucking company that has been engaged by the canner, processor or packer to distribute the product.  This is because s. 15 applies if the distribution is “by” the canner, processor, or packer. In this case, the special overtime thresholds for local cartage or highway transport may apply to the employees engaged in the distribution – see ss. 17 and 18 of O. Reg. 285/01 for details.)

The general overtime threshold will be applicable to a re-processing of the fruits or vegetables. For example, where fresh strawberries are frozen and then re-processed to make jam, the special overtime threshold (i.e., 50 hours) applies to the initial processing (freezing) and the general overtime threshold (i.e., 44 hours) will apply to the re-processing (making jam).

Interplay between s. 15 and s. 2(2) of O. Reg. 285/01

Where employees are engaged in the packing of fresh fruits and vegetables and the distribution/transportation of these fresh commodities, questions may arise as to the interplay between this provision and the “primary production” exemption found in subsection 2(2) of O Reg 285.  This is because the packing of fresh fruits and vegetables and the transport of these commodities are “pre-transformation” activities, such that the work meets the “primary production” criterion under ss. 2(2). 

(Note that this same question does not arise in respect of employees engaged in “canning” and “processing” fresh fruits and vegetables and in the transport of these processed/canned commodities by the canner or processor since these are “post-transformation” activities and, as such, do not meet the “primary production” criterion of ss. 2(2)). 

Whether or not an employee engaged in the packing or distribution of fresh fruit or vegetables falls under the ss. 2(2) exemption depends on whether the employee is employed “on a farm”.  What is “a farm” for the purposes of the ss. 2(2) exemption was established by the Ontario Superior Court in the Rouge River decision (Rouge River Farms Inc. v. Director of Employment Standards and Ontario Labour Relations Board, 2019 ONSC 3498); a farm may include, for example, industrial buildings used to carry out post-harvest production activities so long as the tracts of land where the produce was grown and the industrial buildings where the produce is packaged are worked or managed by the same farmer.  Please see here for a detailed discussion of the ss. 2(2) exemption.

Where the exemption in ss. 2(2) applies to an employee, the employee is exempt from the overtime standard and therefore s. 15 does not apply.  If an employee does not fall within ss. 2(2) (e.g. because the employee is not employed on “a farm”) but does fall within s. 15, the employee is subject to the special overtime threshold of 50 hours per week.  The following example helps to illustrate this distinction.

Seasonal employee A works in an industrial facility shucking corn and packing fresh corn cobs onto styrofoam trays.  Depending on the circumstances, this activity could fall under ss. 2(2) or under s. 15. 

Scenerio A:

If the packing facility is a “farm” because it is owned and/or managed by the same farmer on whose land the corn was grown, the exemption in s. 2(2) would apply to seasonal employee A. That is because this employee would meet ss. 2(2) criteria:

  1. The employee is employed on a farm,
  2. The employee engages directly with the agricultural product through “hands on work”,
  3. The employee’s work occurs at a stage in the growing or production of the commodity that precedes a transformation in its form or state, and
  4. The agricultural product in question (corn) is a commodity that is specified in ss. 2(2) (i.e. “vegetable”).

As such, this employee would be exempt from the overtime standard (and subject to other exemptions pursuant to ss. 2(2)).

Scenerio B:

If the packing facility is not owned and/or managed by the farmer (in other words the facility is not part of an enterprise involved in producing the corn) — e.g. the packing facility is owned by “Veggie Packers Inc.” — then the employee would not be “employed on a farm”.  As such, the exemption in ss. 2(2) would not apply.  This is the case even if all of the vegetables that “Veggie Packers Inc.” packs are from a single farmer. Given that the employee in this example is a seasonal employee whose work is directly related to the packaging of fresh vegetables, section 15 would apply and this employee would be subject to an overtime threshold of 50 hours. 

Section 16 – Sewer and watermain construction

Section 16 of O Reg 285/01 provides for a special overtime threshold of 50 hours for employees involved in:

  1. Laying, altering, repairing or maintaining sewers and watermains and work incidental thereto; or
  2. Guarding the site during the laying, altering, repairing or maintaining of sewers and watermains.

The critical requirement for this threshold to apply relates to the type of work that the employee is performing. It is not essential that the employer be in the sewer and watermain construction industry. For example, this section would still cover a security guard or driver employed in this work, notwithstanding that his or her employer is a security firm or temporary help agency.

Sewers and watermains are those conduits installed for the movement of sewage or water and are typically found in publicly owned places or in easements. It is Program policy that:

  • A lateral from a sewer or watermain to a private dwelling or a commercial building is part of the sewer or watermain system;
  • Farm tile drainage is considered to be watermain construction;
  • Plumbing work normally performed by a plumber is not subject to this special overtime threshold;
  • Sprinkler system installation or repair are not subject to this special overtime threshold; and
  • The installation of septic systems is not subject to this special overtime threshold.

On this last point, see 1496161 Ontario Inc. (Todd Grier Excavating) v Ontario (Employment Standards), 2009 CanLII 33900 (ON LRB), where the Ontario Labour Relations Board held that a septic system is not a "sewer" because the defining characteristic of the term "sewer" is that it is a conduit or channel for the movement of waste, while the core of a septic system is the septic tank — a holding tank that is neither a channel nor a conduit for the movement of waste. The Board also noted that "sewers" exist as part of an intricately connected system to move waste from various sources, as contrasted with a septic system’s self-contained, on-site nature. The Board also observed that even if there was ambiguity about whether septic systems are captured by the word "sewers", the Board, in accordance with Machtinger v HOJ Industries Ltd., [1992] 1 SCR 986, 1992 CanLII 102 (SCC) and Re Blais is to construe an exemption’s applicability narrowly, and to prefer an interpretation that extends the protections of the Employment Standards Act, 2000 over an interpretation that does not.

Section 17 – Local cartage

Section 17(1) of O Reg 285/01 creates a special overtime threshold of 50 hours in a work week if the following criteria are met:

  1. The employee is the driver or driver's helper of the vehicle;
  2. The vehicle is in the business of carrying goods for hire; and
  3. The vehicle carries goods within a municipality or to any point not more than five kilometres beyond the municipality's limits.

Each criterion is discussed below.

  1. The employee is the driver or driver's helper of the vehicle.

This threshold only applies to the driver or driver's helper, not to someone simply employed to maintain the vehicle.

If a person was employed to drive the vehicle, but also did some maintenance work as part of his or her duties, s. 17 would still be operative as long as that work was merely incidental to his or her employment as a driver. However, if he or she spent the majority of his or her working hours maintaining one or more vehicles, s. 22(1) of the Employment Standards Act, 2000 and the 44-hour threshold would then apply.

  1. The vehicle is used in the business of carrying goods for hire.

If the vehicle is carrying the employer's own goods, the general threshold of 44 hours, as opposed to the local cartage threshold of 50 hours, will apply.

The carrying of goods for hire includes waste cartage and disposal, septic tank contents cartage and disposal, and courier services (including bicycle and other vehicle courier services).

  1. The vehicle must not carry goods for hire further than five kilometers beyond the municipality’s limit.

If a vehicle is at any time carrying goods for hire more than five kilometres beyond the municipality, it would have been required to be licensed under the former Truck Transportation Act, (TTA) RSO 1990, c T.22 and would consequently be subject to the special overtime threshold set out in s. 18 of O Reg 285/01.

It is Program policy that the smallest area of municipal organization will constitute the “municipality” for the purposes of section 17.  This is relevant in situations where, for example, there is an “upper tier” municipality (for example, the Regional Municipality of Peel) and a “lower tier” municipality within the “upper tier” municipality (for example, the City of Brampton).  In this example, the City of Brampton would be treated as the municipality for the purposes of section 17.  (Note this interpretation is consistent with interpretation of “local municipality” that was applied in practice under the former TTA and that consequently informs the special rule set out in s. 18 of this regulation.)

Section 18 – Highway transport

Overtime threshold - s. 18(1)

Section 18(1) creates a special overtime threshold of 60 hours for employees described in s. 18(2). Generally, the 60-hour threshold applies with respect to truck drivers who are engaged in hauling goods on a "for-hire" basis. Such employees must be paid at least one and one-half times their regular rate of pay for all hours in excess of 60 per week.

Prior to January 1, 2006, the 60-hour threshold in s. 18 generally applied to employees who were drivers of public trucks operated by holders of operating licenses issued under the former Truck Transportation Act, RSO 1990, c T.22 ("TTA"), which was repealed effective January 1, 2006. Section 18 of O Reg 285/01 was therefore replaced with a new s. 18 (filed February 6, 2006) that reflected the repeal of the TTA, but the scope of the new s. 18 is intended as much as possible to be the same as the scope of its predecessor.

Note that pursuant to subsection 18(5), s. 18(1) does not apply to an employee to whom s. 17 of O Reg 285/01 applies.

Application of subsection (1) – s. 18(2)

Under s. 18(2), the 60-hour threshold applies to an employee who is a driver of any of the three following categories of trucks:

  1. A truck whose operator held an operating license under the former Act on December 31, 2005 - s. 18(2) para. 1

The 60-hour threshold in s. 18(1) will apply if the operator held an operating license under the former TTA on December 31, 2005.

  1. A truck whose operator held a certificate of intercorporate exemption under the former Act on December 31, 2005, if after that date the truck is operated to carry, for compensation, goods of another person who is not an affiliated corporation under the former Act, such that the operator would be required to hold an operating license under the former Act if it were still in force - s. 18(2) para. 2.

This paragraph provides that, subject to s. 18(3), if an operator held a certificate of intercorporate exemption (CIE) footnote 8 under the TTA on December 31, 2005, the 60-hour threshold applies if, after that date, the operator carried goods for compensation for a person other than an affiliated corporation, such that the operator would be required to hold an operating license if the former TTA were still in force. In other words, if the operator now hauls goods on behalf of anyone other than its corporate affiliates and "would have been required to hold an operating license" under the former TTA the 60-hour threshold will apply, subject to s. 18(3) — see the discussion below.

  1. A truck that is operated to carry the goods of another person for compensation, if the operator,
    1. Did not hold an operating license or a certificate of intercorporate exemption under the former Act on December 31, 2005, and
    2. Would be required to hold an operating license under the former Act if it were still in force - s. 18(2) para. 3

Subject to s. 18(4), if the operator held neither an operating license nor a certificate of intercorporate exemption on December 31, 2005, the 60-hour threshold applies if the operator would be required to hold an operating license under the former TTA, if it were still in force. See the discussion of s. 18(4) below. 

Exemptions to licensing under the former TTA – s. 18(2) para. 2 and subpara. 3(ii)

18(2) Subsection (1) applies to an employee who is the driver of any of the following:

  1. A truck whose operator held a certificate of intercorporate exemption under the former Act on December 31, 2005, if after that date the truck is operated to carry, for compensation, goods of another person who is not an affiliated corporation under the former Act, such that the operator would be required to hold an operating licence under the former Act if it were still in force.
  2. A truck that is operated to carry the goods of another person for compensation, if the operator,
    1. did not hold an operating licence or a certificate of intercorporate exemption under the former Act on December 31, 2005, and
    2. would be required to hold an operating licence under the former Act if it were still in force.

These provisions set out exemptions to licensing under the former TTA that apply in considering whether an operator would be required to hold an operating license under the former TTA if it were still in force.

When determining whether an operator "would be required to hold an operating license" under the former TTA, if it were still in force, as required under para. 2 of s. 18(2) and subpara. 3 ii of s. 18(2), consideration must be given to the classes of goods being hauled.

Although the former TTA required an "operating license" in most cases where goods were carried on a "for-hire" basis, a license was not required if, for example, the operator was hauling the following classes of goods (see s. 3(4) of the former TTA):

  • Fresh fruit and vegetables grown in the continental United States or Mexico;
  • Certain primary agricultural products, provided the truck is a three-axel vehicle (or smaller) with no trailer (see STCC footnote 9 number 01 1 — field crops, 01 2 — fresh fruits or tree nuts, 01 3 — fresh vegetables, 01 91 — horticultural specialties, 01 99 — farm products, not elsewhere classified in the STCC, 01 41 — livestock and 01 92 — animal specialties);
  • Fresh, unprocessed milk (see STCC number 01 421 10) and bulk fluid milk, skim milk or cream (see STCC number 20 261) carried on behalf of the Ontario Milk Marketing Board;
  • Wheat, where the vehicle operator is an agent for the Ontario Wheat Producers' Marketing Board;
  • Ready mixed concrete;
  • Certain primary forest or raw wood materials (see STCC number 24 1); and
  • Goods that are carried as part of the operator's primary business where the primary business is not carrying goods "for-hire" (e.g., a carpentry business moves materials between a hardware store and the building site in addition to performing carpentry work; the carpentry company moves the goods on behalf of the owner of the building project, but its main business is carpentry, not carrying goods "for-hire").

Section 18 does not apply to an operator described in paragraphs 2 or 3 of s. 18(2) if the operator exclusively hauls any or all of the goods listed above. However, if the operator also hauls non-excluded classes of goods, the 60-hour overtime threshold will apply.

Application of s. 3(6) of the former TTA – s. 18(3)

Subsection 18(3) provides that for the purposes of para 2. of ss. 18(2), 3(6) of the former TTA does not apply. Under that section, operators holding a trip permit footnote 10 were not required to hold an operating license under the former TTA. As a result, when determining whether the operator would be required to hold an operating license under the former TTA in accordance with para. 2 of s. 18(2), the fact that the operator may or may not have been eligible for a trip permit under the former TTA is not a relevant consideration.

Application of s. 3(5) & (6) of the former TTA – s. 18(4)

Subsection 18(4) provides that for the purposes of determining whether subparagraph 3 ii of s. 18(2) applies, neither s. 3(5) nor s. 3(6) of the former TTA apply. In other words, whether or not the operator would have otherwise been eligible to hold a certificate of intercorporate exemption or a trip permit is irrelevant to the determination of whether the operator would be required to hold an operating license under the former TTA, if it were still in force, and consequently, whether the 60-hour threshold applies.

Exemption for employees to whom s. 17 applies – s. 18(5)

Subsection 18(5) provides that s. 18(1) does not apply to an employee to whom s. 17 of O Reg 285/01 applies. Section 17 establishes a special overtime threshold of 50 hours for certain employees engaged in "local cartage".

Calculating number of hours worked – s. 18(6)

Subsection 18(6) provides that in computing the total number of hours worked for the purpose of the overtime provisions only those hours during which the employee is directly responsible for the vehicle shall be included. The driver is not considered directly responsible for the vehicle during times when he or she is free to leave the vehicle (regardless of whether he or she actually leaves it or not), such as meal periods, sleeping periods, and during extended waits for the loading or unloading of the vehicle, if it can be parked and left in the interim.

By contrast, there are times during which the driver must remain with the vehicle, for example, to move it up in a loading or unloading line, a truck inspection line, at a customs or ferry line, or to supervise or observe loading or unloading of the vehicle. In these situations, the driver is considered to be directly responsible for the vehicle and those hours will be included in the calculations for entitlement to overtime pay.

Definitions – s. 18(7)

Commercial motor vehicle

Subsection 18(7) states that "commercial motor vehicle" has the same meaning as it did under the former TTA, which was as follows:

Former Act

Subsection 18(7) states that "former Act" means the TTA (repealed).

Operate

Subsection 18(7) states that "operate" has the same meaning as it had under the former TTA and that operator has a corresponding meaning.

The former TTA defined "operate" as follows:

"Operate" does not refer to the driving of a vehicle, but to the ultimate control of the vehicle. The operator will often be the employer, but this will not necessarily be the case in every instance.

Truck

Subsection (7) defines "truck" as follows:

Section 19 – Domestic workers

Written particulars – s. 19(1)

The wage statement requirements set out in s. 12 of the Employment Standards Act, 2000 apply to domestic workers. However, s. 19(1) of the regulation requires that an employer of a domestic worker also provide the employee with information respecting the regular hours of work, including starting and finishing times, and the hourly rate of pay. This information must be provided in writing. For a discussion of the definition of "domestic worker", please see O Reg 285/01, s.1.

Room and board rates – s. 19(2)

This subsection sets the amounts that are deemed to have been paid as wages where meals or a room are provided to the domestic worker for purposes of determining whether the minimum wage has been paid.

With respect to the provision of a room, the ordinary meaning of the words "private" and "not private" is to be applied when determining which amount to use. For example, a domestic worker’s bedroom is not private if the only access to a laundry room used by the employer is through it - see Flores v Walker and Bassett Walker (July 8, 1998), 2234-97-ES (ON LRB).

Where the employer seeks to satisfy its minimum wage obligations in part through the provision of room and/or board, and accordingly pays the domestic worker minimum wage less the amounts deemed to have been paid as wages for room and/or board (as the case may be) as set out above, there is no deduction from wages, and hence no written authorization for deduction is required in relation to the room and board amounts.

In some cases, an employer may wish to make a larger deduction in respect of room and board than the amounts set out above (for example, where the domestic worker's wages exceed the minimum wage set out in the Act). However, that would have to be authorized in writing by the domestic worker.

Amounts deemed to wages – s. 19(3)

This subsection mirrors ss. 5(5) (which applies generally to employees) and 25(8) (which applies to fruit, vegetable and tobacco harvesters) of O Reg 285/01.

Room and board not deemed paid – s. 19(4)

Subsection 19(4) provides that an amount for room or board shall not be deemed to have been paid to a domestic worker unless he or she has occupied the room and received the meals. This subsection mirrors ss. 5(6) (which applies generally to employees) and 25(9) (which applies to fruit, vegetable and tobacco harvesters) of O Reg 285/01.

Section 20 – Residential care workers

Day – s. 20(1)

This section defines "day" for the purposes of s. 20: the 24-hour period from 12 midnight to 12 midnight. An employer may use some other period for its own purposes, such as scheduling (for example, 8:00 a.m. to 8:00 p.m., 10:00 a.m. to 10:00 p.m., etc.). However, the employer's definition of day does not, for purposes of s. 20 of the regulation, override the definition set out in s. 20.

Payment to care workers – s. 20(2)

This section sets out the basic rule for paying residential care workers. Despite s. 6 (which stipulates when work is deemed to be performed), and subject to s. 20(3), an employer must pay a residential care worker for each day an amount equal to the worker's regular rate multiplied by 12 hours. This regular rate cannot be less than the general minimum wage. Even if the employee has worked more than 12 hours in that day, this section would not require the employer to pay the employee for more than twelve hours. But see the discussion of s. 20(4) of O Reg 285/01 below.

Payment for actual hours worked – s. 20(3)

This provision is similar in effect to s. 3(2) under Reg 326 to the former Employment Standards Act.

An employee may be allowed by his or her employer to be free from duties in the facility for part of the day even though during that time he or she is still required to be in the facility. As a result, he or she may end up working fewer than 12 hours in a day. If that is the case, he or she need only be paid at his or her regular rate for the actual hours worked.

Reading ss. 20(2) and (3) together, therefore, for each day, a residential care worker is entitled to be paid for the actual hours worked or for 12 hours, whichever is less. In determining what are hours of work, reference should be made to s. 22 of the regulation.

Payment for additional hours – s. 20(4)

This provision is similar in effect to s. 4 of O Reg 326 under the former Employment Standards Act.

Sections 20(2) and (3) establish the basic rule that the most a residential care worker is entitled to be paid at his or her regular rate is for the actual hours worked, or for 12 hours, whichever is less. However, s. 20(4) creates an exception to this basic rule: if the residential care worker works more than twelve hours in a day, he or she must be paid for those additional hours, but only up to a maximum of three hours, and only if he or she keeps an accurate daily record of hours worked and provides the record to the employer on or before the pay day following the pay day for the pay period in which the extra hours were worked. If the employee fails to provide the record to the employer within the prescribed time limits, the employer could refuse to pay for the extra hours, even if the worker has maintained accurate records on a daily basis.

Examples regarding ss. 20(3) and (4):

  1. Employee works 10 hours.
    • Employee is paid for 10 hours.
  2. Employee works 13 hours, and does not maintain a record of hours worked.
    • Employee is paid for 12 hours.
  3. Employee works 13 hours and does maintain record of hours worked and does submit the record to the employer within the prescribed time limit.
    • Employee is paid for 13 hours. 
  4. Employee works 17 hours and does not maintain a record of hours worked.
    • Employee is paid for 12 hours.
  5. Employee works 17 hours and does maintain record of hours worked and does submit the record to the employer within the prescribed time limit.
    • Employee is paid for 15 hours (the maximum 12 hours + the maximum three extra hours).

Section 21 – Free time

Hours free from work – s. 21(1)

This provision is similar in effect to s. 6(1) of Reg 326 under the former Employment Standards Act.

A residential care worker is entitled to at least 36 hours off in each "work week", which is defined in s. 1 of the Employment Standards Act, 2000. The worker must be completely free from any requirement to perform any duties during this time. The 36 hours can be given in one consecutive period or, if arranged with the worker, they can be divided into any number of periods of any length so long as they total 36 hours. If the worker does not consent to such an arrangement, the 36 hours must be consecutive. Note that the requirement in s. 1(3) of the Act that "agreements" be in writing does not apply to this section, since this section uses the words "arrangement" and "consent".

Request to perform duties during time off – s. 21(2)

21(2) If the residential care worker consents, at the employer's request, to do work during a free hour mentioned in subsection (1),

  1. that hour shall be added to one of the next eight 36-hour periods of free time; or
  2. the employer shall pay the residential care worker at least one and one-half times the worker's regular rate for the time spent doing work during a free hour.

This provision is similar in effect to ss. 6(2) and (3) under Reg 326 to the former Employment Standards Act.

An employer may request a worker to perform duties during one of the 36-hour periods of time-off mentioned in s. 21(1). A worker is not obliged to comply with this request. However, if the worker does consent to work, he or she does not lose the free time: under subclause (a), it is added to any one of the 36-hour free periods in the next eight work weeks. The decision as to which of those eight periods will be extended is made by the employer. In the alternative, under subclause (b), the employee may be paid a premium rate of at least one and one-half times his or her regular rate, for the time spent working during a free hour. Note that the requirement in s. 1(3) of the Act that "agreements" be in writing does not apply to this section, since this section uses the word "consents".

Section 22 – When work deemed not to be performed

This provision is similar in effect to s. 7 under Reg 326 to the former Employment Standards Act.

As a residential care worker actually resides at his or her place of employment, it may be unclear when he or she is working. This section defines when work is not deemed to be performed in the specific context of residential care workers, and provides that these rules apply despite s. 6 of this regulation, which set out general rules for when work is not deemed to be performed.

First, when the worker is resting, sleeping or eating, or attending to private affairs or pursuits, he or she is not deemed to be at work even if he or she is "on call" and can be called away at any time to perform duties. (There is no requirement that time falling into this category be the subject of a written agreement.)

Secondly, if the worker is on a break period free from any duties at the facility by agreement with the employer, he or she is not deemed to be at work, even if he or she remains at the facility. There must be written agreement between the worker and his or her employer as to when such break periods are to be taken — see ESA Part I, s. 1(3) and s. 1(3.1) for more information on written agreements.

Section 23 – Exemptions

This provision is similar in effect to s. 8 under Reg 326 to the former Employment Standards Act.

This section provides that the hours of work and eating periods and overtime pay provisions of the Employment Standards Act, 2000 do not apply to residential care workers. Also, the requirement in paragraph 4 of s. 15(1) of the Act for an employer to keep a record of the number of hours worked by an employee in each day and week does not apply to a residential care worker. However, the employer is still required to maintain the other information about the worker set out in s. 15(1) of the Act.

Section 24 – Application

The effect of s. 24 is to bring the employees described in this section back in for entitlements to minimum wage, the three hour rule, vacation or vacation pay and public holiday pay, even though they may fall under the “primary production” exemptions from those standards set out in s 2(2).

This provision was amended effective January 1, 2019 to include a reference to section 25.1, which provides for coverage under Part VII.1 of the Act — the three hour rule.

Section 24 only applies to those employees who meet all the requirements of this section:

  1. They must be employed on a farm.

The normal, ordinary meaning of "farm" is a tract of land under cultivation or used as pasture for the growing of agricultural products and for the raising of animals. However, the term can also cover other types of facilities used in the growing or raising of agricultural products, e.g. greenhouses or the insulated buildings containing frame beds for the growing of mushrooms. In order that a person be "employed on a farm" within the meaning of section 24, it is necessary that his or her employment duties relate to the activities surrounding and flowing out of the main enterprise of growing agricultural products and that those duties are performed in whole or at least in part on the farm in question.

  1. They must harvest fruit, vegetables or tobacco.

Only harvesters are covered by ss. 25 through 27, and only certain harvesters, that is, those who pick fruit, vegetables or tobacco leaves. This section of the regulation does not apply to other farm workers (although other provisions in the regulation may apply; see ss. 8(e), 9(d) and 15 of O Reg 285/01).

  1. They must be harvesting for marketing or storage.

The provisions of ss. 25 through 27 will apply if the farm is sending its products for wholesale or retail sale, or selling the products directly to the public itself. They will also apply if the products are not sold immediately, but are kept in storage (either on or off the farm). If the products are not being sold "whole", but are being sold to be processed (into jams, fruit juices, etc.) or to be canned or frozen, or (in the case of tobacco) to be made into cigarettes, these provisions will still apply, as the farm is "marketing" its products to such manufacturers.

It is possible that an employee may perform work that is covered by these sections, work that is covered by the farming exemptions in ss. 8(e) or 9(d) of O Reg 285/01, and work that is not exempt at all: for example, harvesting fruit, pruning trees and working in a store, respectively.

In such a case, ss. 25 to 27 will apply to the employee in a given week if the majority of his or her time in that week is spent harvesting.

Section 25 – Minimum wage

Rate of pay – s. 25(1)

This section provides that fruit, vegetable and tobacco harvesters are entitled to be paid at least the minimum wage. In this regard, careful note should be made of the special provisions relating to minimum wage and piece work rates that apply to harvesters as set out in s. 25(2).

Piece work rate – ss. 25(2),(3) & (4)

These sections will apply where the employer does not calculate the wages based on hours worked, but rather pays a piece rate as defined in s. 25(4), that is, a certain amount of money for each unit of work performed (for example, $X for each basket of apples picked).

The rate must be one that is generally recognized in the area in which the farm is located. There is no hard and fast rule defining what is meant by "area". An employment standards officer should consider the area generally considered by the industry as the local farming community.

The rate must be set so that an employee using reasonable effort, if paid such a rate, would earn at least the general minimum wage for the actual hours worked. Thus, a poor or less diligent worker might end up earning less than the minimum wage for hours worked; however, as long as the piece work rate is appropriate, in the sense that an employee using reasonable effort could have earned at least the minimum wage at that rate, the employer will have complied with the Employment Standards Act, 2000. In order to determine whether the rate is appropriate, an officer should consult with local industry representatives and neighbouring farmers, and if need be, observe a number of harvesters performing the same work under similar conditions. The proper comparison is "an employee exercising reasonable effort". The hypothetical employee exercising reasonable effort is an ordinary or typical employee, as opposed to a highly experienced or unusually productive employee.

It is important to note that, by virtue of s. 25(3), this provision only applies to workers who are entitled to receive the general minimum wage. It does not apply to a student under 18 years of age who works not more than 28 hours/week or who works during a school holiday. This does not mean that such a student cannot be paid a piece work rate. However, if the student is paid a piece work rate, the total wages received must equal at least the student minimum wage for the total hours worked, regardless of whether an employee using reasonable effort paid at the same piece work rate could have earned at least the student minimum wage. If there is a shortfall, the employer must make up the difference.

Room and board amounts – s. 25(5)

This section sets the amount deemed to have been paid as wages where room or board is provided for the purposes of determining whether the applicable minimum wage has been paid. The employer must pay in monetary form the applicable minimum wage less the value of the above-noted maximum allowances.

Room and board deemed paid – s. 25(6)

The requirements of this definition are fairly self-evident: either a dwelling with a kitchen, private bathroom and at least two bedrooms, or one with a kitchen, private bathroom, and at least one bedroom and a living room. It must be "reasonably fit for human habitation". No hard and fast rules can be established to define this concept; an officer should determine what a reasonable person would consider fit considering factors such as the location of the farm. If the s. 25(6) requirements are not met, an employer who provides unserviced housing accommodation will not be deemed to have paid the amount set out in paragraph 2 of s. 25(5) for purposes of determining whether the employee has been paid at least the minimum wage.

Serviced housing deemed paid as wages – s. 25(7)

This subsection sets out two requirements that must be met if an employer wishes to be deemed to have paid the amount for "serviced housing accommodation" (i.e., the amount set out in paragraph 1 of s. 25(5)) for minimum wage purposes. In accordance with s. 25(7)(a), the employer must provide accommodation that meets the requirements for "housing accommodation" as set out in s. 25(6). In addition, the employer must comply with s. 25(7)(b) by paying for the provision of any one or more of the following: light, heat, fuel, water, gas or electricity. Note: As long as the employer pays for at least one of these services, the requirement under s. 25(7)(b) will be met, even if the employee is required to pay for the remaining services.

Room deemed paid as wages – s. 25(8)

This provision mirrors s. 5(2) of O Reg 285/01 which applies to employees generally and s. 19(3) of O Reg 285/01 which applies to domestic workers; it places conditions which must be met if the employer who provides a room wishes to be deemed to have paid the amount indicated in s. 25(5) for a room for minimum wage purposes.

First, the room must be reasonably furnished; in the view of the Program, that means it must contain at least a bed, a table, a chair, and a wardrobe or chest of drawers. It must also be reasonably fit for human habitation. Further, the employer must provide clean bed linen and towels (not necessarily daily, but on a frequent enough basis to maintain cleanliness), and the employee must have reasonable access to toilet and washing facilities. Again, an officer should determine what a reasonable person would consider reasonable. Facilities just across a hall would usually be reasonable; facilities requiring a trip across a field to an outhouse may or may not, depending, for example, on the location of the farm and the norms in that particular community.

Room or board not deemed paid as wages – s. 25(9)

Section 25(9) provides that amounts in respect of room and board are not deemed to have been paid unless the employee has received the meals or occupied the room. This section mirrors s. 5(3) of O Reg 285/01 (which applies generally) and s. 19(4) of O Reg 285/01 (which applies to domestic workers). For purposes of s. 25(9), "room" includes housing accommodation that is not a room (at least in the ordinary sense), e.g., a barracks.

Section 25.1 – Three hour rule

Special rules re fruit, vegetable and tobacco harvesters

Three hour rule

Section 25.1 was added to O. Reg. 285/01 effective January 1, 2019.  This section, read in conjunction with section 24, provides that the three hour rule set out in Part VII.1, section 21.2 of the Act applies to employees who are employed on a farm to harvest fruit, vegetables or tobacco for marketing or storage.

For more information, please see the discussion at O. Reg, 285/01 Section 24 and ESA Part VII.1, section 21.2.   

Section 26 – Vacation or vacation pay

A harvester is only entitled to a vacation with pay after he or she has been employed for 13 weeks or more as a harvester, by the same employer. The weeks of employment need not be consecutive, but they must have been for a single employer. Once this condition is met, the employer must comply with Part XI of the Employment Standards Act, 2000 (Vacation With Pay) and either provide a vacation with pay or, where appropriate, four per cent vacation pay. If the harvester works for an employer for less than 13 weeks in a year, he or she is not entitled to vacation pay.

Vacation pay need only be paid on the wages earned while harvesting or on other non-exempt wages. For example, if an employee spends most of her time harvesting fruit, but occasionally works in the office and sometimes works in the cultivation of the plants, vacation pay would only be payable on the wages earned while harvesting and while in the office, but not on the wages earned while cultivating, as non-harvester employees working on a farm in primary production are exempted from the vacation pay provisions by s. 2(2) of this regulation.

Section 41 of the Act, under which the Director of Employment Standards may approve an agreement for an employee to forego taking vacation to which he or she is entitled, does not apply to harvesters.

Section 27 – Public holidays

Part X of the Employment Standards Act, 2000 (Public Holidays) applies to a person employed for at least 13 weeks as a harvester. In other words, unlike regular employees to whom Part X applies, harvesters are entitled to public holiday entitlements only once their employment (as a harvester) reaches 13 weeks or more. Because the words used in this section are "a period of 13 weeks or more", the 13 weeks must be consecutive. This is unlike s. 26, where the 13 weeks do not need to be consecutive — see O Reg 285/01, s. 26 for more information.

Once it is determined under s. 27(1) that the public holiday provisions apply to a harvester, the employee is deemed to be employed in a "continuous operation". The public holiday entitlements for employees in continuous operations are different than they are for other employees. See ESA Part X (Public Holidays) for further discussion.

Section 28 – Commission automobile sales sector

Application – s. 28(1)

Section 28 sets out special rules for the commission automobile sales sector.

Section 28(1) states that s. 28 applies to all employees who sell automobiles on a commission basis, whether their remuneration is entirely or only partially paid by commission.

Many car salespeople are paid on a pure commission basis. In order to ensure that employees have some income during periods of slow sales, many of these employees receive a regular draw, or advance, against commissions. Section 28 operates in this context and is intended to ensure that the minimum wage requirement of the Employment Standards Act, 2000 is met.

Pay periods – ss. 28(2), (3)

Sections 28(2) and (3) use the term "pay period" for purposes of these special provisions respecting commission automobile sales employees. These sections require employers to pay each employee an amount at least equal to the minimum wage for each pay period, and stipulate that a pay period shall not exceed a period of one month in length.

Reconciliation periods – ss. 28(4),(5),(6),(7)

These provisions introduce the term "reconciliation period" (as distinct from "pay period"), and prescribe the dates of four reconciliation periods a year. Where a commission automobile sales employee receives wages in the form of a draw or advance against commissions earned, the employer is required to reconcile at the end of each reconciliation period the amount advanced with the amount of commissions that the employee earned. The reconciliation cannot result in the employee being paid less than minimum wage for each pay period. Further, the balance at the end of each reconciliation period cannot be carried forward into the next reconciliation period. An employee's account must start fresh, with a balance of zero, at the beginning of each reconciliation period.

Under this reconciliation process, if the employee earns more in commissions than he or she received in draws during a particular reconciliation period, the surplus is to be paid to the employee. The surplus may not be carried forward past the end of the reconciliation period in order to offset any deficit that may accrue on the employee's account during later reconciliation periods.

Similarly, if the employee earns less in commissions than he or she received in draws during a particular reconciliation period, the "deficit" may not be carried forward past the end of the reconciliation period in order to offset commissions earned in later reconciliation periods. (Note, however, that the employer may be able to recoup the amount of the deficit - so long as it does not result in the employee earning less than minimum wage for each pay period - by making deductions from wages earned in the next reconciliation period if the employee provides written authorization to do so.)

Reconciliation and termination – s. 28(8)

This section requires that reconciliation take place at the end of an employee's employment (whether the employee quit or the employer terminated the employee). Because this section states that s. 28(6) applies, the reconciliation must not result in the employee receiving less than minimum wage for each pay period.

Section 32 – Certain approved agreements irrevocable

Subsections 32(1) and (2) of O. Reg. 285/01 must be read in conjunction with subsections 141(9) and (10) of the ESA 2000. Those provisions state:

141(9) An employer may not require an employee who has made an agreement approved by the Director under a regulation made under paragraph 9 of subsection (1) to work more than 10 hours in a day, except in the circumstances described in section 19.

141(10) If an employee has agreed to work hours in excess of those referred to in clause 17(1)(a) and hours in excess of those referred to in clause 17(1)(b), the fact that the Director has approved the agreement in accordance with a regulation made under paragraph 9 of subsection (1) does not prevent the employee from revoking, in accordance with subsection 17(6), that part of the agreement dealing with the hours in excess of those referred to in clause 17(1)(b).

Together these sections provide that despite s. 17(6) of the ESA 2000 (which provides that an employee can revoke an excess daily hours of work agreement with two weeks’ written notice), employees who were hired on or after September 4, 2001, and who agreed in writing at the time of hiring to work hours in excess of the daily maximum cannot unilaterally withdraw from the agreement (even with two weeks' notice), if the Director of Employment Standards approved the agreement. The agreement can be revoked only if the employer and employee both agree, in writing, to revoke it.

Note that this exception to the revocability of agreements applies only to agreements to work excess daily hours (and only if the agreement was approved by the Director of Employment Standards). These employees retain the right under s. 17(6) to revoke, with two weeks' written notice, agreements to work excess weekly hours.

Note also that pursuant to s. 141(9) employees who are party to these approved agreements to work excess daily hours cannot be required to work more than 10 hours a day except in s. 19 exceptional circumstances.

Section 32.1 – Existing arrangements for long shifts

See ESA Part VII (Hours of Work and Eating Periods) for a discussion of these provisions.


Footnotes

  • footnote[7] Back to paragraph Note that the exemption from s. 4(2) of the Act arises from s. 4(1) of the Act, not from the operation of this regulation.
  • footnote[8] Back to paragraph Certificates of Inter-corporate exemption  — Under s. 3(5) of the former TTA, a trucking operation that only hauled goods on behalf of its corporate affiliates (the former TTA included a test to determine what is an affiliate), could obtain a CIE instead of an "operating license" under the TTA. The CIE was not an "operating license" under the TTA, and for this reason, the 60-hour threshold established by the former section 18 did not apply.
  • footnote[9] Back to paragraph Under s. 3(4) of the former TTA the description of certain goods incorporates a cross-reference to the STCC (Standard Transportation Commodity Code Tariff). Reference must therefore be made to both s. 3(4) of the TTA and to the STCC to determine whether an operator was exempted from the requirement to hold an operating license because it was transporting goods listed in s. 3(4) of the former TTA.
  • footnote[10] Back to paragraph Trip permits were authorizations to carry goods “for-hire” on a trip-by-trip basis. Because the holder of a trip permit would not have an operating license, the driver of a truck operated by the holder of a trip permit would not have been covered by the 60-hour overtime threshold established by the former s. 18 of O. Reg. 285/01.
Updated: June 15, 2022
Published: July 19, 2018