Ontario Regulation 289/01 – Enforcement

This regulation sets out which penalties are prescribed for notices of contravention as per ESA Part XXII, s. 113. It also sets out which provinces are reciprocating states for reciprocal enforcement of orders as per ESA Part XXIV, s. 130.

Section 1 – Prescribed penalties re notices of contravention

ESA Part XXII, s. 113 permits an employment standards officer to issue a notice requiring payment of a prescribed penalty as set out in O Reg 289/01 to a person that the officer believes has contravened the ESA 2000. The officer’s power to issue a notice of contravention is discretionary, like the ability to issue other orders. However, if a notice of contravention is issued, the penalty amounts must be applied as set out within O Reg 289/01.

Note the penalties set out in O Reg 289/01 were higher from January 1, 2018 to December 31, 2018. During that period of time, the penalty amounts were $350/$700/$1500 instead of $250/$500/$750. Pursuant to subsection 52(5) of the Legislation Act,^{footnote 11[11]} the higher amounts apply only if the contravention relating to the Notice of Contravention occurred during the 2018 calendar year and the Notice of Contravention was issued during the 2018 calendar year. Otherwise, the lower amounts set out in the current O. Reg. 289/01 apply.

Penalties for a contravention of ESA 2000 section 2, 15, 15.1 or 16:

Per items 1 to 3 in the chart above, the penalties for a contravention of one of these sections are as follows:

• $250
• $500 for a second contravention of the same provision within a three-year period, and
• $1000 for a third or subsequent contravention of the same provision in a three-year period.

Note that when determining the penalty for a contravention of section 2, 15, 15.1 or 16, the number of employees affected by the contravention is not relevant; the officer does not multiply the penalty by the number of employees affected.

Penalties for a contravention of any provision other than section 2, 15, 15.1 or 16 affecting only one employee:

Per items 4 to 6 of the chart above, the penalties in this context are as follows:

• $250
• $500 for a second contravention of the same provision within a three-year period, and
• $1000 for a third or subsequent contravention of the same provision in a three-year period.

Penalties for a contravention of any provision other than section 2, 15, 15.1 or 16 affecting more than one employee:

Per items 7 to 9 in the chart above, the penalties in this context are as follows:

• $250 multiplied by the number of affected employees
• $500 multiplied by the number of affected employees for a second contravention of the same provision within a three-year period, and
• $1000 multiplied by the number of affected employees for a third or subsequent contravention of the same provision in a three-year period.

When penalty amounts escalate – “Second, third or subsequent contravention”

Note that in order for the penalty amount to escalate (i.e. from $250 to $500, or from $500 to $1000), the same provision of the ESA 2000 must have been contravened for a second or third time within a three-year period. This means that one or more NOCs must have previously been issued and have resulted in a deemed contravention under subsection 113(5) of the ESA 2000 in the previous three-year period.

Per ss. 113(5), a notice of contravention is deemed to have been contravened where the person against whom it was issued fails to make an application for a review of the notice within 30 days of the date of service, or, where a review was sought, the Ontario Labour Relations Board finds that the person contravened the provision set out in the notice.

When determining whether there is a prior deemed contravention that will cause the penalty amount to escalate, it is the three year period prior to the date of the current contravention for which an NOC is being issued that is reviewed, rather than the three year period prior to the date the current NOC is being issued.

“Person”

An officer may issue a notice of contravention to any person the officer believes has contravened the ESA 2000. “Person” is defined in ESA Part I, s. 1 to include a trade union. The word “person” indicates that the notice may be issued against persons other than an employer. For example, a notice of contravention could be issued against someone who is not the employer but who has custody of records or documents relevant to an investigation and who refuses to make them available for inspection contrary to ESA Part XXI, s. 91(8).

Section 2 – Reciprocal enforcement of orders