Part XXI (ss. 84 to 95 inclusive) is the source for the powers of those persons responsible for administering the Employment Standards Act, 2000.

The intent of these provisions of the Act is to provide for the day-to-day administration of the legislation through the powers and duties of the Minister of Labour, the Director of Employment Standards and employment standards officers.

Section 84 — Minister responsible

The Minister of Labour is responsible to the Legislature and to the public for the administration of the Employment Standards Act, 2000. The language of this section is identical to the language in s. 59(1) of the former Employment Standards Act. That section was used as authority for the proposition that in employee applications for review under the Act, the claimant does not control the process. The Minister is the person responsible for the Act. Therefore, such enforcement processes as investigation, issuing an order and defending an order at a hearing are under the administration of the Minister, and are not under the control of the employee who filed the claim. See Dominion Electric Protection Co. Ltd. d.b.a ADT Energy Systems v. Hand (September 23, 1985), ESC 1950 (Baum).

Section 85 — Director

Director — s. 85(1)

The Minister of Labour appoints the Director of Employment Standards to administer the Employment Standards Act, 2000 and the regulations. This section is the source for the Director's powers and duties under the Act. The nature of the Director's powers and duties is spelled out in s. 88.

Acting director — ss. 85(2) and (3)

This provision is similar to the corresponding section (s. 59) of the former Employment Standards Act except that the former Employment Standards Act provided for the Minister to appoint an Acting Director. Sections 85 (2) and (3) allow the Director or the Deputy Minister, in the Director's absence, to name an employee of the Ministry to take over the duties of the Director in an "acting" capacity while the Director is unable to exercise the powers of the office, or while the office is vacant.

Section 86 — Employment standards officers

Employment standards officers — s. 86(1)

Section 86(1) is the authority for the appointment of employment standards officers. Once appointed, the officers have the authority to exercise powers and duties in accordance with s. 89 of the Employment Standards Act, 2000.

Certificate of appointment — s. 86(2)

Section 86(2) requires that an appointment card be issued to all employment standards officers. The Deputy Minister must issue to each officer a card as evidence of his or her appointment. The card is evidence of the officer's appointment and authority to use the powers set out in ss. 89, 91 and 93.

The corresponding provision in the former Employment Standards Act (s. 62) also explicitly required an officer to present his or her card, as authority for the powers exercised or the duties carried out, if requested to do so by any person. This provision is now found in s. 91(5).

Section 87 — Delegation

Delegation — s. 87(1); Residual powers — s. 87(2)

Section 87(1) is substantially the same as the corresponding section (s. 59(5)) of the former Employment Standards Act. It allows the Minister of Labour to delegate powers and duties to anyone he or she chooses. The delegation must, however, be made in writing.

Section 87(2) was introduced by the Employment Standards Act, 2000. It preserves the Minister's ability to exercise powers and perform duties that have been delegated to persons under this section.

Section 88 — Powers and duties of director

Powers and duties of director — s. 88(1)

Subsection 88(1) makes plain the distinction between the powers of the Director (those instances where the Employment Standards Act, 2000 says that the Director may do something) and the duties of the Director (where it is stipulated that the Director shall do something). This distinction accords with principles of statutory interpretation concerning permissive and mandatory language.

For example, the powers of the Director would include:

  • Subsection 88(5) — the power to determine the rate of interest and manner of calculating it under the Employment Standards Act, 2000;
  • Subsection 99(6) — the power to permit an employee represented by a trade union that is a party to a collective agreement to file a complaint.

The duties of the Director would include:

  • Subsection 88(7) — the duty to pay out monies that had been paid to the Director in trust, to the person entitled to receive it, with interest where no provision has been made elsewhere in the Employment Standards Act, 2000 for paying it out
  • Subsection 112(5) — the duty to pay to the employee monies that were paid to the Director in trust with respect to that employee under as. 112 settlement

Policies — s. 88(2)

This subsection allows the Director to establish policies regarding interpretation, administration and enforcement of the Employment Standards Act, 2000. The purpose of the provision is to promote province-wide, consistent interpretation and application of the Employment Standards Act, 2000.

This subsection should be read together with ESA Part XXI s. 89(2), which states that employment standards officers must follow any policies established by the Director under s. 88(2).

Authorization — s. 88(3)

Subsection 88(3) sets out the authority of the Director to delegate various powers and duties to program staff. For information on such delegations see Delegation of Powers.

Note that in addition to the Director's general authority to delegate under s. 88(3), the Director has further, specific delegation authority in ESA Part VII, s. 17.3 and in ESA Part VIII, s. 22.2.

Same: residual powers — s. 88(4)

Section 88(4) preserves the Director's ability to exercise powers that have been delegated to persons under s. 88(3).

Interest — s. 88(5)

Subsection 88(5) authorizes the Director, with the Minister's approval, to decide what rates of interest and the manner of its calculation for the purposes of the Employment Standards Act, 2000.

The Fair Workplaces, Better Jobs Act, 2017, S.O. 2017, c. 22, amended s. 88(5), effective January 1, 2018 to allow the Director of Employment Standards to set multiple rates of interest for any amounts owing under different provisions of the Employment Standards Act, 2000 and its regulations, as well as money held in trust by the Director.

No specific rates of interest are currently in place under this section.

Determinations not regulations — s. 88(6)

Subsection 88(6) clarifies that the Director's determination of an interest rate under s. 88(5) is not a regulation.

Other circumstances — s. 88(7)

Subsection 88(7) is intended to provide consistency in the calculation of interest on and payment out of monies that had been paid into the Director in trust, where there are no provisions for paying it out elsewhere in the Employment Standards Act, 2000. For example, this section would apply where employees have elected to retain recall rights under a collective agreement and the termination and/or severance pay monies were paid to the Director in trust and are subsequently paid out to the employer or employees under ESA Part XV, ss. 67(8) and (9).

Surplus interest — s. 88(8)

Subsection 88(8) allows for any excess interest earned on the monies held in trust to be used to pay service charges levied by the financial institution in which the money was deposited.

Hearing not required — s. 88(9)

Subsection 88(9) provides that the Director is not required to hold hearings when exercising powers under the Employment Standards Act, 2000. Because the Director's statutory powers are such that a person's rights can be affected, (e.g., approving severance payments by instalment and approving the extension of a temporary lay-off) there is a possibility that principles of natural justice may require the Director to hold a hearing if not for this provision.

This provision is consistent with s. 89(3), which states that employment standards officers are not required to hold hearings when exercising any power or making any decision under the Employment Standards Act, 2000.

Section 88.1 — Director may reassign an investigation

Section 88.1 was added to the Employment Standards Act, 2000 by the Good Government Act, 2006, S.O. 2006, c. 19, effective June 22, 2006. The section permits the Director of Employment Standards to transfer the investigation of a complaint or inspection from an employment standards officer to another employment standards officer.

The Director's authority to reassign a file is discretionary. An example of when the Director might consider exercising his or her discretion is if the original investigating officer was indisposed and could not be expected to complete the investigation in a timely way.

If the Director did reassign a file under this section, the new officer would able to rely, but would not have to rely, on any findings of fact and the evidence collected by the first officer. The new officer would also be able to collect new evidence and make new findings.

Section 88.2 — Recognition of employers

Recognition of employers — s. 88.2(1)

This subsection enables the Director of Employment Standards to give recognition to an employer, for example, for a high rate of compliance with the Employment Standards Act, 2000, or exceptional performance measured in accordance with prescribed criteria. Currently, no criteria are prescribed.

Classes of employers — s. 88.2(2)

This subsection establishes that the criteria or system of recognition may be divided into different classes of employer with different criteria for each.

Information re: recognitions — s. 88.2(3)

This subsection empowers the Director to require any information related to the recognition, for the purposes of granting, reviewing or revoking a recognition from either an applicant for same or an employer who is has already received a recognition.

Publication — s. 88.2(4)

This subsection permits the Director to publish general information, such as the number of recognitions granted within a particular time period and the names of employers that have received recognitions.

Validity of recognition — s. 88.2(5)

A recognition granted by the Director may specify a time period within which it will remain valid. It will cease to be valid after that point.

Revocation, etc. of recognitions — s. 88.2(6)

The Director has the power to revoke or amend a recognition. For example, if an employer no longer fulfills the criteria that support a recognition the Director would be able to revoke it.

Section 88.3 — Delegation of powers under s. 88.2

Delegation of powers under s. 88.2 — s. 88.3(1)

This subsection empowers the Director to authorize or delegate all of the powers of granting, revoking or amending recognition to an employer as well as requiring an employer to provide information.

Residual powers — s. 88.3(2)

Although the Director may delegate powers established by s. 88.2, the Director retains the ability to exercise any power under s. 88.2 simultaneously.

Duty re: policies — s. 88.3(3)

Under s. 88.3(3), an individual who has been authorized by the Director of Employment Standards to grant, amend or revoke an employer recognition under s. 88.3(1), is required to follow any policies established by the Director under s. 88(2) related to the exercise of that authority. Subsection 88(2) empowers the Director to establish policies “respecting the interpretation, administration and enforcement of this Act”. If the Director does so in relation to employer recognition per s. 88.2, any person authorized by the Director to exercise a power under s. 88.2 is required to follow those policies.

Section 89 — Powers and duties of officers

Powers and duties of officers — s. 89(1)

Section 89(1) parallels s. 88(1), concerning, in this case, the powers and duties of an employment standards officer. As in s. 88(1), this section emphasizes the distinction between what the officer may do and what the officer must do.

For example, "the powers of an employment standards officer" would include:

  • Section 91(1) — the power to enter and inspect any place without a warrant
  • Section 102 — the power to hold a "decision-making" meeting

The "duties of an employment standards officer" would include:

  • Section 89(2) — the duty to follow any policies established by the director under s. 88
  • Section 110 — the duty to advise a complainant of the decision to refuse to issue an order by letter served in accordance with s. 95

Officers to follow policies — s. 89(2)

This provision was introduced by the Employment Standards Act, 2000. Section 89(2) imposes an obligation on employment standards officers to follow the policies established by the Director under s. 88(2) respecting the interpretation, administration and enforcement of the Act.

Hearing not required — s. 89(3)

This provision was introduced by the Employment Standards Act, 2000. Section 89(3) clarifies that an employment standards officer may exercise any power under the Act, e.g., to conduct inspections, investigate complaints, require attendance at meetings under s. 102 or make any decision under the Act, without holding a hearing. Section 89(3) makes it clear that the officer is not required to hold a hearing when exercising those powers or making a decision under the Act. In the absence of this section, it might be argued that principles of natural justice may impose an obligation on the officer to hold a hearing. See also the discussion of the Director's power in s. 88(2) of the Act to establish policies at ESA Part XXI, s. 88(2).

Section 90 — Officers not compellable

Officer not compellable — s. 90(1)

Generally speaking, the effect of this provision is that an employment standards officer cannot testify in a civil proceeding. Not only is an officer not "compellable" (meaning that an officer cannot be required to give testimony); an officer is also not "competent" to give testimony (meaning that he or she cannot give testimony even on a voluntary basis).

The term "civil proceeding" obviously includes a court proceeding, but it also includes a proceeding before a tribunal, such as the Ontario Labour Relations Board, or an arbitrator. See Ontario Nurses' Assn. v. Extendicare (Canada) Inc., (Kirkland Lake) (Burke Grievance). However, it does not include a criminal proceeding.

Note that there is an exception to the "not competent, not compellable" rule-an officer is both a competent and compellable witness where his or her testimony would be given for the purpose of carrying out his or her duties under the Employment Standards Act, 2000. Program policy is that this includes the giving of testimony in hearings under ss. 116, 121 and 122 of the Act.

Records — s. 90(2)

Generally speaking the effect of this provision is that an employment standards officer cannot be required in a civil proceeding to produce anything (such as a record) that he or she acquired while performing an inspection or investigation under the Act.

The term "civil proceeding" obviously includes a court proceeding, but it also includes a proceeding before a tribunal, such as the Ontario Labour Relations Board, or an arbitrator. See Ontario Nurses' Assn. v. Extendicare (Canada) Inc., (Kirkland Lake) (Burke Grievance). However, it does not include a criminal proceeding.

Note that an officer could be required to produce something acquired while performing an inspection or investigation where it is for the purpose of carrying out his or her duties under the Act. Further, a record or part of a record acquired by an officer may be accessible under the Freedom of Information and Protection of Privacy Act, R.S.O. 1990, c. F.31.

Section 91 — Investigation and inspection powers

Investigation and inspection powers — s. 91(1)

Section 91(1) provides that the officer may enter and inspect any place for the purposes of investigating a possible contravention or to perform an inspection to ensure the Employment Standards Act, 2000 is being complied with. "Any place" indicates that the officer may enter not only the premises of the employer, but any premises belonging to any person who may have records or knowledge relevant to the investigation. Furthermore, there is nothing in the section that would limit the officer to a single visit to accomplish the investigative tasks. There are limitations on this right of entry in ss. 91(2), (3) and (4) discussed below.

Time of entry — s. 91(2)

The corresponding section (63(1)(a)) in the former Employment Standards Act limited entry, in the absence of a warrant, to "any reasonable time or times." Section 91(2) allows the employment standards officer to enter and inspect a place only during its regular business hours and if it has no regular business hours, during daylight hours. This provision is intended to provide the officer with a right of entry. If the employer had no regular business hours but offered or agreed to allow the officer to enter and inspect the premises at night, this section would not prevent the officer from accepting the employer's offer or agreement to do so.

Dwellings — s. 91(3)

This provision is substantially unchanged from the corresponding provision (s. 63(2)) in the former Employment Standards Act Section 91(3) is a limitation on the power of the employment standards officer to enter into premises. If the premises are used as a dwelling or living quarters, then the officer must have the consent of the person occupying the premises or must obtain a search warrant under s. 92.

If the workplace is a nuclear facility, to which provincial employment standards legislation applies as of April 1, 1998, the search warrant is to be obtained under s. 487 of the Criminal Code. See the discussion at ESA Part XXI, s. 94 regarding provincial jurisdiction in nuclear operations as well as ESA Part III, s. 3(2) for general information regarding federal/provincial jurisdiction. Given that nuclear facilities are unlikely to be used as dwellings, this last point is likely of intellectual interest only.

For situations where a search warrant may be required, the officer should consult Legal Services Branch.

Use of force — s. 91(4)

This provision was introduced by the Employment Standards Act, 2000, although it merely codifies Program practice under the former Employment Standards Act. Section 91(4) makes it clear that an officer is not entitled to use force to enter and inspect a place.

Identification — s. 91(5)

This provision is essentially unchanged from s. 62(2) of the former Employment Standards Act Section 91(5) provides that the card issued by the Deputy Minister as evidence of an employment standards officer's appointment — see ESA Part XXI, s. 86(2) — must be produced on request. The card is evidence of the authority under the Act for the powers exercised or duties performed by the officer.

Powers of officer — s. 91(6)

Section 91(6) is similar to the corresponding provision (s. 63(1)) in the former Employment Standards Act. Section 91(6) sets out the officer's powers to examine, require for production, remove for review and copy records and other things that are relevant or the officer considers relevant to an investigation or inspection. Section 91(6)(a) was amended by the Good Government Act, 2006, S.O. 2006, c. 19, effective June 22, 2006. It previously stated that the officer could "examine a record other thing that is relevant to the investigation or inspection." The amendment clarified that records etc. could be examined so long as the officer thinks they may be relevant.

Section 91(6) also allows the officer to order records to be produced in a readable form and to question any person on any matter the officer thinks may be relevant to the investigation or inspection. The broad language of the section with respect to a "record or other thing" was intended to ensure that all things relevant to the investigation or inspection would be made available to the officer. However, in the performance of all his or her duties under the Act, the officer would be expected to act reasonably. Such a restriction would also apply to the officer's determination that a record, thing or matter was relevant to the investigation.

1. Examine a record or other thing that is relevant to the investigation or inspection — s. 91(6)(a)

Clause 6(a) allows the officer to examine records or things relevant to the investigation or inspection. The term "record or other thing" is very broad and could include books of account, ledgers, vouchers, letters patent, by-laws, minutes of directors' meetings as well as other documents or things.

2. Require the production of a record or other thing that the officer thinks may be relevant to the investigation or inspection — s. 91(6)(b)

Clause 6(b) allows the officer to require production of records or other things he or she thinks are relevant to the investigation. If the records or other things are not produced upon request the officer may require production through a demand in writing under s. 91(7). See discussion under ss. 91(7) and (8) below.

Note: Officers may also compel production of records or other things at a meeting scheduled under s. 102. Note also that the Director's separate power to require production of records in s. 74(1) of the former Employment Standards Act has been eliminated.

3. Remove for review and copying a record or other thing that the officer thinks may be relevant to the investigation or inspection — s. 91(6)(c)

Clause 6(c) allows an employment standards officer to remove records or other things for review and copying. This clause must be read in conjunction with s. 91(9), which requires the officer to provide a receipt and to return the records or other things within a reasonable time.

4. In order to produce a record in readable form, use data storage, information processing or retrieval devices or systems that are normally used in carrying on business in the place — s. 91(6)(d)

Clause 6(d) allows an employment standards officer, for the purpose of ensuring that the Act and regulations are complied with, to copy any records such as electronic records or documents into a readable form using devices or systems normally used in carrying on business in the place. For example, an officer could copy electronic payroll records onto a computer disk.

5. Question any person on matters the officer thinks may be relevant to the investigation or inspection — s. 91(6)(e)

Clause 6(e) allows an employment standards officer to question any person on any matter the officer thinks may be relevant to the investigation or inspection. The officer may interview such persons separately by virtue of s. 91(13) (see discussion of s. 91(13) below). See also the discussion under s. 91(12) regarding the positive duty to answer questions that the officer thinks may be relevant to the investigation or inspection.

Written demand — s. 91(7)

Employment standards officers have the power to require production of records or other things thought to be relevant to an inspection or investigation under s. 91(6)(b). Where an officer's verbal request for production is not complied with, he or she may demand production. This demand must be in writing and must specify the nature of what is being requested. A demand for "all records relevant to this claim" is probably too vague to meet the requirements of this section, while a demand for "all paper and electronic timesheets or payroll records for the period . . . to . . ." would likely be sufficient. Under s. 91(8) the person who has custody of such records or other things must comply with the demand.

Obligation to produce and assist — s. 91(8)

This provision is similar to the corresponding provision in the former Employment Standards Act in ss. 64(2) and (3). It means that an employment standards officer may, for the purpose of ensuring that the Act and regulations are complied with, demand (in writing as per s. 91(7)) the person who has custody of a record or thing to produce it and to provide any assistance reasonably necessary to interpret it or to produce it in a readable form. This could include printing out and explaining the employer's payroll records as well as transferring electronic records onto a disk for the officer. The scope of the language is broad enough that anything less than full cooperation may be viewed as a violation. Note that the officer may require any "person" to provide assistance under this section given that there may be persons other than (for example) the employer who have custody of records or documents relevant to the investigation. See the discussion concerning the definition of "person" in ESA Part I, s. 1.

Records and things removed from place — s. 91(9)

This provision is similar to s. 63(1)(c) of the former Employment Standards Act Section 91(9) allows an officer to take records or other things in order to facilitate an inspection or investigation. The officer is required however to return such records or things within a reasonable time. The receipt for records ensures that the owner of the records has a simple way of reclaiming the records, and the officer's investigation file will indicate when and where these records were borrowed and subsequently returned.

Copy admissible in evidence — s. 91(10)

Section 91(10) provides that a copy of any record certified by an employment standards officer as a true copy is evidence of the record in the same way the original would be.

Obstruction — ss. 91(11) and (12)

These provisions are similar to those in s. 64 of the former Employment Standards Act. Sections 91(11) and (12) set out the level of compliance expected from people involved in an investigation or inspection by an employment standards officer. Note that the prohibition in this section may apply to any "person" who may be in a position to hinder, obstruct or interfere with an investigation or inspection. See the discussion concerning the definition of "person" in ESA Part I, s. 1.

The terms "hinder, obstruct or interfere with" in subsection (11) are intended to ensure that any person required to cooperate with the officer in his or her investigation or inspection does so. Section 91(12)(a) imposes a positive duty to answer questions. Section 91(12)(b) prohibits a person required to produce records or other things under s. 91 (8) or to answer questions under s. 91(12)(a) from providing information that the person knows to be false or misleading.

Separate inquiries — s. 91(13)

Section 91(13) ensures that an officer may interview separately any parties the officer thinks may have information relevant to the investigation or inspection; this helps to prevent "tailoring" of evidence.

Section 91.1 — Self-audit

Self-audit — s. 91.1(1)

This provision was introduced by the Stronger Workplaces for a Stronger Economy Act, 2014, S.O. 2014, c. 10 ("SWSEA"), effective May 20, 2015. Under subsection (1), an employment standards officer may, by providing written notice to an employer, require the employer to conduct an examination of the employer's records, practices or both for the purpose of determining whether or not it is in compliance with the Act or regulations.

Examination and report — s. 91.1(2)

This provision was introduced by the SWSEA, effective May 20, 2015. Subsection (2) provides that if an employer is required to conduct an audit as per subsection (1) the employer is required to report the results of the audit to the officer. The employer's report must contain certain information, in accordance with the notice that they received from the officer instructing them to complete the self-audit.

Notice — s. 91.1(3)

This provision was introduced by the SWSEA, effective May 20, 2015. Subsection (3) sets out the details of what must be included in the written notice given to an employer under subsection (1), which requires the employer to conduct a self-audit.

Same — s. 91.1(4)

This provision was introduced by the SWSEA, effective May 20, 2015. Subsection (4) states that the officer's notice to the employer may specify the method the employer is to use in carrying out the audit, the format of the employer's report and may also require the employer to include any other information in the report that the officer considers appropriate.

Same — s. 91.1(5)

This provision was introduced by the SWSEA, effective May 20, 2015. Subsection (5) provides that the notice given by the employment standards officer requiring the employer to conduct the self-audit may also require that:

  • The employer include within the report an assessment as to whether the employer has complied with the Employment Standards Act or regulations and whether wages are owing;
  • The employer pay outstanding wages if the assessment shows that wages are indeed owed.

Report — Unpaid wages — s. 91.1(6)

This provision was introduced by the SWSEA effective May 20, 2015. Under subsection (6), if the employer's report included an assessment that an employee or employees are owed wages, the employer will be required to include the names of the employees owed wages and the amounts owed, an explanation of how the amounts owing were calculated and if the officer's notice to the employer had included direction to pay outstanding wages, proof of payment.

Same — Other non-compliance — s. 91.1(7)

This provision was introduced by the SWSEA, effective May 20, 2015. Under subsection (7), if the employer's report includes an assessment that reveals non-monetary contraventions, the employer will be required to provide a description of measures taken or that will be taken to bring itself into compliance.

Orders — s. 91.1(8)

This provision was introduced by the SWSEA, effective May 20, 2015. Subsection (8) provides that if an employer's report under this section includes an assessment that it has contravened the Act or the regulations, an employment standards officer may issue an order to pay under s. 103 or a compliance order under s. 108, if the officer determines that the employer's assessment is correct.

Inspection, investigation, enforcement not precluded — s. 91.1(9)

This provision was introduced by the SWSEA, effective May 20, 2015. Subsection (9) effectively provides that regardless of any direction given to an employer to complete a self-audit under s. 91.1 and regardless of any response to such direction, employment standards officers retain the ability to investigate or conduct an inspection and take whatever enforcement action the officer considers to be appropriate.

Same — s. 91.1(10)

This provision was introduced by the SWSEA, effective May 20, 2015. Subsection (10) specifically provides that without restricting the generality of the subsection (9) an employment standards officer is able to conduct an investigation or inspection that covers part or all of the period of the self-audit as specified in the notice given under subsection (1) and the officer is empowered to take any enforcement action he or she considers appropriate, including issuing an order to pay wages or a compliance order if the officer determines that the employer did not comply with the Act or the regulations during the period or part of a period of the self-audit as specified in the notice given under subsection (1).

False information — s. 91.1(11)

This provision was introduced by the SWSEA, effective May 20, 2015. This provision makes it an offence for an employer to provide false or misleading information in a report required under s. 91.1.

Section 92 — Warrant

Warrant — s. 92(1)

This provision was introduced by the Employment Standards Act, 2000. It allows an employment standards officer to obtain a warrant for entry into premises which may include a business or dwelling, because the officer was unable or has reasonable grounds to believe he or she will be unable to enter the premises during regular business hours (or in the absence of regular business hours, during daylight hours) or to enter a dwelling without the consent of the occupier.

It also allows the officer to obtain warrants to examine, require for production, remove and copy or use data storage, information processing or retrieval systems normally used in the workplace to produce in readable form, records or other things the officer thinks may be relevant to the inspection or investigation. Lastly, it allows the officer to obtain a warrant in order to question any person on matters the officer thinks may be relevant to the inspection or investigation. (The only reference to warrants in the former Employment Standards Act was in s. 63(2) which required an officer to obtain a search warrant under section 158 of the Provincial Offences Act, R.S.O. 1990, c. P.33, in order to enter a dwelling without the consent of the occupier.)

Clause (c) was added by the Employment Protection for Foreign Nationals Act (Live-in Caregivers and Others), 2009, S.O. 2009, c. 32 ("EPFNA") effective March 22, 2010 (EPFNA was amended and renamed the Employment Protection for Foreign Nationals Act, 2009, effective November 20, 2015) to extend the circumstances under which a justice of the peace may issue a warrant for entry to include those situations where there are reasonable grounds to believe that an offence was committed or is being committed and that information or other evidence will be obtained by the officer through the production, examination or removal of records or other documents or by questioning a person.

Generally, this clause ensures that where an employment standards officer is investigating or inspecting at a site and comes to have reasonable grounds to believe that an offence has been committed, he or she will be able to obtain a warrant before continuing work at the site.

This subsection requires information under oath to satisfy a justice of the peace that the officer has been prevented or that there are reasonable grounds to believe that the officer will be prevented from exercising a right of entry under s. 91(1) or a power under s. 91(6) or that there are reasonable grounds to believe that an offence was or is being committed and information or other evidence will be obtained by the exercise of the officer's powers under s. 91(6).

Expiry of warrant — s. 92(2)

This provision limits the effective period of a warrant issued under s. 92(1). Section 92(2) requires that a warrant issued under this section have an expiry date no later than 30 days after the warrant was issued. This 30-day period is subject to an extension under s. 92(3).

Extension of time — s. 92(3)

This section allows the warrant issued under s. 92(1) which must have an expiry date no more than 30 days after the warrant was issued (pursuant to s. 92(2)), to be extended for up to 30 days, on application of the officer named in the warrant and without notice to the persons subject to the warrant.

Use of force — s. 92(4)

This provision will allow an officer to call the police for assistance to execute a warrant. For example, where an officer with a warrant issued under this section was denied entry to a workplace, he or she may call upon the police to assist the officer to enter the premises in order to conduct an investigation or inspection under the Employment Standards Act, 2000.

Time of execution — s. 92(5)

An officer who has obtained a warrant under this section may use it to gain entry under s. 91(1) or exercise any power under s. 91(6) only between the hours of 8 a.m. and 8 p.m. This restriction also applies to a police officer called to assist in the execution of the warrant. The only exception to this limitation is made where the warrant itself specifies otherwise. See, however, the discussion of s. 92(6) below that deals with the execution of a warrant obtained under this section.

Other matters — s. 92(6)

This subsection was amended by the Government Efficiency Act, 2002, S.O. 2001, c. 9, effective November 26, 2002, by the deletion of a reference to s. 91(2). Because s. 92(6) deals with warrants issued under s. 92(5) and that subsection provides that a warrant may be executed between 8 a.m. and 8 p.m., there was a possible conflict in the reference to s. 91(2), which provides that an investigation and inspection can only be conducted during regular business hours, or where there are no regular business hours during daylight hours.

Subsection 92(6) provides that ss. 91(4) to (13) will apply to an officer executing a warrant issued under s. 92(1). See the discussion of these subsections above.

Same — s. 92(7)

This subsection was added by EPFNA to ensure that where a warrant has been issued by a justice of the peace under s. 92(1) authorizing an employment standards officer to enter premises so that he or she may exercise his or her powers under s. 91(6), the officer is not limited to asking questions of witnesses related to the execution of the warrant. Specifically, it provides that in exercising his or her powers under s. 91(6)(e), the officer may question any person on any matter the officer thinks may be relevant to an investigation or inspection.

Section 93 — Posting of notices

This provision is similar to s. 75 of the former Employment Standards Act but with an additional provision that allows officers to require the posting of reports or copies of a report. In addition, the authority to require posting under this section rests with the employment standards officer rather than the Director.

The notice referred to in clause (a) may consist of a general outline of all of the basic provisions of the Employment Standards Act, 2000 or, on the other hand, may focus on one or more standards or provisions of particular relevance to the workplace involved. The report or part of a report referred to in clause (b) may be a copy of the actual officer's report (or excerpts of it) prepared upon the conclusion of the investigation or inspection.

See also the discussion of the general posting requirement in s. 2 in ESA Part II, s. 2.

Section 94 — Powers under the Canada Labour Code

94 If a regulation is made under the Canada Labour Code incorporating by reference all or part of this Act or a regulation under it, the Board and any person having powers under this Act may exercise the powers conferred under the Canada Labour Code regulation.

This provision is substantially unchanged from its corresponding provision in the former Employment Standards Act (s. 75.2). Federal regulations made under the Canada Labour Code, R.S.C. 1985, c. L-2, make the federal Code provisions concerning employment standards (and labour relations and occupational health and safety) inapplicable to the nuclear operations of Ontario Power Generation and provide that Ontario law in these areas applies instead. The same regulations that "incorporate by reference" the Ontario statutes and regulations also provide that they may be enforced by the same bodies and persons who enforce the law provincially. Section 94 is intended to support this in the employment standards context by making it clear that the Ontario Labour Relations Board and other persons having powers under the Employment Standards Act, 2000 (such as employment standards officers and the Director of Employment Standards) have jurisdiction with respect to the federal regulation which incorporates the Employment Standards Act, 2000 and its regulations.

Section 95 — Service of documents

Service of documents — s. 95(1)

Section 95 was amended by the Employment Standards Amendment Act (Temporary Help Agencies), 2009, S.O. 2009, c. 9, effective November 6, 2009. The new section expanded the methods by which most documents can be served under the Employment Standards Act, 2000.

Please note that the methods of service set out in this section do not apply to notices of civil proceeding served on the Director (s. 8). For more information on the service provisions specific to notices of civil proceedings, please see subsections 8(3) – 8(5).

With the above exceptions, the methods of service set out in subsection 95(1) apply to the service of any orders, notices or other documents that must be served in accordance with this provision under the Act.

Clause (a) applies when serving a document on an individual, clause (b) applies when a document is to be served on a corporation, and clauses (c) to (f) apply to the service of a document on any "person" including an individual or a corporation. For interpretation of the term "person", please see ESA Part I, s. 1. Service effected per clause (g) must follow the Board's specifications.

1. Service on an individual — s. 95(1)(a)

In the case of service on an individual, service of a document can be effected by personally leaving a copy of the document with the individual.

2. Service on a corporation — s. 95(1)(b)

In the case of service on a corporation, the service of a document can be effected by:

  1. Personally leaving a copy of the document with an officer, director or agent of the corporation or
  2. By leaving a copy of the document with an individual who appears to be in control or management of the place of business.

Whether a person is an officer or director of a corporation can generally be verified by consulting the most recent version of the relevant Corporation Profile Report.

This provision also allows a document to be served on, for example, a manager of one of the corporation's business outlets. Since service can be effected on a "person who appears to be in control or management", it follows that the person need not be manager so long as he or she appears to be in control of the operation at the location. For example, service might be effected on the single employee who is in charge of a kiosk operated by the corporation (assuming there was no off-site supervisor and the employee was considered to be in control of the operations at the kiosk).

3. Service by verifiable mail — s. 95(1)(c)

Service can be effected on any person by verifiable mail where the document is sent to the person's "last known business or residential address". The specific reference to the residential address clarifies that the document can be sent to an employee's last known home address and where the employer is a sole proprietor who, for example, and has gone out of business, the order can be served at the individual's residence.

It is Program policy that three Canada Post services fall within the meaning of verifiable mail. These are Registered Mail, Xpresspost and Priority Courier. However, it is important to note that Xpresspost and Priority Courier will comply with the requirements of this provision only if the "signature upon delivery" option is selected.

4. Service by fax or electronic mail — s. 95(1)(d)

A document may be served on any person by fax or electronic mail if the intended recipient has the necessary equipment to receive the fax transmission or electronic mail.

5. Service by courier service — s. 95(1)(e)

A document may be served on a person using a courier service.

6. Service at person's last known business or residential address — s. 95(1)(f)

Service may be effected by leaving the document, in a sealed envelope addressed to the person, with an individual who appears to be at least 16 years of age at the person's last known business or residential address.

As noted under "Service by Verifiable Mail — s. 95(1)(c)" above, the specific reference to the residential address clarifies that where the employer is a sole proprietor, for example, and has gone out of business, the order can be served at the individual's residence.

7. Service in a manner ordered by the board — s. 95(1)(g)

Finally, a document may be served in a manner ordered by the Board under subsection (8). Subsection 95(8) allows the Ontario Labour Relations Board to order that service be effected in a manner that it considers to be appropriate in the circumstances.

The following types of documents must be served in accordance with this section:

  • Section 74.14 order to recover fees — s. 74.14(4)
  • Letter advising of order under s. 74.14 — s. 74.14(4)
  • Section 74.16 order for compensation, temporary help agency — s. 74.16(4)
  • Letter advising of order under s. 74.16 — s. 74.16(4)
  • Section 74.17 order re: client reprisal — s. 74.17(3)
  • Letter advising of order under 74.17 — s. 74.17(3)
  • Notice of s. 102 meeting — s. 102(3)
  • Section 103 order for wages — s. 103(6)
  • Letter advising of order under s. 103 — s. 103(7)
  • Section 104 order for compensation — s. 104(4)
  • Letter advising of order under s. 104 — s. 104(4)
  • Section 106 order against a director — s. 106(1), (3)
  • Section 107 further order against directors — s. 107(1)
  • Section 108 compliance order — s. 108(4)
  • Letter advising of order under s. 108 — s. 108(4)
  • Letter advising of refusal to issue order under s. 110 — ss. 74.14, 74.16, 74.17, 103, 104 and 108
  • Section 113 notice of contravention — s. 113(3)
  • Third party demand — s. 125(3)
  • Letter advising order has been filed in court — s. 126(2)
  • Written notice of termination — s. 4(1) of O. Reg. 288/01

Same — s. 95(2)

This provision was introduced by the Employment Standards Amendment Act (Temporary Help Agencies), 2009 which came into force on November 6, 2009.

This subsection must be read in conjunction with s. 95(1) which establishes the different methods by which most documents may be served. This provision states that where a document is served either:

  • On an individual by personally leaving a copy of the document with the individual;
  • On a corporation by personally leaving a copy of the document with an officer, director or agent of the corporation, or with an individual at any place of business of the corporation who appears to be in control or management of the place of business; or
  • By leaving the document, in a sealed envelope addressed to the person, with an individual who appears to be at least 16 years of age at the person's last known business or residential address;

The service is deemed to be effective at the time the document is left with the individual.

Same — s. 95(3)

This provision was introduced by the Employment Standards Amendment Act (Temporary Help Agencies), 2009 which came into force on November 6, 2009.

Where a document is served in accordance with s. 95(1)(c) via mail addressed to the person's last known business or residential address using a method of mail delivery that permits the delivery to be verified, the service of the document is deemed to be effective on the fifth day after the document is mailed unless the person to whom the mail is sent establishes, per s. 95(6), that the service was not, in fact, effective at that time due to an absence, accident, illness or cause beyond the person's control.

Reference can be made to the Legislation Act, 2006, S.O. 2006, c. 21, Sched. F when interpreting the timing portion of this subsection. Section 89(3) of that Act states:

A reference to a number of days between two events excludes the day on which the first event happens and includes the day on which the second event happens, even if the reference is to "at least" or "not less than" a number of days.

This means that when determining the deemed service date, the day the document is mailed will not be counted, but the following calendar days are counted. For example, a letter mailed on a Wednesday is deemed to be served the next Monday. It is possible that the deemed service date could fall on a weekend or public holiday even if there is no mail service on that day. For example, if a document is mailed on a Tuesday, the service would be deemed to have taken place on the following Sunday.

Subject to s. 95(6), the deemed service date applies regardless of when the mail actually arrived at the recipient's address.

Same — s. 95(4)

This provision was amended by the Employment Standards Amendment Act (Temporary Help Agencies), 2009, which came into force on November 6, 2009 and is similar to the previous subsection 95(2) of the Employment Standards Act, 2000.

Where a document is served by fax or email in accordance with s. 95(1)(d), the service occurs on the day the fax or email is sent unless the transmission occurs after 5:00 p.m. or on a Saturday, Sunday or a public holiday. If the document is faxed or sent via email after 5:00 p.m. or on a Saturday, Sunday or public holiday, the service is deemed to be effective on the next day that is not a Saturday, Sunday, or public holiday. Subsection 95(6) indicates that this deemed service date does not apply if the person to whom the documents were faxed or emailed establishes that the service was not effective at the time set out above due to an absence, accident, illness or cause beyond the person's control.

For example, assume a document is served via email attachment and the email is transmitted at 5:10 p.m. on a Wednesday evening. The document will be deemed to have been served the following day, Thursday, unless that day happens to be a public holiday or if the recipient establishes the service was not effective due to one of the reasons set out in s. 95(6).

Same — s. 95(5)

This provision was introduced by the Employment Standards Amendment Act (Temporary Help Agencies), 2009 which came into force on November 6, 2009.

Where a document is served in accordance with s. 95(1)(e) via courier, the service of the document is deemed effective two days after courier takes the document unless the person to whom the document is sent establishes that the service was not, in fact, effective at that time due to an absence, accident or illness or cause beyond the person's control.

Reference can be made to the Legislation Act, 2006 when interpreting the timing portion of this subsection. Section 89(3) of that Act states:

This means that when determining the deemed service date, the day the document is provided to the courier will not be counted, but the following calendar days are counted. For example, assume a document is given to the courier on a Monday. The service would be effective on the following Wednesday. It is possible that a deemed service date could fall on a weekend or public holiday.

Subject to s. 95(6), the deemed service date applies regardless of when the document actually arrived by courier.

Same — s. 95(6)

This provision was introduced by the Employment Standards Amendment Act (Temporary Help Agencies), 2009.

If service under s. 95(1) is attempted or effected by verifiable mail, fax, email, or courier, the deemed service provisions in subsections (3), (4) and (5) do not apply if the person on whom the document is being served establishes that she or he did not, in fact, receive the document in the time period specified in the subsection due to an absence, accident, illness or cause beyond the person's control. The onus of proving the absence, accident, illness or cause beyond the person's control lies with the person refuting the service.

Same — s. 95(7)

This provision was introduced into s. 95 by the Employment Standards Amendment Act (Temporary Help Agencies), 2009.

If the Director considers another method of service that is not addressed in subsections 95(1) (a) to (f) to be appropriate in the circumstances, the Director may direct the Ontario Labour Relations Board to consider that alternate manner of service.

Same — s. 95(8)

This provision came into force on November 6, 2009. If the Ontario Labour Relations Board is directed by the Director of Employment Standards to consider a manner of service that is different from those outlined in s. 95(1) clauses (a) to (f), the Board must consider the manner of service put forward and may order that the service be effected in any manner it considers appropriate in the circumstances.

Same — s. 95(9)

Where the Ontario Labour Relations Board makes an order under s. 95(8) that service be effected in the manner the Board considers appropriate, it must indicate when the service is deemed to be effective.

Same — s. 95(10)

This provision was introduced by the Employment Standards Amendment Act (Temporary Help Agencies), 2009 and is substantively similar to what were previously ss. 103(7) and 113(4) of the Employment Standards Act, 2000.

Section 95(10) states that there is evidence of the proper issuance, service and receipt of an order or notice where the employment standards officer who issued the order or notice certifies, in a document, that the order or notice was served on the person and states the method of service used. The certificate must be accompanied by a copy of the order or notice that is certified by the officer to be a true copy. The officer is the only person who needs to certify the accuracy of the copy.

Such a certificate is not irrefutable proof of the proper issuance, service and receipt of the order or notice. However, the certificate is acceptable as evidence before a judge or other decision-maker of the proper issuance, service, and receipt of the notice or order, subject to being proven as any other issue of fact before that decision-maker.

Note that s. 95(11) addresses certificates of service relating to documents other than orders or notices.

Same — s. 95(11)

This provision was introduced by the Employment Standards Amendment Act (Temporary Help Agencies), 2009 which came into force on November 6, 2009.

Section 95(11) states that there is evidence of the proper service and receipt of document under this Act if a certificate is issued by the person who served the document certifying that the document was served and stating the method of service used. The certificate must be accompanied by a copy of the document that is certified by the person who served the document, to be a true copy.

This subsection applies to any "person" who serves a document under this Act. For interpretation of the term "person", please see ESA Part I, s. 1.

Any certificate created per this subsection is not irrefutable proof of service of the document, but is acceptable as evidence before a judge or other decision-maker of service and receipt, subject to a decision-maker making a different finding of fact.