Part XXII - Complaints and enforcement

The intent of the provisions in Part XXII of the Employment Standards Act, 2000 is to establish rules for enforcement. Part XXII sets out the rules regarding the filing of complaints, enforcement by employment standards officers through orders for wages and compensation, as well as the new orders for compliance and notices of contravention introduced in the Employment Standards Act, 2000 and enforcement by arbitrators where there is a collective agreement.

Part XXII also establishes restrictions on the recovery of wages under the Act, settlement procedures and limitation periods on issuing, rescinding and amending orders and notices of contravention.

Section 96 — Complaints

This provision means that a person filing a complaint with the Ministry of Labour, alleging a violation of the Employment Standards Act, 2000, must file the complaint in a written or electronic form approved by the Director of Employment Standards.

"Person" means not only an individual but also includes a trade union as per ESA Part I, s. 1. It also includes a corporation, by virtue of the definition of person in the Legislation Act, 2006, S.O. 2006, c. 21, Sched. F. As a result, a corporation (e.g., a company seeking information under ESA Part XIX, s. 77(1) as a possible, new building services provider) could file a complaint if the owner/manager of the building failed to provide the prescribed information.

Subsection 41.1.1(6) in Part XI.1 of the ESA (Written Policy on Electronic Monitoring) provides that a complaint can be made only with respect to some of the provisions in Part XI.1.  See ss. 41.1.1(6) for information.

The mandatory use of either of the approved forms is reinforced by s. 96(2), which states that complaints that are not in the approved form are deemed not to have been filed. One purpose behind requiring a complaint to be filed on an approved form is to avoid employees filing a complaint in letter form, and thereby unintentionally giving up their rights to sue the employer civilly, pursuant to the election under s. 97 — see ESA Part XXII, s. 97 for a further discussion. Requiring the complaint to be filed on the approved form assists in alerting the employee to the consequences of their election, and eliminates the unintentional loss of civil rights that could arise if the complaint was filed in letter form.

Another purpose of requiring a complaint to be filed on an approved form is to ensure that the limitation period in ss. 114 and 139 will not begin running where the employee visits or writes to the Ministry to inquire about their rights in a particular situation.

Effect of failure to use form — s. 96(2)

Section 96(2) states that if the complaint is not filed in the approved form, then the complaint shall be deemed not to have been filed. There are two main reasons for this:

1. So that the election in s. 97 will not be triggered; and
2. The complaint will not be considered to have been filed and thereby start the two-year limitation period in ss. 114 and 139 running,

except when the employee has filed a complaint on the approved form and has had an opportunity to be made aware of the consequences of filing a complaint with the Ministry.

Limitation — s. 96(3)

Section 96(3) imposes a two-year limitation period on filing a complaint under the Employment Standards Act, 2000 by stating that a complaint filed more than two years after a contravention has occurred is deemed not to have been filed.

It should be noted that the Program’s position is that the two-year limitation on recovery of monies in ESA Part XXII, s. 111 does not apply to an order for compensation or reinstatement. Program policy continues to be that as the monies owing under a compensation order come due on the date the officer issues the order, they were due after the complaint was filed and the s. 111 limitation would therefore never serve to restrict recovery. In addition, the limitation on recovery set out in s. 111 could have no application to an order for reinstatement because the subject of the order was not monies that came due under the Act. Note that despite the two-year limitation period set out in s. 96(3), it may be possible for the two-year time limit to be extended in exceptional cases. The Court of Appeal decision in Halloran v. Sargeant, 2002 CanLII 45029 (ON CA) held that in the appropriate circumstances, the equitable doctrine of fraudulent concealment applies to relieve against statutory time limits on recovery. See ESA Part XXII, s. 111(8) for a discussion of the Halloran v. Sargeant decision.

The question has arisen as to whether the Limitations Act, 2002, S.O. 2002, c. 24 applies to the Employment Standards Act, 2000. The Limitations Act, 2002 limits the period of time during which a person may initiate court proceedings in Ontario in respect of a claim. In Rand v. Kashruth Council of Canada/Le Conseil Cacherout du Canada, 2016 CanLII 17259 (ON LRB), the claimant sought to bring a claim for reprisal two and half years after the alleged reprisal took place. The claimant argued that ss. 5(1), 5(2) and 16(1) of the Limitations Act, 2002 effectively bi-passes s. 96(3) of the Employment Standards Act, 2000, therefore he was not bound by the two-year limitation period. Section 5(2) of the Limitations Act, 2002 establishes the principle that an individual is presumed to have known of the act(s) or omission(s), that caused damage, on the day they actually occurred, unless the contrary is proved. Section 5(1) sets up the rules applicable to the issue of discoverability. Section 16(1)(a) provides that there is no limitation period if the proceeding is for a declaration if no consequential relief is sought. Here, the claimant argued that the two-year time limit should commence on the date he learned about the alleged reprisal, which was 18 months after the reprisal incident occurred. Furthermore, the claimant argued that no limitation period applied to his claim because he wanted only a declaration that the employer breached the ESA by reprising against him and not any financial remedy (i.e., no consequential relief).

The Board disagreed with the claimant’s arguments and held that the Limitations Act, 2002 is not applicable to the Employment Standards Act, 2000. The Board considered s. 2(1) of the Limitations Act, 2002, which states that the Act applies to claims pursued in court proceedings, and held that proceedings before the Board and an ESO cannot be characterized as a court proceeding. The Board also noted that it does not possess statutory authority to alleviate against the two-year time limit in s. 96(3) by reading in the principles the claimant extracted from the Limitations Act, 2002.

Section 96.1 — Steps required before complaint assigned — Repealed

Section 97 — When civil proceeding not permitted

When civil proceeding not permitted — s. 97(1)

Section 97(1) provides that an employee who files a complaint for unpaid wages or a failure to comply with Part XIII (Benefit Plans) may not launch a civil action in respect of the same matter. This is intended to prevent duplicative proceedings.

Note that it is s. 98 of the Employment Standards Act, 2000 that addresses the situation where an employee who has commenced a civil proceeding subsequently files a complaint. Section 97 addresses the converse situation, i.e., where an employee who has filed a complaint subsequently commences a civil proceeding.

Accordingly, while s. 98(1) provides that an employee who commences a civil proceeding and then files a complaint "may not. . . have such a complaint investigated", s. 98 only applies where the civil proceeding is started before the complaint is filed. Where the complaint is filed first, it is s. 97 that applies, and there is nothing in s. 97 that says that the employee cannot have that complaint investigated. (It may be that in light of s. 97 a court would not allow the civil proceeding to continue, but that is a matter for the court, not the Program.)

1. Wages

Section 97(1) refers to complaints about unpaid "wages". Note that "wages" does not include "compensation" for losses stemming from a contravention of Parts XIV (Leaves of Absence), XVI (Lie Detectors), XVII (Retail Business Establishments) or XVIII (Reprisal) of the Act. (That "wages" and "compensation" are two different things is clear from ss. 103 and 104; an order for the payment of wages is made under s. 103, while an order for the payment of "compensation" is made under s. 104.) Consequently, an employee who files a complaint alleging a violation of Part XIV, XVI, XVII or XVIII is not precluded from pursuing a civil action with respect to the violation.

2. Same matter

Subsection 97(1) precludes an employee who has filed an unpaid wages or Part XIII complaint from commencing a civil action for the "same matter". As a result, if an employee was owed both overtime and vacation pay, he or she could not file a complaint with the Ministry for overtime pay and also commence a civil action for vacation pay, as the civil proceedings would be for the "same matter", i.e., unpaid wages.

However, an employee may file a complaint about unpaid wages, e.g., overtime pay, and then commence a civil action for wrongful dismissal, since these proceedings do not involve "the same matter".

3. Cooling off period

Note that the prohibition in s. 97(1) is subject to s. 97(4), which provides for a two-week "cooling off" period in which the employee may withdraw the employment standards complaint and thus avoid losing the right to commence a civil action. See the discussion of s. 97(4) below.

Same, wrongful dismissal — s. 97(2)

Subsection 97(2) provides that an employee who files a complaint for termination pay or severance pay is not entitled to commence a civil action for wrongful dismissal relating to the same termination or severance of employment as that on which the claim for termination or severance pay was based.

As noted in the discussion of s. 97(1), if the complaint is filed before a civil proceeding is commenced, s. 98 has no application and so there will be no bar to the complaint being investigated by the Ministry.

Note that employees who have filed a claim alleging a violation of Parts XIV (Leaves of Absence), XVI (Lie Detectors, XVII (Retail Business Establishments) or XVIII (Reprisal) for a termination or failure to reinstate are not precluded from commencing a civil action for wrongful dismissal, because a complaint respecting those Parts of the Act is not a complaint alleging an entitlement to termination or severance pay, but rather a complaint asking for reinstatement or compensation or both.

1. Wrongful dismissal

In an action for wrongful dismissal, an employee is seeking damages for the employer’s failure to give notice of termination in accordance with the employment contract. The contractual notice may be based on an express term in the employment contract that spells out how much notice the employee is to receive; however, in the absence of such an express term, the courts imply a term for "reasonable notice" into the contract. What is considered "reasonable notice" is generally much longer than the notice periods under the Act, and awards of damages for wrongful dismissal can be correspondingly greater, in some cases exceeding two years' salary. Note, however, that under the common law employees are said to have a "duty to mitigate", meaning that generally they must attempt to reduce their losses, say by finding or trying to find new employment or other sources of income during the period in which notice, had it been given, would have been running. This duty to mitigate does not apply to notice of termination, termination pay or severance pay under the Act (although in some cases a refusal of alternative employment with the employer will disentitle an employee to notice, termination pay or severance pay). Note also that employees covered by a collective agreement may not sue for wrongful dismissal, since they are generally limited to whatever remedies may be available under the collective agreement.

2. Termination pay

The purpose of s. 97(2) is the same as the purpose of s. 97(1), that is, to avoid duplicative proceedings. Although termination pay under the Act and damages for wrongful dismissal are based on different wrongs (failure to give notice as required by the Act versus failure to give notice as required by the employment contract), they are overlapping in that they both stem from the employer’s termination of the employment relationship and are based on the employer’s failure to give notice of termination, they often involve similar issues and statutory notice or termination pay that was provided by the employer will reduce the damages that would otherwise be awarded for wrongful dismissal.

3. Severance pay

Insofar as severance pay is concerned, the purpose of this provision is again the same as the purpose of s. 97(1), that is, to avoid duplicative proceedings. While severance pay under the Act and damages for wrongful dismissal are based on different wrongs (failure to pay severance pay as required by the Act versus failure to give notice as required by the employment contract), they are overlapping to some extent in that they both stem from the employer’s ending of the employment relationship, they often involve similar issues and in at least some circumstances the courts will reduce the damages that would otherwise be awarded for wrongful dismissal by the amount of the employee’s severance pay entitlement — see Stevens v. The Globe and Mail, 1996 CanLII 10215 (ON CA).

4. The same termination or severance of employment

An example of a situation in which a civil action for wrongful dismissal may not be considered to relate to the same termination of employment as a termination pay complaint under the Act would be where the employee was dismissed after a year of employment, rehired one month after the dismissal and then laid off two weeks later for more than 13 weeks in circumstances where neither clause 56(2)(b) or (c) were applicable. In that situation, the employee should be able to claim termination pay under the Act in regards to the deemed termination due to a lay-off lasting longer than a temporary lay-off, and also sue the employer civilly for wrongful dismissal based on the earlier dismissal. The two terminations are clearly not the same termination. Note, however, that because the employee’s last period of employment is separated by not more than 13 weeks from the preceding period, the employee’s entitlement to termination pay would be calculated by adding together both the period of employment that ended in the dismissal and the period that ended as a result of the lay-off.

Amount in excess of order — s. 97(3)

Subsection 97(3) provides that the prohibition in ss. 97(1) and (2) against a complainant commencing a civil action applies even in situations where the amount alleged to be owing in the civil action is greater than the amount for which an order can be issued under the Act. Section 103(4) provides that the maximum amount of wages for which an order can be issued for an employee is $10,000. Thus, where, for example, the employee is owed $18,000 in wages, and files a complaint, the employee will be prohibited from commencing a civil action for the wages, even though the most that the employee will be able to recover on the complaint is $10,000. (Note also that pursuant to clause 97(3)(b), the employee would not be able to commence a civil proceeding in which he or she claimed only the difference ($8,000) between what was recoverable by way of an order ($10,000) and the total amount allegedly owed ($18,000).

Note that while s. 97(3) refers to "the amount for which an order can be issued under this Act" — which if read in isolation could cover orders for compensation issued under s. 104 — the principles of statutory interpretation would require that the subsection be read in context; since s. 97 as a whole is clearly concerned with complaints about unpaid wages and not with complaints alleging a violation of a part of the Act for which a compensation order could be issued, s. 97(3) should not be construed as prohibiting civil actions based on such a violation where a complaint about the violation has been filed.

Withdrawal of complaint — s. 97(4)

This provision provides a two-week "cooling off" period in which the employee can withdraw a complaint and thereby restore the ability to commence a civil action. This two-week period could be used by a complainant employee to consult a lawyer for advice on whether a civil action might be his or her better option in the circumstances. Note that s. 97(4) does not require that the withdrawal be in writing; however, putting it in writing it may lessen the likelihood of dispute.

Although there is nothing in the Employment Standards Act, 2000 that provides for an extension of the two-week time limit, courts have inherent jurisdiction to extend limitation periods. For an example of a case where the two-week period in s. 97(4) was extended, see Scarlett v. Wolfe Transmission Ltd., 2002 CanLII 53229 (ON SC).

Section 98 — When complaint not permitted

When complaint not permitted — s. 98(1)

This provision prohibits an employee from filing a complaint about unpaid wages or a failure to comply with Part XIII where the employee has commenced a civil proceeding seeking a remedy for the same matter. This section mirrors the wording of s. 97(1), which deals with the converse prohibition, i.e., the barring of an employee from commencing a civil action where the employee has filed a complaint with the Ministry under the Employment Standards Act, 2000.

At the Small Claims Court level, a proceeding is commenced by filing a claim (with two copies for each defendant) with the clerk of the Small Claims Court. After obtaining payment of the court fees, the clerk dates, signs and seals the claim and assigns it a court file number. It is only once this has happened that the action is considered to have been commenced.

At the Superior Court of Justice (formerly General Division) level, a proceeding is commenced by the court Registrar’s act of dating, signing, sealing and assigning a court file number to an "originating process" prepared by the plaintiff. Examples of an originating process include a Statement of Claim and a Notice of Action.

At the Superior Court of Justice in Toronto, lawyers can also commence proceedings electronically where necessary arrangements have been made with court officials.

Under the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, civil proceedings may also be commenced by a counterclaim, cross claim, third-party claim or judicial review application.

Note that s. 97 of the Act addresses the situation where an employee who has filed a complaint subsequently commences a civil proceeding, whereas s. 98 addresses the converse situation, i.e., where an employee who has commenced a civil proceeding subsequently files a complaint.

Accordingly, while s. 98(1) provides that an employee who commences a civil proceeding "may not. . .have such a complaint investigated", this does not prevent or terminate an investigation of a complaint where the employee commences a civil proceeding after filing a complaint; s. 98 applies only to prohibit a complaint from being filed or investigated if a civil proceeding was commenced before the complaint was filed.

Same, wrongful dismissal — s. 98(2)

This provision prohibits an employee from filing a complaint for termination or severance pay where the employee has commenced a civil proceeding for wrongful dismissal relating to the same termination or severance of employment. This section mirrors the wording of s. 97(2), which deals with the converse proposition, i.e., the barring of an employee from commencing a civil proceeding for wrongful dismissal where the employee has filed a complaint under the Act with the Ministry.

Note that s. 97 of the Act addresses the situation where an employee who has filed a complaint subsequently commences a civil proceeding, whereas s. 98 addresses the converse situation, i.e., where an employee who has commenced a civil proceeding subsequently files a complaint. Thus it is s. 97, not s. 98, that applies where the complaint is filed first.

Accordingly, while s. 98(2) provides that an employee who commences a civil proceeding "may not. . .have such a complaint investigated", this does not prevent or terminate an investigation of a complaint where the employee commences a civil proceeding after filing a complaint.

Issue estoppel

The election of remedies provisions in ss. 97 and 98 eliminate the possibility of issue estoppel arising as in Rasanen v. Rosemount Instruments Ltd., 1994 CanLII 608 (ON CA), where the employee lost on an issue before a referee under the Act and was later estopped from relitigating that issue in court in a wrongful dismissal action involving much more money than the employment standards matter.

Section 99 — When collective agreement applies

When collective agreement applies — s. 99(1)

This provision effectively deems the Employment Standards Act, 2000 to be part of the collective agreement, and makes it enforceable against the employer, as if it were part of the collective agreement, if the contravention of or failure to comply with the Act occurs:

1. When the collective agreement is or was in force;
2. When its operation is or was continued as described under s. 58(2) of the Labour Relations Act, 1995, S.O. 1995, c. 1, Sched. A ("LRA 1995"), sometimes referred to as the "bridging period" between collective agreements; or
3. During the period that the parties to the collective agreement are or were prohibited by s. 86(1) of the LRA 1995 from unilaterally changing the terms and conditions of employment.
   • This is the period after the collective agreement and any bridging periods have expired and before the employer and the union are in a legal strike/lock-out position, in which period the parties are prohibited from changing terms and conditions of employment without each other’s consent, sometimes referred to as the "statutory freeze".

It is obligatory for the arbitrator or board of arbitration to apply the Employment Standards Act, 2000 as if it were actually part of the collective agreement, if the alleged contravention of the Act occurs during one of the following three periods:

When collective agreement is or was in force

A collective agreement is normally in force during its term, which may be as long as several years, but which may not be shorter than one year in length. If the alleged contravention of or failure to comply with the Act occurs while the collective agreement was or is in force, the Employment Standards Act, 2000 is deemed to be part of the agreement and is enforceable against the employer as if it were part of the agreement, i.e., through the grievance procedure. Ultimately, if the grievance is not resolved, it would be heard by an arbitrator or a board of arbitration, which would then release a decision which is enforceable in the same manner as an order or judgment of the court.

The collective agreement may cease to be in force prior to the end of its term under some circumstances, such as where the employer and the union jointly agree to terminate it and the Ontario Labour Relations Board consents, or if the union is decertified (i.e., if the Board declares that the union no longer represents the employees in the bargaining unit). In that event, the employee may file an employment standards complaint with the Ministry for investigation and enforcement.

During the bridging period

Section 58(2) of the LRA 1995 provides that the collective agreement may be extended by the parties for a period of up to one year while the parties are bargaining. Section 58(2) of the LRA 1995 states:

If the alleged contravention of the Employment Standards Act, 2000 occurs or occurred during this bridging period in which the operation of the collective agreement is extended for up to one year, the Act would effectively be deemed to form part of the collective agreement and would be enforceable against the employer as if it were actually part of the collective agreement, i.e., through the grievance procedure and subsequently through arbitration, if that becomes necessary.

During the statutory freeze

Section 86(1) of the LRA 1995 provides that where the employer or the union has given notice to the other party of its desire to bargain for a collective agreement, and no collective agreement is in operation, the employer and the union are prohibited from changing the terms and conditions of employment, except with the consent of both parties. The period of this prohibition, sometimes referred to as the statutory freeze, continues until the earlier of two dates:

• Seven days after the Minister releases to the parties the report of the conciliation board or mediator or 14 days after the Minister releases to the parties a notice that they do not consider it advisable to appoint a conciliation board, as the case may be; and
• When the right of the trade union to represent the employees is terminated.

If an employer is or has been bound by a collective agreement, the Act is enforceable against the employer as if it were part of the collective agreement in respect of an alleged contravention of the Employment Standards Act, 2000 that occurs or occurred during the statutory freeze period, using the grievance procedure. Note, however, that where the union representing an employee has not yet made a first collective agreement with the employer, the matter would not fall within s. 99(1), which only applies where "an employer is or has been bound by a collective agreement". Thus, even though the statutory freeze provided for in s. 86(1) of the LRA 1995 may be in effect, if there has never been a collective agreement between the union and the employer, an employee represented by the union could file a complaint with the Ministry as of right, i.e., the employee does not need to obtain the permission of the Director under s. 99(6).

Complaint not permitted — s. 99(2)

Section 99(2) means that an employee who is covered by a collective agreement will not be able to file a complaint with the Ministry under the Act. In this regard, see the Board’s decision in Johnston v. Brian Cullen Motors, 2004 CanLII 25855 (ON LRB) where the Board confirmed that it had no jurisdiction to hear the appeal of the claimant on the basis that he was prohibited by s. 99(2) from filing a complaint alleging a contravention of the Act because he was represented by a union, which was party to a collective agreement. See also Tender Choice Foods Inc. v. Bolivong, 2004 CanLII 22611 (ON LRB) in which the Board held that the claimant was precluded from filing a complaint under the Act despite her understanding when she filed her claim that she was not in a bargaining unit position or represented by the union. The employer’s evidence, which was not contradicted, was that the claimant had in fact been represented by a trade union bound to a collective agreement at the time of the alleged contravention. The Board noted that the employment standards officer was therefore also precluded from issuing a Notice of Contravention in connection with the complaint.

Section 99(2) should be read together with s. 99(4), which states that s. 99(2) applies even if the employee is not a member of the trade union. It will also apply to probationary employees as they are covered by collective agreements although admittedly they may have fewer protections under the agreement than permanent employees. Section 99(2) is also subject to s. 99(6), which says that the Director may, if they consider it appropriate in the circumstances, allow an employee to file a complaint with the Ministry even though the employee is represented by a trade union that was a party to a collective agreement.

A question that arises is whether the employee is permitted to file a claim for a violation that occurs in two situations: after the statutory freeze period in s. 86(1) of the LRA 1995 has expired but no legal strike or lock-out has begun; or during a legal strike or lock-out.

After the statutory freeze period has expired but the parties have not engaged in either a legal strike or lock-out, the collective agreement is not in force and its operation has not been continued under s. 58(2) of the LRA 1995.

During a legal strike or lock-out, the collective agreement is not in force, its operation has not been continued under s. 58(2) of the LRA 1995 and the statutory freeze period in s. 86(1) of the LRA 1995 has expired.

Consequently, in both situations the provisions of s. 99(1), which make the Act enforceable against the employer as if it were part of the collective agreement in certain situations, do not apply, i.e., employees who are on lawful strike or are being lawfully locked-out cannot have their Employment Standards Act, 2000 rights enforced through the grievance and arbitration procedure.

Therefore, it is Program policy that in these circumstances bargaining unit employees are entitled to file a claim under the Employment Standards Act, 2000 for contraventions or failures to comply with the Employment Standards Act, 2000 that occurred during the lawful strike or lock-out. This is also the case if a legal strike or lock-out ends and the workplace is shut down without the parties entering into a new collective agreement. Note, however, that employees' eligibility to termination and severance pay may be affected if the termination occurs during or as a result of a strike or lock-out. See O. Reg. 288/01 for further discussion of the impact of a strike or lock-out on rights to termination and severance pay.

A further issue involves the building services sector and situations where the employees of the previous employer were unionized and there was a collective agreement in place. If the successor does not employ the employees of the previous employer and is not exempted from its Part XIX (Building Services Providers) obligations by O. Reg. 287/01, the employees are entitled to file a complaint against the successor. This is because the collective agreement does not follow through to bind the successor employer under the LRA 1995 and so cannot be used by employees to enforce their Employment Standards Act, 2000 rights against the successor. Note, however, that the claim against the successor must be for something that the successor — not the previous employer — is liable for, for example, termination and severance pay. If the complaint relates to something owed by the previous employer, the claim can be enforced against the previous employer through the grievance procedure even though the employees are now employed by the successor.

Another question that has arisen is whether bargaining unit employees are entitled to file a complaint with the Ministry where the expiry date of the collective agreement has not passed, but the workplace has shut down and the union and company agreed prior to the closing to terminate the collective agreement upon the closing.

It is Program policy that the bargaining unit employees in this situation are prohibited under s. 99(2) from filing a complaint or having such a complaint investigated by the Ministry. This is because unions and employers cannot simply agree between themselves to terminate a collective agreement upon a plant closing. Section 58(3) of the LRA 1995 requires the union and employer to jointly apply for and receive the consent of the Ontario Labour Relations Board before a collective agreement can be terminated early. If an application for an early termination of the agreement has not been made and granted by the Board, the collective agreement remains in existence, and the union continues to have a duty to represent employees despite the plant closure. See s. 99(6) below for more on this issue.

Have such a complaint investigated

Another point to note is that s. 99(2) indicates that the employee is prohibited from filing or having such a complaint investigated by the Ministry under the Employment Standards Act, 2000. It is clear what the prohibition against filing a claim under the Act involves. The reference to such a complaint is a reference to a complaint enforceable against the employer as if the Act were part of the collective agreement under s. 99(1). In order for a complaint to be enforceable under s. 99(1), the employer must be bound by the agreement and the alleged contravention must occur when the collective agreement was or is in force; when its operation is continued under s. 58(2) of the LRA 1995; or during a statutory freeze period under s. 86(1) of the LRA 1995. As a result, an employee who filed a complaint prior to a collective agreement coming into force would be able to have such a complaint investigated by an employment standards officer.

If an employee alleged that a contravention of the Act occurred prior to when the agreement came into effect, they would be allowed to file a complaint under the Act. However, if it subsequently came to light that the contravention occurred after the agreement came into effect, the Ministry would not investigate or would cease investigating the complaint.

Another example could occur where an employee’s position was not subject to a collective agreement because their position was not considered to be in the bargaining unit at the time they filed the complaint. If the Ontario Labour Relations Board subsequently ruled that the employee’s position actually was in the bargaining unit, the Ministry would not investigate or would cease investigating the complaint.

Employee bound — s. 99(3)

Section 99(3) provides that an employee to whom a collective agreement applies is bound by the decision of the union on the issue of whether or not to proceed with the employee’s grievance, or any other decision of the union with regards to the issue of the enforcement of the Act under the collective agreement, such as what remedies to seek in the grievance, or what arguments to make or evidence to adduce during an arbitration if the grievance reaches that stage. It should be read together with s. 99(4), which states that s. 99(2) applies even if the employee is not a member of the trade union.

This section should also be read together with s. 99(5), which indicates that an employee retains the right to make an unfair representation complaint against the union under s. 74 of the LRA 1995.

Membership status irrelevant — s. 99(4)

Section 99(4) provides that an employee cannot file a complaint with the Ministry or have such a complaint investigated as per s. 99(2) and is bound by the decision of the trade union as per s. 99(3) even if the employee is not a member of the trade union.

For example, employees in workplaces that have an agency shop arrangement between the union and employer do not have to be union members in order to work there (although they do pay union dues), but they will be represented by the union. Consequently they cannot file a complaint with the Ministry nor can they have the complaint investigated, and are bound by the union’s decision with respect to the enforcement of the Employment Standards Act, 2000 under the collective agreement. Other examples of employees who are not members of the trade union may include a probationary employee who is not required to pay union dues and an employee who has exercised their right under the LRA 1995 to make a charitable donation instead of paying union dues or decline to be a member of the union for religious reasons. Although such employees are not paying dues to the union and may not be a member of the union, they are covered under the collective agreement and would be represented by the trade union with regard to a violation of the collective agreement, and likewise the Employment Standards Act, 2000.

Unfair representation — s. 99(5)

Section 99(5) means that, although an employee is bound under s. 99(3) by the decision of the union with regards to the employee’s grievance (whether they are a member of the trade union as per s. 99(4)), including the decision not to proceed with it, the employee still has the right to file a complaint against the union for unfair representation under s. 74 of the LRA 1995. That section states:

Exception — s. 99(6)

Section 99(6) provides the Director of Employment Standards with the discretion to allow an employee who is otherwise caught by the prohibition under s. 99(2) to file a complaint or have such a complaint investigated under the Act. Please see Delegation of Powers for information regarding the persons to whom this power has been delegated.

Although the discretion of the Director and delegates is absolute in this area, the following are some examples of situations in which it might be appropriate to exercise the discretion in s. 99(6) to allow an employee to file or have such a complaint investigated by the Ministry under the Act:

An employee’s union refuses to proceed with the employee’s grievance

The employee makes an unfair representation complaint against the union under s. 74 of the LRA 1995. The employee wins the unfair representation case against the union, but in the meantime, the union has become defunct and is unable to proceed with the grievance.

There is a dispute between the employer and the union as to whether a certain employee is in the bargaining unit or not

The union believes that the employee is in the bargaining unit, but the employer does not. The matter is referred to the Labour Relations Board, but it will not be able to render a decision before the two-year recovery period for wages owing under the Employment Standards Act, 2000 expires. In such a case, even if the Employment Standards Program is of the preliminary view (pending the Board’s decision) that the employee is a member of the bargaining unit, it may be appropriate to exercise the discretion in s. 99(6) to allow the employee to file a claim under the Act. Otherwise, if it is later determined by the Board that the employee is not in the bargaining unit, the employee would be left without any remedy under either the Act or the collective agreement.

Section 100 — If arbitrator finds contravention

If arbitrator finds contravention — s. 100(1); Same, part XIII — s. 100(2)

Section 100(1) indicates that if the employee’s grievance reaches the arbitration stage, the arbitrator can make the same orders that an employment standards officer could make under the Employment Standards Act, 2000 with the exception of a notice of contravention. “Arbitrator” is defined in Employment Standards Act Part I, s. 1 to include a board of arbitration, or the Ontario Labour Relations Board acting as an arbitrator of a construction industry grievance under s. 133 of the Labour Relations Act, 1995, S.O. 1995, c. 1, Sched. A.

Under s. 100(1) the orders an arbitrator can make are:

1. An order for wages under s. 103;
2. An order for compensation or reinstatement under s. 104;
3. An order against a director under ss. 106 and 107;
4. A compliance order under s. 108.

Subsection 100(2) states that where the arbitrator finds that the employer has contravened Part XIII Benefit Plans, the arbitrator may make an order that the Board can make under ESA Part XXIII, s. 121. In other words, where the arbitrator determines that the employer, organization or person acting directly on behalf of an employer or organization has contravened Part XIII (i.e., differentiated on the basis of age, sex, marital status or same-sex partnership status in an employee benefit plan) the arbitrator may:

• Order the employer, organization or person to cease contravening Part XIII; or
• Compensate any person(s) who may have suffered a loss or been disadvantaged as result of the contravention.

Please see ESA Part XXII, s. 113(3) for a discussion of the Board’s order making powers where it finds a contravention of ESA Part XIII Benefit Plans.

Directors and collective agreement — s. 100(3)

Subsection 100(3) states that an order made by an arbitrator against a corporate director shall not require the director to pay any amount or to take or refrain from taking any action that the director could not be ordered to pay or to take or refrain from taking under the Employment Standards Act, 2000 without reference to the collective agreement.

The ability of an arbitrator to impose liability on a director was intended to enable the director’s liability provisions of the Employment Standards Act, 2000 to be used to assist in the enforcement of rights under the Act, not rights under the collective agreement.

Conditions respecting orders under this section — s. 100(4)

Paragraph 1 of s. 100(4) explicitly provides that the arbitrator’s order for wages or compensation may require payment to be made directly to the trade union representing the employees or directly to the employees. Because the payment is not made to the Director, the arbitrator’s order will not incorporate the 10% administrative costs surcharge, because the surcharge on orders to pay attaches only to payments made to the Director of Employment Standards in trust.

Paragraph 2 provides that the arbitrator’s order is not subject to any limitation on orders in ESA Part XXII, s. 103(4).

Paragraph 3 indicates that the arbitrator’s decision under s. 100 is not subject to review by the Ontario Labour Relations Board under ESA Part XXIII, s. 116. The remedy of a party dissatisfied with the decision of the arbitrator would be to seek judicial review. Normally, a decision of an arbitrator that interprets the Act would be subject to the strict correctness test on judicial review, on the basis that the arbitrator was construing a statute outside of their area of special expertise; see McLeod v. Egan, [1975] 1 SCR 517, 1974 CanLII 12 (SCC). However, because ESA Part XXII, s. 99(1) deems the Employment Standards Act, 2000 to form part of the collective agreement, it is at least arguable that the decision of an arbitrator interpreting the Employment Standards Act, 2000 is thus now in effect merely a construction of the collective agreement itself, rather than an interpretation of a statute outside the collective agreement, and therefore the more deferential reasonableness test should apply on judicial review. It remains, though, to be seen how the courts will rule on this issue.

Copy of decision to director — s. 100(5)

Section 101 — Arbitration and s. 4

Arbitration and s. 4 — s. 101(1)

Section 101(1) states that s. 101 of the Employment Standards Act, 2000 applies if, during an arbitration concerning enforcement of the Employment Standards Act, 2000 under ESA Part XXII, s. 100 (other than an arbitration that is conducted by the Ontario Labour Relations Board), an issue arises as to whether the employer that is the subject of the grievance and another entity are one employer under ESA Part III, s. 4. Section 101 will apply if the related employer issue under s. 4 arises during the arbitration, regardless of whether it was raised in the initial grievance that led to the arbitration.

ESA Part III, s. 4 states:

Section 4 means that two entities shall be treated as one employer for purposes of the ESA Part III, s. 4 if they meet the requirements set out in that section.

Restriction — s. 101(2)

Section 101(2) states that the arbitrator shall not make any decision regarding the issue of whether the employer against whom the grievance was filed and the other entity are one employer under ESA Part III, s. 4. Instead, that decision is to be made by the Ontario Labour Relations Board.

Reference to board — s. 101(3)

Section 101(3) requires the arbitrator to notify the Ontario Labour Relations Board that an issue under ESA Part III, s. 4 has arisen during the arbitration, unless the arbitrator determines that there was no violation of the Employment Standards Act, 2000 in any event. In other words, if, for example, the arbitrator determines that there is no money owing to the employees under the Employment Standards Act, 2000, the arbitrator would not notify the Board of the related employer issue under s. 4, since that issue would be an academic point.

One question that arises is whether this provision means that the arbitrator should first make a determination as to what amount, if any, is owing to the employees under the Employment Standards Act, 2000, before notifying the Board of the related employer issue. Since s. 101(3) does not specify that the arbitrator must notify the Board immediately, it would, if no determination as to amount had been made before the related employer issue under s. 4 first arose, seem to be within the discretion of the arbitrator either to notify the Board immediately of the related employer issue under s. 4, or to wait until it is clear that some monies are owing to the employees under the Act. In some instances it may be impossible to determine whether any monies are owing to the employee under the Act until the related employer issue under s. 4 has first been decided. For example, because ESA Part XV, s. 64(1)(b) states that severance pay is only payable in individual terminations where the employer has an annual payroll of $2.5 million or more, the issue of whether two employers, A and B, each with a payroll of $2 million, are one employer under s. 4 must be determined before a finding that severance pay is owing can be made. In this type of situation, one route the arbitrator could take would be to make a conditional finding of the amounts owing to the employees (i.e., conditional on s. 4 being applicable) and to notify the Board of the related employer issue under s. 4 either before or after such a conditional finding is made.

Content of notice — s. 101(4)

Section 101(4) states that the arbitrator’s notice to the Board shall state that a related employer issue under ESA Part III, s. 4 has arisen and shall advise the Board of any decisions concerning the other matters in dispute, e.g., whether the employees are owed money under the Employment Standards Act, 2000 . However, as stated in the discussion of s. 101(3), the arbitrator has the discretion to notify the Board of the s. 4 issue before it reaches a decision on the non-s. 4 issues.

Decision by board — s. 101(5)

Section 101(5) states that the Board shall make a determination with respect to whether the employer and the other person are related under ESA Part III, s. 4, but may not vary any decision of the arbitrator concerning the other matters in dispute. This section must be read together with ss. 101(6), (7) and (8), which set out the rules regarding the Board’s ability to issue an order against both the employer and any other person it has determined to be related to the employer.

Order — s. 101(6)

Section 101(6) provides that the where there has been a ESA Part III, s. 4 reference to the Board, the Board can make an order against the employer as well as any person that is found to be a related employer under s. 4. This section should be read in conjunction with ss. 101(7) and (8), which qualify the Board’s power to make the order.

Exception — s. 101(7)

Section 101(7) means that where an arbitrator has referred a related employer issue under ESA Part III, s. 4 to the Board, the Board’s order against any person found to be related pursuant to s. 4 to the unionized employer is limited to amounts or actions (including refraining from such actions) that could be ordered under the Employment Standards Act, 2000 in the absence of the collective agreement. The ability of an arbitrator to rely on the Act’s related employer provision via a reference to the Board was intended to enable that provision to be used to assist in the enforcement of rights under the Employment Standards Act, 2000, not rights under the collective agreement.

Application — s. 101(8)

Section 101(8) provides that ESA Part XXII, s. 100 applies with necessary modifications to an order made by the Board when an ESA Part III, s. 4 issue has been referred to the Board by an arbitrator under s. 101(3). Section 100 deals with the order making powers of arbitrators who are determining a grievance alleging a contravention of the Employment Standards Act, 2000.

Section 101.1 — Settlement by employment standards officer

Settlement by employment standards officer — s. 101.1(1)

Subsection 101.1(1) allows an employment standards officer who has been assigned to investigate an employment standards complaint to attempt to effect a settlement between an employer and an employee as the parties to the complaint. While the officer may attempt to effect a settlement, this provision does not require the employee and employer to enter into settlement discussions; the settlement process is voluntary.

Note that s. 101.1 as well as s. 112 (and unlike ss. 120 and 129) apply only to settlements between an employer and an employee and so cannot be used to settle a complaint that relates to the liability of a corporate director or a director’s order issued under s. 106 or s. 107.

However, it should be noted that for the purposes of both s. 101.1 and s. 112 settlements in respect of Part XVIII.1, that a reference to an employer includes a reference to a client of a temporary help agency and a reference to an employee includes a reference to an assignment employee or prospective assignment employee. (See s. 112(9) and s. 101.1(3) of the Employment Standards Act, 2000 and of this Manual.)

Note as well that a settlement agreement may be made by an agent acting on behalf of the employer (e.g., a director of a corporate employer) or the employee. As a result, a director of the employer could, if acting as agent for the employer, enter into a settlement under s. 101.1 of a complaint against, or corporate order issued to, an employer. In that case, any proceedings against both the employer and the corporate director (other than a prosecution) would be terminated under s. 101.1(2)(d). (And see section 7.6.1 of this Manual for a discussion of the binding effect of an agreement or authorization made by an agent of the employee.)

The other provisions of the Employment Standards Act, 2000 that allow for settlement agreements between the parties to an employment standards complaint are as follows:

• Section 112 provides the authority for an employee and an employer to enter into a settlement respecting a contravention or alleged contravention of the Act.
• Section 120 provides that the Ontario Labour Relations Board may authorize a labour relations officer to attempt to effect a settlement of matters raised in an application for review under s. 116 of the Act.
• Section 129 provides that a collector appointed by the Director of Employment Standards may effect a settlement of the amount owing under the Act if the creditor (generally the employee) agrees in writing to the settlement.

However, s. 101.1 is distinguished from the above provisions in that it provides the employment standards officer who has been assigned to investigate a complaint with the authority to attempt to effect a settlement of that complaint.

Effect of settlement — s. 101.1(2)

If the employer and employee agree to enter into a settlement under s. 101.1, the agreement becomes binding on the parties, any complaint filed with the ministry is deemed to have been withdrawn, any investigation into the complaint that may have been underway is terminated, and any proceeding other than a prosecution is terminated. (Note that such an agreement must be in writing pursuant to s. 1(3) of the Act.)

Section 101.1(2) must be read subject to subsection (4), which provides that where an employee or employer enters into a settlement as a result of fraud or coercion, the settlement is void.

It should also be noted that the binding effect of the settlement and its impact on a complaint, an order, or a proceeding is dependent on the parties to the settlement doing what they have agreed to do under it. For example, if the employer and employee have settled the matter with the agreement that a specific sum of money will be paid to the employee and such monies are not paid, this section will not apply and the matter will proceed as if there had been no settlement.

While s. 101.1 does not impose any specific restrictions with respect to when an employment standards officer may facilitate an agreement, the fact that this section provides for termination of the officer’s investigation, rather than the voiding of an officer’s orders as in s. 112, implies that any settlement by an officer under s. 101.1 must occur before the officer makes a determination. A "post-order" settlement could be made without the officer’s involvement under s. 112, and such a settlement would, in accordance with s. 112(c), void the officer’s order.

Application of s. 112 (4), (5), (7) and (9), s. 101.1(3)

This provision provides that subsections (4), (5), (7), and (9) of section 112 apply, with necessary modifications, in respect of settlements effected by employment standards officers under s. 101.1.

In this context, the application of s. 112(4) means that monies received by an employment standards officer pursuant to a settlement under s. 101.1 must be paid either directly to the employee or to the Director of Employment Standards in trust for the employee.

The application of s. 112(5) means that where monies received by an employment standards officer pursuant to a s. 101.1 settlement are paid to the Director in trust for an employee, the Director is required in turn to pay the monies to the employee.

The application of s. 112(7) means that the parties are prohibited from entering into a settlement that would allow future contraventions of the Act. For example, although an employee could agree to accept a payment equivalent to straight pay for overtime hours worked in the past, the employee would be prohibited from agreeing to work overtime in the future at straight time.

The application of s. 112(9) means that for the purposes of applying s. 101.1 with respect to Part XVIII.1 of the Act (Temporary Help Agencies), any reference to an "employer" includes a reference to a client of a temporary help agency and any reference to an "employee" includes a reference to an assignment employee or a prospective assignment employee.

Application to void settlement — s. 101.1(4)

Subsection 101.1(4) provides that a settlement may be set aside where the employee or employer can demonstrate to the Ontario Labour Relations Board that he or she or it entered into the settlement as a result of fraud or coercion. If the Board makes such a finding, the settlement is void, the employee’s complaint is deemed never to have been withdrawn, the investigation of the complaint is resumed, and any proceeding relating to the alleged contravention that was terminated is resumed.

Section 102 — Meeting may be required

Meeting may be required — s. 102(1)

This provision gives an employment standards officer the authority to require listed persons to attend a meeting where the officer is investigating a complaint against an employer or where the officer, while conducting an inspection under s. 91 or 92, comes to have reasonable grounds to believe that an employer contravened the legislation with respect to an employee.

Section 102 was amended by the Employment Protection for Foreign Nationals Act (Live-in Caregivers and Others), 2009, S.O. 2009, c. 32 (amended and renamed the Employment Protection for Foreign Nationals Act, 2009 effective November 20, 2015) with the addition of paragraphs 3 and 4. Pursuant to paragraph 3, an employment standards officer may compel parties to attend a meeting in the event information is acquired that suggests the possibility of a violation of the Employment Standards Act, 2000. In other words, it is no longer necessary for the officer to be investigating a complaint or to have reasonable grounds to believe an employer has contravened the Act or regulations in order to schedule a meeting under s. 102; information acquired by the officer that merely suggests the possibility of a contravention will be sufficient.

Pursuant to paragraph 4, an employment standards officer may also compel parties to attend a meeting where the officer wishes to determine whether an employer of a live-in employee is complying with the Employment Standards Act, 2000. In effect, this enables an officer to do a "pro-active" inspection in the case of live-in employees by requiring the parties to attend a meeting so that the officer may determine whether the employer of a "live-in" employee is complying with the Act. The officer may schedule such a meeting even if no complaint is being investigated and even if there is no information to suggest or reasonable grounds to believe that the employer (of a live-in employee) is contravening the Act or regulations.

This subsection provides that the officer must give at least 15 days written notice of the meeting.

Please note that s. 74.13 of the Act modifies s. 102 when it is applied with respect to Part XVIII.1 (Temporary Help Agencies) of the Act. That section expands the circumstances under which attendance at a meeting may be required, to include: an officer is investigating a complaint against a client of a temporary help agency or, is conducting an inspection and has reasonable grounds to believe that a client has contravened the Act or regulations with respect to an assignment employee. See section ESA Part XVIII.1, s. 74.13 for more information.

The language of s. 102 is permissive as far as the employment standards officer is concerned. The officer may require that the following persons attend the meeting:

• The employer;
• A director or employee of a corporate employer;
• The employee;
• A client of a temporary help agency (where s. 74.13 applies);
• A director or employee of a client that is a corporation (where s. 74.13 applies); and/or
• An assignment employee or prospective assignment employee of a temporary help agency (where s. 74.13 applies).

This puts s. 102 on the same footing as the other powers of the officer to investigate under s. 91 and to issue orders and notices of contravention under ss. 74.14, 74.16, 74.17, 103, 104, 106, 107, 108 and 113. The officer is not required by the legislation to hold s. 102 meetings in preference to other methods of resolving claims or conducting an inspection.

The Statutory Powers Procedure Act, R.S.O. 1990, c. S.22 does not apply to meetings convened under s. 102, although the rules of natural justice do apply (as they do to any other aspect of the investigation process).

Attendees — s. 102(2)

This section describes those persons that may be required to attend a meeting held under s. 102. The attendees listed in s. 102(2) are the same as those described in s. 64.2(1) of the former Employment Standards Act. Note that an officer of the corporation is no longer itemized, as the definition of employee in the Employment Standards Act, 2000 includes officers (who perform work for an employer for wages).

Please note that where s. 102 is applied in respect of Part XVIII.1 (Temporary Help Agencies), s. 71.13 expands the list of persons that may be required to attend a meeting. Please see ESA Part XVIII.1, s. 74.13 for more information.

Notice — s. 102(3)

This provision was amended by the Employment Standards Amendment Act (Temporary Help Agencies), 2009, S.O. 2009, c. 32, which came into force on November 6, 2009 and is similar to the previous s. 102(4) of the Act.

Section 102(3) establishes that the written notice provided by an employment standards officer requiring attendance at a decision-making meeting must set out the time and place of the meeting and must be served in accordance with s. 95 of the Act. Please see ESA Part XXI, s. 95 for a discussion of the service provisions under s. 95.

Documents — s. 102(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 s. 102(3) of the Act.

Section 102(4) allows an employment standards officer to require that a meeting attendee bring to the meeting, or make available for the meeting, any records or other documents specified in the notice of the meeting. This provision must be read in conjunction with s. 102(5) that indicates an officer may give directions on how the documents are to be made available for the meeting.

Same — s. 102(5)

This provision was introduced by the Employment Standards Amendment Act (Temporary Help Agencies), 2009. It indicates that an employment standards officer may give direction to meeting attendees on specific ways in which documents or records are to be made available for the meeting. The officer may require that documents be sent by fax, email, courier, etc. to all parties and to the officer in advance of the meeting.

For example, if an employment standards officer directs that a decision-making meeting is to take place via teleconference, he or she could require that relevant documents be sent via email to the parties in advance of the meeting for their reference during the meeting.

Compliance — s. 102(6)

This provision is substantially the same as the corresponding section (s. 64.2(5)) of the former Employment Standards Act.

Section 102(6) requires a person who receives a notice of meeting to comply with the notice. This includes attending the meeting at the specified time and place and bringing or making available for the meeting any records or other documents specified in the notice, in accordance with any direction from the officer with respect to how the records or documents are to be made available.

Use of technology — s. 102(7)

This provision was introduced by the Employment Standards Amendment Act (Temporary Help Agencies), 2009 which came into force on November 6, 2009. It allows for the use of technology to facilitate s. 102 meetings. An employment standards officer may direct a meeting to be held using technology that allows attendees to participate in the meeting concurrently. This may include, but is not limited to, holding the meeting via teleconference or videoconference.

Same — s. 102(8)

This provision was introduced by the Employment Standards Amendment Act (Temporary Help Agencies), 2009, which came into force on November 6, 2009. When an employment standards officer directs that a meeting be held using a technology (such as a teleconference or videoconference), he or she must include in the written notice of the meeting any information, in addition to the time and place at which the person is to attend, that he or she considers appropriate.

For example, if a decision-making meeting is to be held via videoconference, the employment standards officer may consider it appropriate to provide information about the type of technology that will be used, how the person will be set-up with the technology, any call-in numbers or codes that may be necessary, etc.

Same — s. 102(9)

This provision was introduced by the Employment Standards Amendment Act (Temporary Help Agencies), 2009 which came into force on November 6, 2009. Where an employment standards officer directs that a meeting be held using technology, such as teleconferencing or videoconferencing, and the person participates in the meeting using that technology, the person will have attended the meeting for the purposes of s. 102.

Determination if person fails to attend, etc. — s. 102(10)

Subsection 102(10) was added by the Open for Business Act, 2010, S.O. 2010, c. 16, effective November 29, 2010. It provides that where a person who has been served with a notice under s. 102 requiring him or her to attend a meeting or to attend a meeting and bring or make available certain documents does not attend the meeting or does not bring or make available the documents, the employment standards officer can make a determination about the employer’s compliance with the ESA without entertaining any further evidence or submissions from that person.

If it is the employer who failed to comply with the notice, the officer may make a determination based on any evidence or submissions provided by or on behalf of the employer before the meeting, any evidence or submissions provided by or on behalf of the employee before or during the meeting, and any other factors the officer considers relevant.

If it is the employee who failed to comply with the notice, the officer may make a determination based on any evidence or submissions provided by or on behalf of the employee before the meeting, any evidence or submissions provided by or on behalf of the employer before or during the meeting, and any other factors the officer considers relevant.

Note that section 74.13 of the Act modifies the application of s. 102 when it is applied in respect to Part XVIII.1 of the Act (Temporary Help Agencies). See ESA Part XVIII.1, s. 74.13 for more information.

Employer includes representative — s. 102(11)

Subsection 102(11) was added by the Open for Business Act, 2010, effective November 29, 2010. This provision provides that where the employer is a corporation, the reference to an employer in s. 102(10) includes an employee or a director of the corporation who was served with a notice under s. 102 requiring him or her to attend a meeting or to bring or make certain documents available to the employment standards officer.

In other words, a director or an employee of a corporation who is served with a notice under s. 102 requiring attendance at a meeting or requiring the provision of certain documents must abide by the notice. If he or she fails to comply with the notice, an employment standards officer may make a determination as to whether the employer corporation has contravened or is contravening the Act in accordance with s. 102(10).

Section 102.1 — Time for response

Time for response — s. 102.1(1)

Section 102.1 is a new section added by the Open for Business Act, 2010, S.O. 2010, c. 16, effective November 29, 2010. This provision gives an employment standards officer authority to issue a notice requiring an employee or employer to provide evidence or submissions within a time period specified in the notice.

The circumstances, in which such a notice can be issued are:

• Where an officer is investigating a complaint against an employer;
• Where an officer conducting an inspection comes to have reasonable grounds to believe that an employer contravened the legislation with respect to an employee;
• Where an officer receives information suggesting that a contravention may have occurred; or
• Where, in the case of an employee who resides in his or her employer’s residence, an officer wishes to determine whether the employer is in compliance.

Note that s. 102.1 applies with certain modifications in the context of temporary help agencies and their assignment employees. See ESA Part XVIII.1, s. 74.13 for more information.

Service of notice — s. 102.1(2)

This provision requires that the notice to provide evidence or submissions be served on the employer or employee, as the case may be, in accordance with s. 95 of the Employment Standards Act, 2000. Please see ESA Part XXI, s. 95 for a discussion of the service provisions under s. 95.

Determination if person fails to respond — s. 102.1(3)

Section 102.1(3) provides that where an employment standards officer gives notice to provide evidence or submissions within a specified time period and a party fails to comply with the notice, the officer may make a decision on the basis of:

• Any evidence or submissions provided by that party before the notice was served;
• Any evidence or submissions provided by the other party before or in response to and within the time specified in the notice; and
• Any other factors the officers considers relevant.

In other words, if one of the parties fails to comply with the notice, the officer may make his or her determination without entertaining any further evidence or submissions from that party.

Section 103 — Order to pay wages

Order to pay wages — s. 103(1)

Sections 103(1) to (10) deal exclusively with orders for wages under the Employment Standards Act, 2000.

Section 103(1)(a) states that where the officer finds wages are owing, they may arrange for the employer to pay the employee(s) directly, without an order being issued.

Section 103(1)(a.1) states that where the officer finds wages owing, the officer may issue an order requiring the employer to pay wages to the employee directly. Note that an order to pay wages issued under clause (a.1) does not include administrative costs.

Section 103(1)(b) states that where the officer finds wages are owing, the officer may issue an order to the employer to pay the wages owing to the employee to the Director of Employment Standards in trust. Note that an order to pay wages issued under clause (b) will include administrative costs. See s.103(2) below.

Administrative costs — s. 103(2)

Section 103(2) provides that the order issued under s. 103(1)(b) shall, in addition, contain an amount for administrative costs equal to 10 per cent of the amount of the wages, or $100, whichever is greater. Thus, for example, if the gross amount of the wages owing (before deductions for income tax, Employment Insurance and Canada Pension Plan) is $600, the administrative costs fee added to the order would be $100.

Note that there are similar provisions regarding administrative costs associated with orders issued under ss. 74.14, 74.16, 74.17 and 104.

The administrative costs are not intended to be a penalty and the Program does not use them as such.

If more than one employee — s. 103(3)

This provision empowers an officer to order wages on behalf of other employees who are entitled under the Act besides the claimant. See Clevelands House Limited v. Hay et al. (April 30, 1981), ESC 985 (Howe), Unique Media Incorporate v. Castello (September 8, 1988), ESC 2372 (Haefling), and Marcello Tranatino Manufacturing Inc. v. Scarlett (October 21, 1988), ESC 2404 (Haefling).

Transitional provisions

Subsection 103(4) was amended by the Stronger Workplaces for a Stronger Economy Act, 2014 effective February 20, 2015. This section imposed a cap of $10,000 on the amount of wages an employment standards officer could order for a single employee with respect to wages that came due prior to February 20, 2015. Subsection 103(4.1), which was also added to s.103 by the Stronger Workplaces for a Stronger Economy Act, 2014 effective February 20, 2015, eliminated the $10,000 cap with respect to orders for unpaid wages that come due on or after that date. Subsections 103(4) and 103(4.1) were transitional provisions and both were repealed on February 20, 2017.

Although these subsections are now repealed, it is Program policy that the $10,000 cap on orders to pay wages continues to apply to wages that became due before February 20, 2015, even if any associated orders are issued after February 20, 2017. This is to preserve the vested legal rights of the parties at the time the contravention occurred. This is relevant in situations where a period of time lapses between the time a claim is filed and the time a claim is investigated.

Maximum amount — s. 103(4) (Repealed)

Note that s. 103(4) was a transitional provision that was repealed on February 20, 2017 in accordance with ss. 7(2) and 10(5) of Schedule 2 to the Stronger Workplaces for a Stronger Economy Act, 2014.

Prior to its repeal, this section put a cap of $10,000 on the amount of wages an employment standards officer could order for a single employee with respect to wages that came due prior to February 20, 2015. However, it is Program policy that the $10,000 cap imposed by s. 103(4) continues to apply to wages that became due before February 20, 2015, even if any associated orders are issued after February 20, 2017.

Note that there is no cap on orders for compensation issued under ss. 74.16, 74.17 or 104, on orders for the recovery of fees under s. 74.14 or on orders against directors under s. 106 and s. 107.

Note that the cap in s. 103(4) applied to the amount of wages that came due prior to February 20, 2015 and not to the amount of the order to pay wages itself. Thus, an order to pay wages for a single employee could be for an amount greater than $10,000. That is, the order could be made out up to a maximum of $10,000 for the gross amount of the assessment, but would also include $1,000 for the 10% administrative fee, for a total of $11,000. In addition, an order could include any amount of wages that come due on or after February 20, 2015. For example, if an employee was owed $12,000 in respect of wages that came due prior to February 20, 2015 but is also owed wages (e.g., $5000) that came due on or after February 20, 2015, the order could be issued in the amount of $15,000 plus $1,500 for the 10% administrative fee as the $10,000 cap does not apply in respect of any wages that came due on or after February 20, 2015.

Questions may arise as to whether an employee who is owed more than $10,000 in wages (e.g., $15,000) that came due prior to February 20, 2015 could have filed a claim with the Ministry for $10,000, have an order issued for that amount and then filed another claim for the excess amount and had a second order issued for $5,000. The answer is no. Such a procedure would have been contrary to the intent of s. 103(4). However, if the employee was owed $10,000 in wages that came due prior to February 20, 2015, filed a claim for that amount, an order was issued, and subsequently a new and separate amount of $5,000 in wages became owing to the employee (again pre-February 20, 2015), it would not be contrary to the intent of s. 103(4) for a second order to be issued under s. 103(1) for the new amount owing.

With respect to wages that came due prior to February 20, 2015, the question may arise as to whether the $10,000 cap applied to limit recovery under the Act even where there was no order issued by an employment standards officer. This issue was considered by the Divisional Court in Ontario (Director of Employment Standards) v. Brown, [2004] Ontario Labour Relations Board Rep. 467 in an appeal from a decision of the Ontario Labour Relations Board in Brown v. North York Chevrolet Oldsmobile Ltd., 2003 CanLII 19379 (ON LRB). In that case, the employee was terminated without notice by the employer and sought termination pay in lieu of notice, severance pay and vacation pay totalling $37,277.02. The officer advised the employer that an order under the Act would be limited to $10,000 and the employer agreed to pay that amount directly to the employee under s. 103(1)(a).

The employee then filed an appeal to the Board seeking the balance of the monies that had been assessed as owing. The Board found that the arrangement to pay the $10,000 directly to the employee was not a true agreement pursuant to s. 103(1)(a) because the employer had not paid the full amount assessed as owing by the employment standards officer. The Board also found that as no order had been issued under s. 103(1)(b) that the employee was entitled to view the circumstances as a refusal to issue an order. He could therefore appeal the refusal and ask the Board to issue an order with respect to his unpaid entitlements. As the Board also concluded that there was no s. 112 settlement in this case, it concluded that it was empowered to issue an Order to Pay in the amount of $10,000, the maximum amount allowed under the Act at the time.

Same — s. 103(4.1) (Repealed)

Note that s. 103(4.1) was a transitional provision that was repealed on February 20, 2017 in accordance with ss. 7(2) and 10(5) of Schedule 2 to the Stronger Workplaces for a Stronger Economy Act, 2014.

This provision was added to the Act by the Stronger Workplaces for a Stronger Economy Act, 2014, effective February 20, 2015. It eliminated the $10,000 cap with respect to orders for unpaid wages that come due on or after this provision came into force.

Contents of order — s. 103(5)

Section 103(5) is the source of the requirement for the various inclusions to an order to pay wages, such as the covering letter, Officer’s Narrative and Worksheet, which must set out enough information that the employer will know the amount to be paid and the nature of the violation of the Act that gives rise to the entitlement ordered to be paid. The language of the section is specific: the order to pay must contain or have attached to it the information required. The fact that the employer had knowledge previously of the nature of the violation and the amount owing does not relieve the officer of the onus of setting out this information as part of the order to pay wages.

Service of order — s. 103(6)

The provision requires that an order to pay wages be served on the employer in accordance with ESA Part XXI, s. 95.

Notice to employee — s. 103(7)

Section 103(7) provides that an employee who is the subject of an order to pay (whether or not they were a complainant) is entitled to notice that the order was issued. Such notice is to be served in accordance with ESA Part XXI, s. 95.

This provision should be read together with s. 116(2), which establishes a right of review for such employees, and s. 116(4), which states that the time period for applying for such a review is 30 days after the date on which the letter advising of the order is served. See ESA Part XXIII, s. 116 for a further discussion.

Compliance — s. 103(8)

This provision states that an employer against whom an order to pay is issued must comply with the terms of the order. If the employer wishes to have the order reviewed, the procedure for filing for a review of the order is set out in ESA Part XXIII, s. 116. Section 116 is incorporated by reference into the terms of an order to pay wages; therefore filing for a review of the order is considered compliance with the terms of the order. Paying the full amount of the order or filing for review are the employer’s only options with respect to complying with the terms of the order.

Effect of order — s. 103(9); Same — s. 103(10)

Section 103(9) states that if an employer has not applied for a review of an order issued under s. 103 within the time period set out in s. 116, the order becomes final and binding on the employer. Section 103(10) clarifies that if an employer failed to apply for a review of an order for wages, the order becomes final and binding against that employer, even if, for example, a director of that employer obtained a review of an order issued against the director with respect to the same unpaid wages. See ESA Part XXIII, s. 116 for a discussion of the time periods for applying for review.

Likewise, even though a director of the employer reviewed a director’s order issued under ss. 106 or 107 and it was held that the employee was not owed monies under the Act, the employer could not rely on that decision in resisting collection efforts with respect to the order issued against it under s. 103, because the employer neither paid nor appealed the s. 103 order.

Similarly, if, for example, employer A fails to pay or apply to review the order issued against it, the order becomes final and binding against it even though company B, allegedly related to A under s. 4 of the Act, applies for a review of a separate order against B. If the result of the hearing concerning B is that B is not liable because A did not owe the employee any wages, A could not rely on that decision in resisting collection efforts against it, since A did not apply to review the order against it.

Section 104 — Orders for compensation or reinstatement

Orders for compensation or reinstatement — s. 104(1); Order to hire — s. 104(2)

This provision creates a single order making power for most of the provisions in the Employment Standards Act, 2000 for which the remedy for a contravention is an order for compensation or reinstatement. These are Part XIV Leaves of Absence, Part XVI Lie Detector Tests, Part XVII Retail Business Establishments and Part XVIII Reprisals. Note that the Part XVIII.1 Temporary Help Agencies provisions also provide for compensation orders issued under s. 74.16 and s. 74.17 for certain contraventions under that part.

Most orders issued under s. 104 are issued for a contravention of ESA Part XVIII, s. 74(1) which states:

Section 104(1) was amended by the Employment Standards Amendment Act (Temporary Help Agencies), 2009, S.O. 2009, c. 9, effective November 6, 2009 to allow an order to be issued against any person (rather than just an employer) who contravenes a provision in one of the listed Parts of the Employment Standards Act, 2000 with respect to an employee. Where a contravention can be committed by a person other than an employer, such as under Part XVI Lie Detectors and Part XVIII Reprisal, an order issued under s. 104 can be issued against the person who violates the provision.

Employees seeking an order for compensation and/or reinstatement are subject to the two-year limitation period for filing a complaint established under ESA Part XXII, s. 96(3). That section provides that a complaint filed more than two years after the contravention has occurred will be deemed not to have been filed. Damages awards made under s. 104 are not subject to the two year limitation on recovery of wages imposed by ESA Part XXII, s. 111. Section 111 states that an employee cannot recover money that came due more than two years preceding the date the complaint was filed. Because the damages awarded in s. 104 orders do not come due until the officer issues the order, s. 111 does not restrict recovery of damages.

However, if some part of the s. 104 order includes an assessment for wages that had come due under the Act, e.g., earned wages, overtime pay, vacation pay, public holiday pay, termination pay or severance pay, that amount would be subject to the limitations on recovery set out in s. 111.

Lastly, s. 104(2) clarifies that an order for compensation and/or hiring (as opposed to reinstatement) may be issued against an employer, as defined in ESA Part XVI, s. 68, with respect to persons who are not hired because they have refused to take a lie detector test, including applicants for the position of a police officer. The section is unique in that it clearly establishes a remedy that includes an order to hire for persons who are not employees under the Employment Standards Act, 2000.

Terms of orders — s. 104(3)

Where an order is issued for compensation under s. 104, s. 104(3) provides that the order must also require the person to pay the amount of the compensation to either the Director in trust pursuant to s.104(3)(a) or to the employee pursuant to s.104(3)(b). If the terms of the order require the person to pay the amount of the compensation to the Director in trust, the person will also be required to pay an amount for administration costs equal to the greater of 10 per cent of the compensation or $100 to the amount of a compensation order issued under this section to the Director in trust. Note that the required terms in s. 104(3)(b) do not include administrative costs.

How orders apply — s. 104(4)

Subsection 104(4) provides that the following subsections of ESA Part XXII, s. 103 regarding orders to pay wages also apply, with necessary modifications, to orders for compensation:

• Section 103(3): a single order may be issued with respect to compensation owing to more than one employee.
• Section 103(5): the order shall contain or be accompanied by information setting out the nature of the amount ordered to be paid.
• Section 103(6): provides for service of the order on the employer.
• Section 103(7): provides for service of a letter on employees affected by the order.
• Section 103(8): requires the employer against whom an order is issued to comply with its terms.
• Section 103(9): provides that where the employer fails to apply for a review of the order within the time period for applying for such a review, the order becomes final and binding on the employer.

Section 105 — Employee cannot be found

Employee cannot be found — s. 105(1); Settlements — s. 105(2)

Under s. 105(1), if the officer and employer have arranged for the employer to pay monies owing directly to the employee(s)or the officer has issued an order under ESA Part XXII, s. 103(1)(a.1), but the employer is unable to find the employee(s) after having made a reasonable effort to do so, the employer must pay the amount of the wages owing to the employee(s) to the Director of Employment Standards in trust.

Similarly, under s. 105(2), if an officer receives money on behalf of an employee in a settlement under ESA Part XXII, s. 112 and the employee cannot be located, the money shall be paid to the Director in trust. A trust is imposed upon the Director in the name of the Ministry of Labour to preserve the employee’s right to the funds collected.

See Delegation of Powers for information regarding to whom the Director has delegated the non-discretionary power to receive monies into trust under ss. 105(1) and 105(2).

When money vests in crown — s. 105(3)

Section 105(3) states that where there has been a payment into trust on behalf of an employee and the employee cannot be located, the funds vest in the crown. These funds effectively become part of the government’s general revenues, and since there is no interest payable on such funds, the section specifically states that the funds referred to do not earn interest.

The language of this section is permissive; that is the Director is given the discretion to pay out the funds collected to another person in the stead of the employee or to the employee themselves if they are subsequently located. The Director may do this; there is no requirement in the section that the Director do so.

Section 106 — Order against director, part XX

Order against director — Part XX, s. 106(1)

Section 106(1) was amended by the Employment Standards Amendment Act (Temporary Help Agencies), 2009, S.O. 2009, c. 9, which came into force on November 6, 2009 to make reference to the service provisions in s. 95 as amended by that Act.

Section 106(1) indicates that if an employment standards officer issues an order to pay to an employer for wages under s. 103 of the Employment Standards Act, 2000, the officer may also issue an order to pay wages against some or all of the directors of the employer, subject of course to the limits on directors' liability in s. 81(7). Note that directors are not liable for compensation ordered under s. 104. See ESA Part I, s. 1 for a discussion of the definition of wages and also see ESA Part XX (Liability of Directors) for further discussion of directors' liability.

Section 106(1) also indicates that if the officer decides to issue an order against some or all of the directors, the officer should attach to the director’s order a copy of the order to pay that was issued against the employer; both the director’s order and the attached employer order to pay are to be served together on the director in accordance with s. 95. See ESA Part XXI, s. 95 for a discussion of service under s. 95.

The question arises as to whether the order to pay against the director should be issued at the same time as the order against the company, or whether it should be issued some time later. See the Administration Manual for Employment Standards for guidelines with respect to orders against directors.

Effect of order — s. 106(2)

Section 106(2) indicates that if a director does not comply with the order to pay against him or her, and does not apply to have it reviewed, then the order against that director becomes final and binding against him or her, even though a review hearing is held to determine the liability of that person’s co-directors, or the liability of the employer.

For example, if director A does not apply to have the order to pay against him or her reviewed and does not comply with it, then the employment standards officer may attempt to collect the amount of the order from that director, (e.g., through third party demands under s. 125 or certificates under s. 126), even though that person’s co-directors, B, and C, or the employer, have applied to have the order reviewed. This applies even in cases where B and C are disputing the order against them on the grounds that the employees are not owed wages or vacation pay by the employer. If the result of the hearing concerning the liability of B and C is that they are found not liable on the grounds that the employer did not owe the employees wages or vacation pay, then A may not raise this as a defence in connection with the order against A, since A did not apply to review the order or comply with it voluntarily. Furthermore, where amounts owing under the order against A have been paid through collection efforts under ss. 125 or 126, or otherwise, A could not demand repayment of those monies on the grounds that the Ontario Labour Relations Board had subsequently found, after the hearing concerning B and C, that the employer did not owe the employees wages or vacation pay.

Orders, insolvent employer — s. 106(3)

Section 106(3) was amended by the Employment Standards Amendment Act (Temporary Help Agencies), 2009 effective November 6, 2009 to make reference to the service provisions in s. 95 as amended by that Act.

If there is a trustee in bankruptcy or a court-appointed receiver, the employment standards officer, because of contempt of court principles, is precluded from issuing an order to pay to the employer, but would instead file a proof of claim on behalf of the employees with the receiver or the trustee, as the case may be. If this is done, and the claim is not paid and the 30-day period to apply for a review has expired, the officer may at that point issue an order to pay against some or all of the directors for the wages and vacation pay that are owed to the employees by the employer. Therefore, even though s. 106(1) states that an order to pay against the employer is required before an order can be issued against the directors, an order against the directors is permitted in situations where a proof of claim is issued instead of an order against the employer, because there is a bankruptcy or court-appointed receivership.

An order to pay wages issued against a director under this section must be served in accordance with s. 95 of the Act. See ESA Part XXI, s. 95 for a discussion of the service provisions.

The Ontario Court of Appeal in Rizzo & Rizzo Shoes Ltd. (Re), 1995 CanLII 1225 (ON CA) held that the Ministry of Labour does have the authority to file proofs of claim on behalf of the employees, without the express written authorization of each individual employee. This decision supports Program policy on that particular point.

Procedure — s. 106(4)

Section 106(4) indicates that just like an order against a director of a solvent employer, an order issued against a director of an insolvent employer will become final and binding on the director if it is not complied with or if no application for review is made, even though a review hearing is held to determine another person’s liability, e.g., a review hearing of a co-director’s liability, under the Act.

Maximum liability — s. 106(5)

Section 106(5) confirms that the maximum liability of a director with respect to an order issued under s. 106 is as set out in s. 81 of the Act. Under s. 81(7), the maximum liability for directors with respect to wages is a joint and several liability to the employees of the corporation for all debts not exceeding six month’s wages (per employee) that became due while the person was a director and 12 months accrued vacation pay (per employee) that accrued while the person was a director. Note that there is no liability for compensation as ordered under s. 104 because such monies are not considered wages under the Act. See ESA Part I, s. 1 for a discussion of the definition of wages.

Under s. 81(8) directors are also liable for interest on the outstanding wages for which they are liable. For further discussion of directors' liability, see ESA Part XX, s. 81.

Interest is to be calculated in a manner to be determined by the Director under ESA Part XXI, s. 88(5).

Payment to director — s. 106(6)

This section states that the Director of Employment Standards has the power to require a director who is served with an order under s. 106 to pay the wages and vacation pay covered by the order to the Director of Employment Standards in trust, instead of to the employees directly. For information regarding the persons to whom this power has been delegated, please see Delegation of Powers.

The main purpose of this discretion is to facilitate the refunding mechanism where, due to joint and several liability, more than the amount of the order is received from the directors. For example, if A, B and C are jointly and severally liable for $10,000 in wages and vacation pay, the officer can issue an order to each of A, B and C for $10,000. If A pays $10,000, B pays $5,000 and C pays $5,000, then $10,000 would have to be refunded to the directors. If the monies are paid to the Director of Employment Standards in trust, the refunding is easier than if the monies had been paid directly to the employees.

Section 107 — Further order, part XX

Further order, part XX — s. 107(1)

Section 107(1) was amended by the Employment Standards Amendment Act (Temporary Help Agencies), 2009, S.O. 2009, c. 9, which came into force on November 6, 2009 to make reference to the service provisions in s. 95 as amended by that Act.

Section 107(1) sets out three situations in which an employment standards officer may make an order against directors who did not receive orders pursuant to s. 106:

Whereas s. 106(1) provides that the employment standards officer who issued a s. 103 order may issue a director’s order, s. 107(1)(a) enables an employment standards officer who did not issue the order under s. 103 to issue a director’s order to pay. This is because it provides that an employment standards officer may issue if an employment standards officer has made a s. 103 order against the employer that is unpaid and has not been appealed.

If an employment standards officer has issued s. 106 orders against some of the directors of a corporate employer and the directors (or the employer acting on their behalf) have not paid or appealed such orders, an employment standards officer may issue an order against any other directors under s. 107. Again, because of the reference to an employment standards officer, s. 107(1)(b) enables an employment standards officer who did not issue the s. 106 order(s) to subsequently issue a director’s order.

If on appeal under s. 116, the Board issues, amends or affirms an order to pay against a corporate employer or director, an employment standards officer may make an order against the directors under s. 107. There is no requirement that the employment standards officer issuing a director’s order to pay under this section be the same officer that made the determination that the corporate employer or director appealed to the Board.

Note that in a hearing involving an employer’s application for review, the monies owing pursuant to the order to pay will have been paid by the employer to the Director of Employment Standards in trust. Consequently, an order to pay would not be issued against the directors under s. 107 unless there were insufficient funds in trust to satisfy the amount of the order because the Board raised the amount of the order, or because, when the application for review was filed, the Director accepted an irrevocable letter of credit for less than the amount ordered.

In a hearing involving a director’s application for review of an order issued under s. 106, the officer could issue an order against additional directors under s. 107 if the Board affirmed or amended the order issued under s. 106.

Any orders issued under this section must be serviced in accordance with ESA Part XXI, s. 95.

Payment to director — s. 107(2)

This provision is identical to s. 106(6).

This section states that the Director of Employment Standards has the power to require a director who is served with an order under s. 107, to pay the wages and vacation pay covered by the order, to the Director of Employment Standards in trust, instead of to the employees directly. For information regarding the persons to whom this power has been delegated, please see Delegation of Powers.

The main purpose of this power is to facilitate the refunding mechanism where, due to joint and several liability, more than the amount of the order is received from the directors. For example, if A, B and C are jointly and severally liable for $10,000 in wages and vacation pay, the officer can issue an order to each of A, B and C for $10,000. If A pays $10,000, B pays $5,000 and C pays $5,000, then $10,000 would have to be refunded to the directors. If the monies are paid to the Director of Employment Standards in trust, the refunding is easier than if the monies had been paid directly to the employees.

Section 108 — Compliance order

Compliance order — s. 108(1)

Section 108, which was introduced by the Employment Standards Act, 2000, created a new enforcement tool for employment standards officers. Where the officer finds a contravention of the Employment Standards Act, 2000 or regulations, the officer may issue an order requiring the person who has contravened the Employment Standards Act, 2000 to, by a date specified in the order:

1. Cease contravening the provision; and
2. Take or refrain from taking action in order to comply with the provision.

Because s. 108 is applicable to any violation under the Employment Standards Act, 2000 it allows an officer to issue a compliance order for violations that could not be the subject of an order under ESA Part XVIII.1, s. 74.14, 74.16, 74.17, or ESA Part XXII, s. 103 or 104. Compliance orders can therefore be issued for non-monetary violations, although they are not limited to that purpose. For example, there would be a non-monetary violation if the employer contravened s. 20 by not providing employees with a 30-minute meal break or contravened s. 12 by not providing employees with a statement of wages.

Note that the officer may issue a compliance order to any person that has contravened the Employment Standards Act, 2000. The word "person" indicates that the order may be issued against persons other than an employer. For example, a compliance order could be issued against a person such as an owner or manager of a building who fails to provide information requested by a new provider of services as per ESA Part XIX, s. 77(2). See the definition of person in ESA Part I, s. 1.

Payment may not be required — s. 108(2)

This provision was amended by the Employment Standards Amendment Act (Temporary Help Agencies), 2009, S.O. 2009, c. 9, effective November 6, 2009 to include a reference to orders to recover fees under ESA Part XVIII.1, s. 74.14.

Section 108(2) states that a compliance order itself shall not require the payment of wages, fees or compensation. The compliance order will therefore not be used to require payment of unpaid wages, fees or compensation. It is limited to directing a person who has or is contravening the Employment Standards Act, 2000 to cease doing so or to take action to bring itself into compliance. Note that this provision does not restrict the officer’s ability to issue a notice of contravention under ESA Part XXII, s. 113 (which carries with it a financial penalty) with respect to the same violation that triggered the issuance of the compliance order. See the discussion in ESA Part XXII, s. 113(7).

Other means not a bar — s. 108(3)

This subsection was amended by the Employment Standards Amendment Act (Temporary Help Agencies), 2009 to reference orders under ESA Part XVIII.1.

Although s. 108(2) precludes the compliance order from requiring payment of wages, fees or compensation, s. 108(3) specifically allows the officer to issue a separate order to recover fees under ESA Part XVIII.1, s. 74.14 order for compensation against a temporary help agency under ESA Part XVIII.1, s. 74.16, compensation/reinstatement order relating to a client reprisal under ESA Part XVIII.1, s. 74.17, order to pay wages under ESA Part XXII, s. 103, a compensation/reinstatement order under ESA Part XXII, s. 104, or a director’s order under ESA Part XXII, s. 106 or 107 with respect to the same contravention for which they issue the compliance order. It follows therefore that the issuance of a compliance order is not limited to situations involving non-monetary contraventions. For example, if an employer is found to have violated ESA Part VIII, s. 22(1), which requires the payment of overtime pay for hours worked in excess of 44 per week, the employment standards officer may issue an order under ESA Part XXII, s. 103 for the overtime pay owing to the employees as well as a compliance order under s. 108 that requires the employer to comply with s. 22(1).

Application of s. 103(6) to (9) — s. 108(4)

This subsection was amended by the Employment Standards Amendment Act (Temporary Help Agencies), 2009, which came into force November 6, 2009, to include references to clients and assignment employees and prospective assignment employees.

Section 108(4) provides that the rules as set out under ESA Part XXII, s. 103 regarding service, notice to employees, compliance, and the binding effect of an order for which no timely application for review is made apply to compliance orders issued under s. 108.

As a result, a compliance order must be served in accordance with ESA Part XXI, s. 95. Additionally, when an employment standards officer issues a compliance order with respect to an employee, he or she must advise that person of the issuance of the order through a letter served in accordance with s. 95.

The person against whom the compliance order is issued shall comply with it according to its terms and if the person against whom the order is issued does not apply to the Board for a review within the time set out in ESA Part XXIII, s. 116, the order becomes final and binding.

See the discussion at ESA Part XXII, s. 103(6) to (9). When cross-referencing these provisions, any modifications necessary for s. 103(6) to (9) to make sense in the context of a compliance order will apply. When an officer issues a compliance order with respect to Part XVIII.1, such modifications include reading the term employer to also mean client of a temporary help agency and reading the term employee to also mean an assignment employee or prospective assignment employee.

Injunction proceeding — s . 108(5); Same — s . 108(6)

Section 108(5) enables the Director to apply to the court, without notice to the person to whom a compliance order was issued, for an order of the court requiring that person to cease contravening the terms of the compliance order. Such a court order is referred to as an injunction.

In effect, this provision provides the Director with a mechanism to obtain a court order requiring compliance with the Employment Standards Act, 2000, without the necessity of initiating a prosecution. Section 108(6) makes it clear that the injunction order under s. 108(5) is available in addition to any other remedy or penalty for the contravention of the order. In other words, it would not preclude a prosecution for a contravention of the order or imposition of the penalties and remedies under ESA Part XXV, s. 132 to 137, inclusive.

See Delegation of Powers for information on how this power has been delegated.

Section 109 — Money paid when no review

Money paid when no review — s. 109(1)

Section 109(1) was amended by the Employment Standards Amendment Act (Temporary Help Agencies), 2009, S.O. 2009, c 9, effective November 6, 2009 to broaden its application to monies paid pursuant to orders issued under Part XVIII.1 of the Employment Standards Act, 2000.

Section 109(1) indicates that where there has been payment of wages, fees or compensation that were the subject of an order, and the person against whom the order was issued has not applied for review under s. 116, the money paid into trust will be paid out to the person named in the order. The Trust Funds Unit of the Employment Practices Branch (acting for the Director) will pay out after waiting the 30 days (or longer, if there has been an extension granted in the case) for any application for review by the employer or, in the case of an order issued under ss. 106 or 107, the director.

Note that this section makes no provision for the payment of any interest that may have accrued on the monies paid to the Director in trust. Although s. 88(7) states that where money has been paid to the Director in trust it shall be paid out to the person entitled to receive it together with interest at the rate calculated and manner determined by the Director in ss. 88(5), s. 88(7) only applies where no provision is made elsewhere in the Act for paying out the monies held in trust.

Money distributed rateably — s. 109(2)

Section 109(2) states what happens when the amount received is less than the full amount of the order (including administrative costs).

In this situation, the Director of Employment Standards distributes the money received to each person who is the beneficiary of the order in proportion to the amount they are owed. The Director does not retain any of the money for the administrative costs unless those beneficiaries are paid in full. (This is the case even if the employer specifically submitted some of money for the purpose of paying the administrative costs portion of the order.)

Please see ESA Part I, s. 1 for a discussion of the term "person" under the Act.

No proceeding against director — s. 109(3)

This provision is substantially the same as the corresponding section (s. 72(5)) in the former Employment Standards Act. Section 109(3) simply states that the distribution of money received in compliance with this section does not leave the Director open to any civil or criminal liability. Though the word "proceeding" is not defined in the Act, it seems clear that its plain meaning is intended by this section. The protection afforded to the Director under this section would extend to the Director’s delegate acting under this section. See Delegation of Powers for information.

Section 110 — Refusal to issue order

Refusal to issue order — s. 110(1)

Section 110(1) was amended by the Employment Standards Amendment Act (Temporary Help Agencies), 2009, S.O. 2009, c 9, which came into force on November 6, 2009 to include references to refusals to issues orders under Part XVIII.1.

Section 110(1) imposes an obligation on an employment standard officer assigned to investigate a complaint to notify a complainant by letter of his or her decision not to issue any of the following orders:

• Order to recover fees (s. 74.14)
• Compensation order against a temporary help agency (s. 74.16)
• Compensation/reinstatement order relating to client reprisal (s. 74.17)
• Order to pay wages (s. 103)
• Compensation/reinstatement order (s. 104); and/or
• Compliance order (s. 108).

The letter advising the complainant of the refusal to issue an order must be served in accordance with s. 95 — see ESA Part XXI, s. 95 for more information.

Note: this section does not impose any obligation to notify a complainant of a refusal to issue a director’s order under ss. 106 or 107, as employees do not have the right to apply to review a refusal to issue an order against a director. It should also be noted that there is no obligation to notify non-complainants of the refusal to issue any of the listed orders.

The rationale for the notice and service provisions in s. 110 may be found in s. 116(4) of the Employment Standards Act, 2000. Section 110 effectively establishes the start date of the 30-day period set out in s. 116(4) within which a complainant must apply for a review of the officer’s decision not to issue an order under ss. 74.14, 74.16, 74.17, 103, 104 and 108.

Deemed refusal — s. 110(2)

This provision was amended by the Employment Standards Amendment Act (Temporary Help Agencies), 2009, which came into force on November 6, 2009 to reference a "person" rather than an "employee".

This section is similar to the corresponding section (s. 67(2)) of the former Employment Standards Act. Section 110(2) indicates that if no order is issued within two years after the complaint was filed, then the employment standards officer shall be deemed to have refused to issue an order on the day before the two-year limitation period expires. Therefore, for example, if during the two years after the person files his or her claim, the officer neither issues an order, nor refuses to issue an order, then the officer will be deemed to have refused to issue an order on the day before the two-year period expires.

One reason for this provision is so that, in the unfortunate and rare event that the Ministry has neither issued an order nor refused to do so during the two-year limitation period set out in s. 114(1)(a) of the Act, the person can still apply for a review by the Ontario Labour Relations Board under s. 116. The person would have 30 days from the day before the two-year period expires in which to apply for a review of the officer’s deemed "refusal".

Section 111 — Time limit on recovery, employee’s complaint

Time limit on recovery, employee’s complaint — s. 111(1)

Section 111(1) as amended by the Stronger Workplaces for a Stronger Economy Act, 2014, S.O. 2014, c. 10, effective February 20, 2015 provides that, if an employee has filed a complaint under the Employment Standards Act, 2000, the order for wages that became due to the employee either in respect of the contravention alleged in the complaint or any contravention discovered during the course of the investigation is limited to those wages that became due to the employee within the two-year period preceding the date the complaint was filed.

It must be noted however that s. 111(1) applies only with respect to wages that became due on or after February 20, 2015. See the discussion under Transitional Provisions below on the limitation periods for wages that became due before February 20, 2015.

In order for an employee to recover wages that came due on or after February 20, 2015 in accordance with s. 111(1), such wages must have come due in the two-year period preceding the date the claim was filed.

The following is intended to assist officers in determining when various types of wages become due under the Act:

Type of entitlement and due date

Regular wages

Come due on the regular pay day as established by employer practice. Following termination, on the later of seven days after termination or the day that would have been the employee’s next regular pay day.

Termination and severance pay

On the later of seven days after termination or the day that would have been the employee’s next regular pay day, unless the severance pay is to be paid out in instalments in accordance with ESA Part XV, s. 66. Note also that where an employee elects to retain recall rights or makes no election, termination and/or severance pay is due when the recall rights expire or are renounced. See the discussion at ESA Part XV, s. 66 and 67.

Vacation pay

Vacation pay comes due generally before the employee takes vacation, but in some cases will come due on or before the pay day for the period in which the vacation falls, which must be taken within 10 months following the vacation year or within such shorter period as established by contract. Or, the parties may agree in writing that the vacation pay will come due on each pay day as it accrues. It may also come due at such other time as agreed in writing by the parties. Finally, following termination, vacation pay comes due on the later of seven days after termination or the day that would have been the employee’s next regular pay day.

Because vacation pay can be paid in a number of ways under the Act and may therefore come due at different times, the application of s. 111 to vacation pay is quite complex.

Practical application of s. 111 to vacation pay provisions — When does vacation pay come due?

Any vacation pay will be recoverable if it came due in the two year period preceding the date the claim was filed. Note that this applies only to vacation pay that became due on or after February 20, 2015. See s. 111(3.2) for a discussion of the limitation periods for vacation pay due before February 20, 2015.

However, it is important to note that vacation pay may come due at different times in accordance with ESA Part XI, s. 36:

Vacation pay is paid in accordance with s. 36(1):

Pursuant to ESA Part XI, s. 35 and 35.1, vacation pay is due prior to the commencement of the vacation and vacation time must be taken within 10 months following the end of the period for which it was earned. In the case of the vacation pay accrued over a vacation entitlement year, the latest the vacation pay will be due before the end of the 10-month period following the completion of the vacation entitlement year (assuming that no vacation time has been taken in respect of that vacation entitlement year) would therefore be:

• Two weeks for employees whose period of employment is less than five years when the vacation entitlement year ends, or
• Three weeks for employees whose period of employment is five years or more when the vacation entitlement year ends.

In the case of vacation pay accrued over a stub period, the latest the vacation pay will be due (assuming that no vacation time has been taken in respect of that stub period) would be 10 months following the completion of the stub period less the vacation time earned over the stub period.

Vacation pay is paid in accordance with s. 36(2):

If vacation pay is paid in accordance with s. 36(2), i.e., wages are paid by direct deposit or the employee does not take vacation in complete weeks, the vacation pay is due on or before the pay day for the period in which the vacation falls. Again, the latest the vacation may be taken is within 10 months following the completion of the period for which it was earned. With respect to any completed vacation entitlement year then, the latest the vacation pay accrued in that year would be due (assuming that no vacation time has been taken in respect of that vacation entitlement year) would be the pay day for the last pay period that ended within the 10 months following the completion of the vacation entitlement year. In the case of vacation pay accrued over a stub period, the latest the vacation pay would be due (assuming that no vacation time has been taken in respect of that stub period) would be the pay day for the last pay period within the 10 months following the completion of the stub period.

Vacation pay is paid in accordance with s. 36(3):

If vacation pay is paid in accordance with s. 36(3), i.e., the employer pays vacation pay that accrues in each pay period on the pay day for that period, the vacation pay is therefore due on the pay day for each pay period, regardless of when the vacation time is taken.

Vacation pay is paid in accordance with s. 36(4):

If vacation pay is paid in accordance with s. 36(4), i.e., where the employer and employee may agree to the payment of vacation pay at any time, the vacation pay is due on the date so agreed by the parties regardless of when the vacation time is taken.

Compensation/Reinstatement

Damages owing under a compensation order only come due on the date the officer issues the order. As a result, when an officer is issuing a compensation order under ESA Part XXII, s. 104 for a violation of Part XIV Leaves of Absence, Part XVI Lie Detectors, Part XVII Retail Business Establishments or Part XVIII Reprisal, the limitation on recovery in s. 111 will not apply to the damages awarded pursuant to the order. An order for reinstatement is also not limited by s. 111 because the subject of the order in that case is not wages that come due under the Act. But see the discussion regarding the two-year limitation period on filing claims in ESA Part XXII, s. 96(3).

However, if a compensation or reinstatement order also includes an assessment for wages that were due under the Act, for example, where wages or vacation pay were earned prior to a termination contrary to the reprisal provisions in Part XVIII, those wages will be subject to the s. 111 limitations on recovery based on the date such monies came due under the Act.

Same, another employee’s complaint — s. 111(2)

In accordance with s. 111(2), if an officer is investigating a complaint filed by employee A and during the course of that investigation discovers that monies are also owing to employees B, C and D, the officer may issue an order with respect to employees B, C and D only for those wages including vacation pay that became due within the two-year period preceding the date A filed their complaint. In other words, with respect to any wages, employees A (the complainant) and B, C and D are all able to recover those wages including vacation pay that became due not more than two years prior to the date of A's complaint.

Note that this applies only to wages that became due on or after February 20, 2015. See the discussion under Transitional Provisions below on the limitation periods for wages that became due before February 20, 2015.

Same, inspection — s. 111(3)

In accordance with s. 111(3), where an officer is conducting an inspection, the limitation on recovery for all unpaid wages discovered during the inspection will be the two-year period preceding the date the inspection was commenced. In other words, with respect to any unpaid wages, the officer may issue an order for those wages if they came due within the two-year period preceding the date the inspection commenced.

Note that this applies only to wages that became due on or after February 20, 2015. See the discussion under Transitional Provisions below on the limitation periods for wages that became due before February 20, 2015.

Transitional provisions

On February 20, 2015, the Stronger Workplaces for a Stronger Economy Act introduced a number of transitional provisions that imposed a six-month limitation period on unpaid wages that became due before February 20, 2015, and a 12-month limitation period for repeated contraventions and vacation pay that became due before February 20, 2015. Sections 111(3.1) to (8) were repealed on February 20, 2017 in accordance with ss. 8(6) and 10(6) of Schedule 2 to the Stronger Workplaces for a Stronger Economy Act, 2014.

Although these sections are now repealed, it is Program policy that the limitation periods imposed by the transitional provisions continue to apply to wages, repeated contraventions and vacation pay that became due before February 20, 2015, even if any associated orders are issued after February 20, 2017. This is to preserve the vested legal rights of the parties at the time the contravention occurred. This is relevant in situations where a period of time lapses between the time a claim is filed and the time a claim is investigated.

Transition — Time limits — s. 111(3.1) (Repealed)

Note that s. 111(3.1) was a transitional provision that was repealed on February 20, 2017 in accordance with ss. 8(6) and 10(6) of Schedule 2 to the Stronger Workplaces for a Stronger Economy Act, 2014.

Prior to its repeal, s. 111(3.1) together with the repealed ss. 111(3.2), (4) and (6) and ss. 111(5), (7) and (8) operated to impose the six-month limitation period on unpaid wages or 12 month limitation for repeated contraventions and vacation pay that applied prior to February 20, 2015, the date s. 111 was amended by the Stronger Workplaces for a Stronger Economy Act, 2014. Under s. 111(3.1), the six-month limitation period on recovery of wages specifically applied only in respect of those wages that came due prior to February 20, 2015. However, it is Program policy that the six month limitation period imposed by s. 111(3.1) continues to apply to wages that became due before February 20, 2015, even if any associated orders are issued after February 20, 2017.

Note that s. 111(3.1) is also subject to the provisions that impose a 12-month recovery period for repeat contraventions and for vacation pay with respect to monies that came due prior to February 20, 2015.

An example of how s. 111(3.1) applied is as follows:

• Employee files a claim with Ministry on July 15, 2015.
• Employee is owed termination pay due on January 31, 2015.
• All of the unpaid termination pay came due on a single date (no repeat contraventions) prior to February 20, 2015 and there is no unpaid vacation pay. Consequently, the officer may issue an order only for those wages that became due during the six months prior to July 15, 2015, the date the claim was filed, In this case, the employee is able to recover the termination pay that was due on January 31, 2015.

Transition — Vacation pay — s. 111(3.2) (Repealed)

Note that s. 111(3.1) was a transitional provision that was repealed on February 20, 2017 in accordance with ss. 8(6) and 10(6) of Schedule 2 to the Stronger Workplaces for a Stronger Economy Act, 2014.

Prior to its repeal, s. 111(3.2) imposed a 12-month limitation on the recovery of unpaid vacation pay that applied prior to the amendments made by the Stronger Workplaces for a Stronger Economy Act, 2014. In accordance with the repealed s. 111(3.1) this 12-month limitation applied only with respect to vacation pay that came due prior to the February 20, 2015, the date the amendments to s. 111 made by the Stronger Workplaces for a Stronger Economy Act, 2014 came into force. However, it is Program policy that the 12 month limitation period imposed by s. 111(3.2) continues to apply to vacation pay that became due before February 20, 2015, even if any associated orders are issued after February 20, 2017.

As a result, where an employment standards officer is investigating a complaint or conducting an inspection and finds during the course of that investigation or inspection that an employer has failed to pay any vacation pay that came due prior to February 20, 2015, the officer is limited to issuing an order for such vacation pay to that which came due within the 12-month period preceding the date the complaint was filed or the inspection was commenced.

Transition — Repeated contraventions — s. 111(4) (Repealed)

Note that s. 111(4) was a transitional provision that was repealed on February 20, 2017 in accordance with ss. 8(6) and 10(6) of Schedule 2 to the Stronger Workplaces for a Stronger Economy Act, 2014.

Prior to its repeal, s. 111(4) operated to impose a 12-month limitation period on the recovery of unpaid wages where there are repeated contraventions but only with respect to unpaid wages that came due prior to February 20, 2015, the date the changes to s. 111 made by the Stronger Workplaces for a Stronger Economy Act, 2014 came into force. However, it is Program policy that the 12 month limitation period imposed by s. 111(4) continues to apply to repeated contraventions of the requirement to pay wages that became due before February 20, 2015, even if any associated orders are issued after February 20, 2017.

Subsection 111(4) therefore extended the limitation on recovery of wages (other than vacation pay) as set out in the repealed s. 111(3.1) from six months to 12 months when there has been a repeated contravention. Specifically, any unpaid wages (other than vacation pay) that came due prior to February 20, 2015, can be recovered if they became due in the 12-month period preceding the date a complaint was filed or inspection commenced and:

1. The employer has contravened the same provision of the Act or regulations more than once with respect to the employee; and
2. Each contravention is for wages that become due under the same provision of the Act or regulations or provisions of the employment contract that are the same or virtually identical; and
3. At least one of the contraventions occurred during the six-month period preceding the date the complaint was filed or inspection commenced.

For example, s. 111(4) would apply where there was a contravention of the requirement to pay overtime and such overtime pay was due more than six months prior to the date the complaint was filed or inspection commenced if there was also a contravention of that same provision on at least one occasion in the six-month period preceding the date the complaint was filed or the inspection commenced.

It is important to note that this section allows for a finding of a repeated violation only in regards to each employee. Thus, for example if the employer violates the public holiday provisions of s. 24 once with regard to employee A and then a second time with regards to employee B and a third time with regards to employee C, so that s. 24 is only violated once with regards to each employee, this is not a repeated violation of the Act with regards to any given employee and therefore s. 111(4) does not apply.

Example

The following example is an illustration of how the repealed repeated contravention provision applied where the investigation reveals multiple entitlements for more than one employee:

• Employee A files a complaint regarding overtime pay on December 1, 2014.
• During the investigation officer finds:
  • Employee A and B — overtime pay due but unpaid November 1, 2014.
  • Employee A — overtime pay due but unpaid July 15, 2014.
  • Employee A, B and C — overtime pay due but unpaid December 15, 2013.

In this case the officer could issue an order for the following:

1. The overtime pay due to employee A on November 1, 2014, July 15, 2014 and December 15, 2013.
   • A's overtime entitlements are repeat contraventions under s. 111(4), so the order may be issued for any overtime due in the 12-month period preceding the date the complaint was filed.
2. The overtime pay due to employee B on November 1, 2014 and December 15, 2013.
   • B's overtime entitlements are repeat contraventions under s. 111(4), so the order may be issued for any overtime due to B in the 12-month period preceding the date A filed their complaint.

The officer could not issue an order for the overtime pay due to employee C on December 15, 2013 because C's overtime entitlement was not a repeat contravention and would therefore have had to come due within six months of the date A filed their complaint in order to be recoverable under the Act.

Same — s. 111(5) (Repealed)

Note that s. 111(5) was a transitional provision that was repealed on February 20, 2017 in accordance with ss. 8(6) and 10(6) of Schedule 2 to the Stronger Workplaces for a Stronger Economy Act, 2014.

Prior to its repeal, its effect was to limit the application of the repeated contravention provision in s. 111(4) (also repealed) such that it applied in respect of wages that came due prior to February 20, 2015 in either of two ways:

1. A repeated contravention will only be found where the contraventions are violations only of the requirement in s. 11 to pay wages on the employee’s regular pay day (s. 11) or the prohibition in s. 13 against deductions from wages and no other provisions in the Act; or
2. A repeated contravention will be found only if the contraventions are all for a violation of the same provision in the Act in addition to being a violation of s. 11 or 13.

However, it is Program policy that the limitations imposed by s. 111(5) continue to apply to repeated contraventions of the requirement to pay wages that became due before February 20, 2015, even if any associated orders are issued after February 20, 2017.

For example, s. 111(5)(a) applied so that a repeated contravention would be found where the employer had twice made prohibited deductions from the employee’s pay at nine months and three months prior to the date the complaint was filed, because both are s. 13 contraventions but are not also contraventions of any other provision of the Act. Under s. 111(5)(b), a repeated contravention would be found where, on one occasion, the employer failed to pay overtime pay (a contravention of s. 11 and s. 22) and on a second occasion, again failed to pay overtime pay (as they are both contraventions of s. 11 and s. 22). However, a repeated contravention would not be found where the employer failed to pay overtime pay on one occasion and failed to pay minimum wage on another because while they are both s. 11 violations, they are contraventions of s. 22 and s. 23 respectively.

Transition — Complaints from different employees — s. 111(6) (Repealed)

Note that s. 111(6) was a transitional provision that was repealed on February 20, 2017 in accordance with ss. 8(6) and 10(6) of Schedule 2 to the Stronger Workplaces for a Stronger Economy Act, 2014.

Prior to its repeal, subsection 111(6) was effectively limited in its application to situations where a complaint or a subsequent complaint had been filed with respect to wages which were subject to the limitations on recovery set out in the repealed s. 111(3.1), which is in turn was subject to ss. 111(3.2) to (8) (also repealed). However, it is Program policy that s. 111(6) continues to apply to complaints from different employees regarding wages that became due before February 20, 2015, even if any associated orders are issued after February 20, 2017.

In other words, if a complaint has been filed and subsequent complaints are filed by different employees against the same employer alleging at least one of the same contraventions alleged in the first complaint and there are wages that came due prior to February 20, 2015, s. 111(6) provides that those wages will be subject to a six month recovery period, or 12 months in the case of repeated contraventions or vacation pay, preceding the date the first complaint was filed.

Section 111(6) must be read subject to s. 111(8), which limits the application of s. 111(6) to situations where the subsequent complaints are filed before the officer has made a determination with respect to that first complaint.

Example

• Employee A files a claim July 1, 2015 for unpaid overtime pay due January 15, 2015.
• On August 15, 2015, during the investigation of A's claim, Employee B files a claim for unpaid overtime pay due January 15, 2015 and July 15, 2014.

Because B's complaint was filed before the officer had issued an order or letter of refusal with respect to A's complaint, B's complaint will be treated as if it had been filed July 1, 2015. As a result, the officer could issue an order for the overtime pay due to both A and B on January 15, 2015 as well as the overtime pay that was due to B on July 15, 2014 because it was a repeated contravention under s. 111(4).

Same — s. 111(7) (Repealed)

Note that s. 111(7) was a transitional provision that was repealed on February 20, 2017 in accordance with ss. 8(6) and 10(6) of Schedule 2 to the Stronger Workplaces for a Stronger Economy Act, 2014.

This provision is similar to the repealed s. 111(5), but it defined those situations in which the contraventions in different complaints (as compared to repeated contraventions with respect to a particular employee) would be considered to have arisen under the same provision of the Act (or identical or virtually identical provisions of the employees' contracts of employment) for the purpose of treating all the complaints as if they had been filed on the date the first complaint was filed as per s. 111(6) (also repealed). However, it is Program policy that s. 111(7) continues to apply to wages that became due before February 20, 2015, even if any associated orders are issued after February 20, 2017.

Like the repealed s. 111(5), this provision effectively applied only with respect to wages that came due prior to February 20, 2015.

The effect of s. 111(7) was to limit the application of s. 111(6) such that it applies in respect of wages that came due prior to February 20, 2015 in either of two ways:

1. If the contraventions are violations only of the requirement to pay wages on the employee’s regular pay day (s. 11) or the prohibition against deductions from wages (s. 13) and no other provisions in the Act, or
2. If the contraventions are also a violation of the same provision in the Act, in addition to being a s. 11 or 13 violation, or of provisions of the employees' employment contracts that are identical or virtually identical.

For example, if employee A filed a complaint claiming that they had not been paid regular wages and employee B subsequently filed a complaint also alleging non-payment of wages, employee B's complaint would be treated as if it had been filed on the date employee A's complaint was filed. However, the contraventions would not be considered the same if employee A's complaint alleged that the employer failed to pay overtime pay (a contravention of s. 11 and s. 22) and employee B's complaint alleged a failure to pay minimum wage (a contravention of s. 11 and s. 23).

Finally, if both employee A and B alleged a failure to pay overtime pay (a contravention of s. 11 and s. 22), they would be considered the same contravention and employee B's complaint would be treated as if it had been filed on the date A filed their complaint.

Same — s. 111(8) (Repealed)

Note that s. 111(8) was a transitional provision that was repealed on February 20, 2017 in accordance with ss. 8(6) and 10(6) of Schedule 2 to the Stronger Workplaces for a Stronger Economy Act, 2014.

Prior to its repeal, this provision restricted the application of s. 111(6) to situations where the subsequent complaint(s) is filed before the officer has issued an order with respect to the original complaint or sent a letter advising that complainant of the decision not to issue an order. Because s. 111(6) only applied with respect to wages that came due prior to February 20, 2015, s. 111(8) similarly applied in situations where employees who have filed a subsequent complaint are owed wages that were due prior to February 20, 2015. However, it is Program policy that s. 111(8) continues to apply to wages that became due before February 20, 2015, even if any associated orders are issued after February 20, 2017.

In other words, s. 111(6), which provided that the six-month/one-year limits on recovery run from the date the first complaint has been filed (in the event there are multiple complaints for substantially the same contravention) does not apply if the subsequent complaint(s) are received after the employment standards officer has issued an order or sent a letter advising the earlier complainant that the officer will not be issuing an order.

Extending time limits

Despite the mandatory time limits on recovery set out in s. 111, it may be possible for the six/12-month time limits that apply with respect to wages that came due prior to February 20, 2015, as well as the two-year limitation on recovery that applies with respect to wages that came due on or after that date, to be extended in exceptional cases. The Court of Appeal in Halloran v. Sargeant, 2002 CanLII 45029 (ON CA) held that in the appropriate circumstances, the equitable doctrine of fraudulent concealment applies to relieve against statutory time limits on recovery.

In Halloran v. Sargeant, Mr. Halloran filed a claim for severance pay under the former ESA more than five years after his separation from his employer. The relevant provision of the former Employment Standards Act at that time, s. 82(2), had a two-year limitation on recovery; thus, the section, on its face, barred any recovery for Mr. Halloran as his severance pay would have become due more than five years before he filed his claim. The Court of Appeal held that the Ontario Labour Relations Board should have applied the equitable doctrine of fraudulent concealment in order to relieve against the two-year time limit. The Court of Appeal held that this doctrine was applicable because the employer, on separation, had represented to Mr. Halloran that an unreduced early pension without severance pay exceeded what Mr. Halloran was entitled to under provincial law. The Court found that Mr. Halloran relied on this representation but changed his mind and decided to file a claim under the former Employment Standards Act some years later after reading in the newspaper about the Court decision affirming that certain other employees of the company who had pursued Employment Standards Act claims after their separation were in fact entitled to severance pay. Fraudulent concealment necessary to suspend the operation of the limitation period need not, according to the Court, amount to deceit or fraud in the ordinary sense. There is no suggestion in the case that the employer was fraudulent in the ordinary sense of that word. The Court held that employers have an obligation to provide accurate information to employees and it was not "right or reasonable" for the employer to take the benefit of s. 82(2) where it had made a misrepresentation to the employee concerning his statutory rights and where the employee relied on that misrepresentation to his detriment. The Court held that this was sufficient to engage the fraudulent concealment doctrine.

The principles set out in Halloran v. Sargeant may apply to provide relief against the six-month/one-year and two-year limitation period in s. 111 to allow a claim that would otherwise be out of time where:

• An employee has been misled as their entitlements under the Employment Standards Act, 2000 by their employer and for that reason delayed in filing their claim; and
• The employee took prompt steps to file a claim after they found out that what the employer said about the Employment Standards Act, 2000 entitlement was inaccurate.

In determining whether the fraudulent concealment applies to allow recovery of a claim that on its face is time barred or which includes entitlements more than six/12 months or two years before the claim was filed, employment standards officers should inquire as to the reason for delay in filing:

• If the employer made no representation as to the employee’s legal entitlements but simply refused to pay, then there would be no relief for the employee under the Halloran principles.
• If the employer tells the employee that the employer does not have to pay, there would be no relief from the time limits.
• If, on the other hand, the employer tells the employee that it has no obligation to pay under the law or under the Employment Standards Act, 2000, then the employee may be entitled to relief under the Halloran v. Sargeant principles.

It does not matter whether the employer’s misrepresentation is innocent, negligent or dishonest in order for the doctrine of fraudulent concealment to apply.

Section 112 — Settlement

Settlement — s. 112(1)

Subsection 112(1) of the Employment Standards Act, 2000 allows an employer and employee to enter into a settlement regarding a contravention or alleged contravention of the Employment Standards Act, 2000 by informing an employment standards officer in writing of the settlement and doing what they have agreed to do under it. Note that s. 112 as well as ESA Part XXII, s. 101.1 (and unlike ss. 120 and 129) apply only to settlements between an employer and employee and so cannot be used to settle a complaint that relates to a corporate director’s liability or to settle a director’s order to pay issued under ESA Part XXII, s. 106 or s. 107.

However, it should be noted that for the purposes of both s. 101.1 and s. 112 settlements in respect of Part XVIII.1, that a reference to an "employer" includes a reference to a client of a temporary help agency and a reference to an "employee" includes a reference to an assignment employee or prospective assignment employee.

Note as well that a settlement agreement may be made by an agent acting on behalf of the employer (e.g., a director of a corporate employer) or the employee. As a result, a director of the employer could, if acting as agent for the employer, enter into a settlement under s. 112 of a complaint against, or corporate order issued to, an employer. In that case, any proceedings other than a prosecution against both the employer and the corporate director would be terminated under s. 112(1)(d). See also ESA Part III, s. 7 for a discussion of the binding effect of an agreement or authorization made by an agent of the employee.

Other settlement provisions

The other provisions of the Employment Standards Act, 2000 that allow for settlement agreements between the parties to an employment standards complaint are as follows:

• ESA Part XXII, s. 101.1 provides the authority for an employment standards officer to facilitate a settlement between an employee and an employer respecting a contravention or alleged contravention of the Employment Standards Act, 2000
• ESA Part XXIII, s. 120 provides that the Ontario Labour Relations Board may authorize a labour relations officer to attempt to effect a settlement of matters raised in an application for review under ESA Part XXIII, s. 116
• ESA Part XXIV, s.129 provides that a collector appointed by the Director of Employment Standards may effect a settlement of the amount owing under the Employment Standards Act, 2000 if the creditor (generally the employee) agrees in writing to the settlement

However, s. 112 settlements are unique under the Employment Standards Act, 2000 in that they are not facilitated by a third party such as an employment standards officer or labour relations officer or a collector but are effected by the parties themselves, i.e., the employer and the employee.

When parties may enter into settlement

The parties may enter into such an agreement before or after:

• A determination has been made, e.g., during or following an investigation or inspection;
• An employment standards officer issues an order under ss. 74.14, 74.16, 74.17, 103, 104, 106 or 107 — see ss. 112(2) and (3) regarding exceptions related to compliance orders and notices of contravention; or
• An application for review has been made or a review hearing is commenced.

This provision clearly contemplates that the parties may enter into a settlement under s. 112 even after initiating an application for review. This intent is also apparent in ESA Part XXIII, s. 117(3), which specifically provides that where an employer applies for a review and the matter is settled under s. 112 or s. 120, monies held in trust shall be paid out in accordance with the settlement, subject to s. 112(6) or s. 120(6). The parties are not restricted to a settlement effected by a labour relations officer under s. 120.

Effect of entering into settlement

Where a settlement has been entered into, any complaint filed by the employee respecting the contravention or alleged contravention is deemed to have been withdrawn, any order that may have been issued under ss. 74.14, 74.16, 74.17, 103, 104, 106 or 107 in respect of the contravention is voided and any application for review or a hearing under s. 116 that has been initiated respecting the contravention is terminated. However, a settlement under this section will have no impact on any prosecution that may have been commenced.

A settlement only settles the issues that the settlement document says it settles, and no more. For example, an employee filed a claim for vacation pay and termination pay. At no point — either in the claim form or afterwards, for example, during any discussion — was an issue of a minimum wage contravention raised. The employee and employer entered into a settlement whose terms specified that it was in settlement of the vacation pay and termination pay claims; it did not state that it was in settlement of all ESA issues that may have arisen during the course of the employment relationship up to the date of the settlement. The employee, after receiving the payment and wage statement from the employer due under the settlement, became aware that she hadn't been paid minimum wage. In this example, as the settlement did not cover the minimum wage issue, the claimant is able to pursue a minimum wage claim. The minimum wage issue would have been covered by the settlement only if:

• The settlement document specifically stated that it covered any claim to minimum wage, or
• The settlement document contained an all-encompassing statement that all ESA issues that arose out of the employment relationships up to the date of settlement are covered, or
• The settlement document contained a statement indicating that it is settling "the claim" or "claim #XXXXX" and the minimum wage issue had been raised — either in the claim form itself or afterwards, for example during discussions, such that both the employee and employer would have known that minimum wage was an issue in the claim and that they therefore intended the settlement to cover that issue.

Subsection 112(1) must be read subject to s. 112(8), which provides that where an employee demonstrates to the Ontario Labour Relations Board that tey entered into the settlement as a result of fraud or coercion, the settlement is void.

It should also be noted that the binding effect of the settlement and its impact on a complaint, order or proceeding is dependent on the parties to the settlement doing what they have agreed to do under it. For example, if the employer and employee have settled the matter with the agreement that a specific sum of money will be paid to the employee and such monies are not paid, this section will not apply and the matter will proceed as if there had been no settlement.

See also ESA Part XXIII, s. 120, which deals with settlements effected by a labour relations officer of matters raised in an application for review under ESA Part XXIII, s. 116.

Compliance orders — s. 112(2)

Subsection 112(2) provides that clause 112(1)(c) which would otherwise void any order if the parties have made a settlement under s. 112(1) does not apply to a compliance order issued under ESA Part XXII, s. 108. In other words, if an employment standards officer has issued a compliance order, it will not be voided by a subsequent settlement.

This subsection precludes the parties from entering into a settlement that would allow the employer to effectively contract out of its obligations to comply with the Employment Standards Act, 2000 imposed by a compliance order. Subsection 112(2) is necessary because settlements under s. 112 may be made by the parties without the approval of the employment standards officer. Under s. 112(1) all that is required is that the parties inform the employment standards officer of the settlement.

Note that where a settlement is effected by a labour relations officer under ESA Part XXIII, s. 120, a compliance order may be voided. However, such settlements require the approval of the Director of Employment Standards as per s. 120(3).

This provision must be read in conjunction with s. 112(9), which provides that for the purposes of applying s. 112 with respect to ESA Part XVIII.1, any reference to an employer includes a reference to a client of a temporary help agency and any reference to an employee includes a reference to an assignment employee or a prospective assignment employee.

Notices of contravention — s. 112(3)

Subsection 112(3) provides that there is no settlement option where the officer has issued a notice of contravention under ESA Part XXII, s. 113. The notice of contravention allows an officer to assess a monetary penalty, as set out in O. Reg. 289/01, where the employer is found to have contravened the Employment Standards Act, 2000. The penalty imposed under the notice of contravention cannot be the subject of any settlement agreement because the parties to the notice of contravention are the Ministry and the employer, rather than the employee and the employer.

Payment by officer — s. 112(4)

Subsection 112(4) allows the officer to pay the monies received on a settlement made under s. 112 directly to the employee or to the Director in trust.

This provision must be read in conjunction with s. 112(9) which provides that, for the purposes of applying s. 112 with respect to Part XVIII.1, any reference to an "employer" includes a reference to a client of a temporary help agency and any reference to an "employee" includes a reference to an assignment employee or a prospective assignment employee.

Same — s. 112(5)

Subsection 112(5) provides that money collected by the employment standards officer with respect to an employee under the terms of a settlement in s. 112(1) and paid to the Director in trust, is to be paid by the Director to the employee.

This provision must be read in conjunction with s. 112(9) which provides that for the purposes of applying s. 112 with respect to Part XVIII.1, any reference to an "employer" includes a reference to a client of a temporary help agency and any reference to an "employee" includes a reference to an assignment employee or a prospective assignment employee.

See Delegation of Powers for information regarding the persons to whom the power to receive monies in trust has been delegated.

Administrative costs and collector fees — s. 112(6)

The Employment Standards Amendment Act (Temporary Help Agencies), 2009, S.O. 2009, c. 9, amended this provision effective November 6, 2009, to include a reference to fees paid pursuant to an order issued under s. 74.14. The Fair Workplaces, Better Jobs Act, 2017, S.O. 2017, c. 22 further amended this provision to provide for the recovery of a proportion of a collector’s fees and disbursements based on the amount the employee is entitled to receive under a settlement made under s. 112.

Note that wWhile this provision states that it is the Director who is entitled to the collector’s fees and disbursements, the Director may delegate collection activities to a collector and authorize the collector to collect the fees and disbursements under s. 127.

Clause 112(6)(a) establishes the Director’s entitlement to a proportionate amount for administrative costs, despite the fact that the order has been voided as a result of a settlement. Where there is a settlement of an order, administrative costs payable to the Director of Employment Standards will be a proportion of the administrative costs assessed under the order. The proportion is calculated as the amount paid to the employee under the settlement, divided by the amount assessed as owing to the employee under the order. For example, consider an order issued for $1,000 in wages plus a $100 administrative fee. The employer and employee subsequently enter into a settlement under s. 112 providing for a $500 payment to the employee. The proportion of wages paid under the settlement to the amount assessed under the order is one half. Therefore, the administrative fee payable to the Director would be one half of the $100 assessed under the order, or $50. See also the discussion of ESA Part XXIII, s. 117(3) and s. 120(6).

Clause 112(6)(b) establishes the Director’s entitlement to a proportionate amount for the collector’s fees and disbursements when a settlement is reached between an employer and employee after the order has been assigned to the collector and the collector has sought to collect the amount owing.

For example, consider an order issued for $1,000 in wages plus a $100 administrative fee that the collector is seeking to collect. Assuming the Director has authorized the collector to collect 20% of the order to pay in respect of the collector’s fees in accordance with s. 127(3), a collection fee of $220 (($1000 + $100) × 20%) would be added to the order. If the employer and employee entered into a s. 112 settlement in the amount of $800 (80% of the amount owing to the employee), the collector would be entitled to a proportional amount of the fee in the amount of $176 ($220 × 80% = $176), based on the settlement reached.

Note that this provision must be read in conjunction with s. 112(9) which provides that for the purposes of applying s. 112 with respect to Part XVIII.1, any reference to an "employer" includes a reference to a client of a temporary help agency and any reference to an "employee" includes a reference to an assignment employee or a prospective assignment employee.

Restrictions on settlements — s. 112(7)

Section 112(7) restricts the parties' ability to reach a settlement that would allow future contraventions of the Employment Standards Act, 2000. For example, although an employee may agree to accept a payment equivalent to straight pay for overtime hours worked in the past, the employee may not agree to work overtime in the future at straight time.

This provision must be read in conjunction s. 112(9) which provides that for the purposes of applying s. 112 with respect to Part XVIII.1, any reference to an "employer" includes a reference to a client of a temporary help agency and any reference to an "employee" includes a reference to an assignment employee or a prospective assignment employee.

Application to void settlement — s. 112(8)

Subsection 112(8) provides that a settlement entered into pursuant to s. 112 may be set aside where the employee can demonstrate to the Ontario Labour Relations Board that they entered into the settlement as a result of fraud or coercion. If the Board makes such a finding, the settlement is void, the employee’s complaint is deemed never to have been withdrawn, any order made with respect to the contravention or alleged contravention is reinstated and any proceeding that was terminated is resumed.

Only the Ontario Labour Relations Board has the authority to determine that an employee entered into a settlement as a result of fraud or coercion; officers do not have the authority to make that determination.

Note that s. 112(9) provides that, for the purposes of applying s. 112 with respect to Part XVIII.1, any reference to an "employer" includes a reference to a client of a temporary help agency and any reference to an "employee" includes a reference to an assignment employee or a prospective assignment employee.

In Dey v. Majestic Marble Import Ltd., 2016 CanLII 49544 (ON LRB), the claimant sought to void a settlement agreement regarding an Employment Standards Act, 2000 complaint. He claimed he was tricked into signing it because the employer told him that it was an order from the employment standards officer when it was not. The officer did not issue any orders against the employer in favour of the claimant. The claimant also argued that the settlement agreement should be void because of the way the employer treats its employees.

The Board cited J & Z Holdings Inc., 2005 CanLII 23310 (ON LRB), a previous decision in which the Board found that fraud requires an intent to defraud, and coercion includes persuading an unwilling person, by force, to sign a document. The Board also noted that while duress could be the basis for rendering an agreement void that does not mean that any form of pressure would make a decision void — the pressure would need to be undue or improper in the circumstances. Following the reasoning in J & Z Holdings Inc. that the evidence required for establishing fraud or coercion for the purposes of s. 112(8) must be very compelling, otherwise the effectiveness of the settlement process would be seriously undermined, the Board did not find any evidence of fraud or coercion.

The Board noted that the officer did not issue any orders against the employer, and accepted the employer’s evidence that they never misled the claimant regarding the nature of the settlement agreement. The Board also noted that an employer’s general behavior in other matters unrelated to the settlement is not a reason to void an otherwise valid settlement agreement. The Board concluded that there was no basis upon which it could reasonably conclude that the employer fraudulently tricked or coerced the claimant into signing the settlement agreement.

Application to part XVIII.1 — s. 112(9)

Section 112(9) specifies that for the purpose of applying s. 112 in respect of Part XVIII.1, any reference to an "employer" includes a reference to a client of a temporary help agency and any reference to the term "employee" includes a reference to an assignment employee or prospective assignment employee. For a discussion of the terms "assignment employee", "client" and "temporary help agency", see ESA Part I, s. 1(1). For a discussion of the definition of a "prospective assignment employee", see ESA Part XVIII.1, s. 74.8(4).

Section 113 — Notices of contravention

Notice of contravention — s. 113(1)

Section 113(1) permits an employment standards officer to issue a notice requiring payment of a specified penalty to a person that the officer believes has contravened the Employment Standards Act, 2000. This provision was amended by the Fair Workplaces, Better Jobs Act, 2017, S.O. 2017, c. 22, effective January 1, 2018.

The officer’s power to issue a notice of contravention is discretionary.

Note that the officer may issue a notice of contravention to any person the officer believes has contravened the Employment Standards Act, 2000. ESA Part I, s. 1 defines the term person. 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 113(1) must be read in conjunction with ss. 113(8) and (9) which provide that a notice of contravention may not be issued where the contravention is with respect to an employee who is represented by a trade union or where the contravention is committed by a director or officer of a corporate employer.

Amount of penalty — s. 113(1.1)

This subsection provides that the amount of the penalty is to be determined in accordance with the regulations. The penalty amounts are prescribed in O. Reg. 289/01 as follows:

For a contravention of ESA Part II, s. 2, ESA Part VI, s. 15, 15.1 or 16 identified to have occurred prior to January 1, 2018:

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

For a contravention of any other provision of the Employment Standards Act, 2000 identified to have occurred before January 1, 2018, the above listed penalties apply, but the penalty is multiplied by the number of employees affected.

For a contravention of ESA Part II, s. 2, ESA Part VI, s. 15, 15.1 or 16 identified to have occurred on or after January 1, 2018:

• $350
• $700 for a second contravention of the same provision within a three-year period, and
• $1500 for a third or subsequent contravention of the same provision in a three-year period.

For a contravention of any other provision of the Act identified to have occurred on or after January 1, 2018, the above listed penalties apply, but the penalty is multiplied by the number of employees affected.

Penalty within range — s. 113(1.2)

This section states that if a range has been prescribed as the penalty, the employment standards officer shall determine the amount of the penalty from within that range in accordance with any prescribed criteria. At the time of writing, no range has been prescribed and in accordance with s. 113(1.1) officers are therefore required to apply the penalties currently prescribed in O. Reg. 289/01.

Information — s. 113(2)

This provision requires the officer to provide information concerning the nature of the contravention together with the notice of contravention. This provision is similar to the obligation to provide information regarding the amount owing under ESA Part XXII, s. 103(5), regarding an order to pay wages.

The notice of contravention and accompanying documents (such as a copy of any order issued with respect to the contravention, a covering letter, officer’s narrative and worksheet) must set out enough information that the person to whom the notice is issued will know the nature of the violation of the Employment Standards Act, 2000 and the information that gave rise to the officer’s belief that there is or was a contravention of the Employment Standards Act, 2000.

The language of the section is specific: the notice of contravention must contain or have attached to it the information required. The fact that the person to whom the notice is issued had knowledge previously of the nature of the violation does not relieve the officer of the onus of setting out this information as part of the notice of contravention.

Service — s. 113(3)

Subsection 113(3) requires that a notice of contravention be served on the person against whom it is issued in accordance with ESA Part XXI, s. 95.

The service requirements set out under s. 113(3) for a notice of contravention are identical to those for all orders issued under the Employment Standards Act, 2000.

Repealed — s. 113(4)

Deemed contravention — s. 113(5)

Section 113(5) provides that although the officer has issued a notice of contravention under s. 113(1), the contravention is deemed to have occurred only if the person to whom it was issued fails to make an application for a review of the notice of contravention within 30 days after the date of service of the notice, or, on a review of the notice, the Ontario Labour Relations Board finds that the person contravened the provision set out in the notice. In the latter case, this may occur whether the Board affirms the notice or amends it.

Penalty — s. 113(6)

Section 113(6) creates an obligation to pay the penalty set out in the notice of contravention to the Minister of Finance, once the contravention is deemed to have occurred under s. 113(5).

It also requires payment of any collector’s fees and disbursements added to the amount of the penalty under ESA Part XXIV, s. 128(2). In other words, once the notice of contravention has been sent for collection, e.g., following the expiration of the period to apply for a review in ESA Part XXIII, s. 122(1), any authorized collector’s fees and disbursements are deemed to have been added to the amount set out in the notice of contravention.

Same — s. 113(6.1)

Section 113(6.1) establishes the time period within which the payment of the penalty to the Minister of Finance for the deemed contravention must be made. In the event that the notice is not appealed, the payment is due 30 days after the notice was issued. In the event the notice is appealed, the payment is due 30 days after the Board has found that there was a contravention.

Publication re: Notice of contraventions — s. 113(6.2)

This section permits the Director of Employment Standards to publish the name of the person or business that a notice of contravention has been issued to, as well as a description of the contravention, the date of the contravention, and the penalty for the contravention.

Note that the publishing of this information is restricted to situations where a person is deemed to have contravened the Act in accordance with s. 113(5). Such contraventions only occur when the recipient fails to file for a review of the Notice with the Ontario Labour Relations Board within the period set out in ESA Part XXIII, s. 122(1). Or, where the person has filed for a review and the Board finds that they did in fact contravene the provision set out in the notice. As a result, the publishing of this information cannot simply occur once the notice was issued, but only after the application for review has been upheld or the period for review has expired.

Internet publication — s. 113(6.3)

This subsection clarifies that the authority to publish the information set out in s. 113(6.2) includes authority to publish on the Internet.

Disclosure — s. 113(6.4)

This subsection states that where the Director has published information under s. 113(6.2) that such publication is deemed to be permitted under the Freedom of Information and Protection of Privacy Act, R.S.O. 1990, c. F.31.

Other means not a bar — s. 113(7)

Section 113(7) provides that an officer may issue a notice of contravention even though an order has been issued under the following provisions:

• ESA Part XVIII.1, s. 74.14: Order to recover fees relating to fees charged by a temporary help agency
• ESA Part XVIII.1, s. 74.16: Order for compensation relating to certain prohibited activities of temporary help agencies
• ESA Part XVIII.1, s. 74.17: Order for compensation or reinstatement relating to a reprisal by the client of a temporary help agency
• ESA Part XXII, s. 103: Order to pay wages
• ESA Part XXII, s. 104: Order for compensation or reinstatement issued for contraventions of Part XIV Leaves of Absence, Part XVI Lie Detectors, Part XVII Retail Business Establishments and Part XVIII Reprisal
• ESA Part XXII, s. 108: Compliance order.

An officer may also issue a notice of contravention if the person is or may be prosecuted for or convicted of an offence with respect to the contravention.

Trade union — s. 113(8)

Section 113(8) provides that a notice of contravention may not be issued with respect to an employee who is represented by a trade union. In other words, an arbitrator (or the Board on a related employer issue) enforcing the ESA under ESA Part XXII, s. 99 through 101, or an employment standards officer, enforcing the Employment Standards Act, 2000 in a case where the Director has exercised their discretion under ESA Part XXII, s. 99(6), would not be able to issue a notice of contravention.

Director — s. 113(9)

Section 113(9) provides that this section does not apply with respect to a contravention of the Employment Standards Act, 2000 by a director or officer of an employer that is a corporation. In other words, neither an employment standards officer nor the Board could issue a notice of contravention for a violation of the Employment Standards Act, 2000 by a director or officer of a corporate employer.

Section 114 — Limitation period re: orders and notices

Limitation period re: orders and notices — s. 114(1)

This subsection was amended by the Employment Standards Amendment Act (Temporary Help Agencies), 2009, S.O. 2009, c. 9, effective November 6, 2009 to include a reference to orders to recover fees under s. 74.14.

Section 114(1) establishes a two-year limitation period on the Ministry of Labour’s ability to issue an order for wages, fees or compensation or a notice of contravention. As no limitation is imposed with respect to an employment standards officer’s ability to issue an order for reinstatement, an officer may exercise their discretion to issue an order for reinstatement more than two years after a complaint was filed or an inspection commenced. However, it is Program policy that officers should generally not issue an order for reinstatement beyond the two years, to avoid putting employees who would be beneficiaries of such an order in a better position than employees who would be beneficiaries of an order for compensation, fees or wages.

Because this is a discretionary matter, however, officers should be prepared to consider any arguments that an order for reinstatement should be issued that might be put forward notwithstanding the passage of two years. It may be that in exceptional cases, there are good reasons for issuing a reinstatement order after two years have passed.

It should also be noted that there is no limitation period with respect to the officer’s ability to issue an order for compliance. As a result, an officer may exercise their discretion to issue an order for compliance more than two years after a complaint was filed or an inspection commenced. Because this is a discretionary matter, officers should be prepared to consider any arguments that an order for compliance should be issued notwithstanding the passage of two years. However, it is Program policy that officers should generally not issue an order for compliance where the employer is currently operating in compliance with the Employment Standards Act, 2000.

The two-year period for issuing an order for wages, fees or compensation or a notice of contravention commences with the following:

1. If employee A filed on a complaint, on the date the complaint was filed; or
2. If employee B had not filed a complaint but B's entitlement was discovered in the course of an investigation into the complaint filed by A, on the date on which A's complaint was filed; or
3. If C did not file a complaint but C's entitlement was discovered during an inspection (rather than an investigation into another employee’s complaint), on the date the inspection was commenced.

This provision must be read in conjunction with s. 114(6) which provides that, for the purposes of applying s. 114 with respect to ESA Part XVIII.1, any reference to an employer includes a reference to a client of a temporary help agency and any reference to an employee includes a reference to an assignment employee or a prospective assignment employee.

Example 1:

• Employee A filed a complaint January 1, 2002
• Officer must issue order for wages, fees or compensation or notice of contravention on or before December 31, 2003

Example 2:

• Employee A filed a complaint January 1, 2002
• Employee B's entitlement discovered during course of investigation into A's complaint
• Officer must issue order for wages, fees or compensation or notice of contravention with respect to either or both A and B on or before December 31, 2003

Example 3:

• No complaint filed
• Officer commenced an inspection of workplace January 1, 2002
• During course of inspection, employee A, B and C entitlements are discovered
• Officer must issue order for wages, fees or compensation or a notice of contravention with respect to any or all of A, B and C on or before December 31, 2003

Complaints from different employees — s. 114(2)

Section 114(2) creates an exception to the rule in s. 114(1)(a) which provides that the two-year limitation period commences on the date the employee filed their complaint. Under s. 114(2), if two or more employees file complaints with respect to substantially the same contravention as defined in ESA Part XXII, s. 115, the date that the first employee filed their complaint will be the start date for the two-year limitation period, subject to s. 114(3).

For example, if employee A filed a complaint regarding overtime pay on December 31, 2001 and employee B subsequently filed a complaint for overtime pay on January 15, 2002, the employment standards officer will be required to issue an order to pay wages or notice of contravention with respect to either or both employee A and B on or before December 30, 2003.

This provision must be read in conjunction with s. 114(6) which came into force on November 6, 2009. Section 114(6) provides that, for the purposes of applying s. 114 with respect to ESA Part XVIII.1, any reference to an employer includes a reference to a client of a temporary help agency and any reference to an employee includes a reference to an assignment employee or a prospective assignment employee.

Exception — s. 114(3)

Section 114(3) creates an exception to the rule in s. 114(2), which provides that if two or more employees file complaints with respect to substantially the same contravention as defined in ESA Part XXII s. 115, the date that the first employee filed their complaint will be the start date for the two-year limitation period for issuing, amending or rescinding an order to pay wages, fees or compensation or notice of contravention in respect of not only the first complaint but the subsequent complaint as well.

Under s. 114(3), if the employment standards officer had already issued an order or advised the first complainant that they were refusing to issue an order before the subsequent complaint was filed, an order for wages, fees or compensation or a notice of contravention may be issued with respect to the subsequent complaint (even though it concerns substantially the same contravention as the first complaint) within two years of the date the subsequent complaint was filed.

Note that this provision must be read in conjunction with s. 114(6) which provides that, for the purposes of applying s. 114 with respect to ESA Part XVIII.1, any reference to an employer includes a reference to a client of a temporary help agency and any reference to an employee includes a reference to an assignment employee or a prospective assignment employee.

Example 1:

• Employee A filed a complaint for overtime pay against employer Z on December 31, 2009
• Employment standards officer issues an order to pay overtime wages to employer Z on March 15, 2010
• Employee B files a complaint for overtime pay against employer Z on April 1, 2010
• Employment standards officer has until March 31, 2012, to issue an order to pay wages or a notice of contravention with respect to B's complaint

It should be noted that s. 114(3) does not apply if the officer has issued only a notice of contravention (i.e., has not issued an order) with respect to A's complaint, prior to B filing a complaint for substantially the same contravention. Therefore, although the officer has issued a notice of contravention with respect to A's complaint before B's complaint was filed, the limitation period on the officer’s ability to issue an order to pay wages, fees or compensation with respect to B's complaint is still the two-year period running from the date A's complaint was filed.

Example 2:

• Employee A filed a complaint for overtime pay against employer Z on December 31, 2009
• Employment standards officer issues a notice of contravention (but no order to pay overtime wages) to employer Z on March 15, 2010
• Employee B files a complaint for overtime pay against employer Z on March 31, 2010
• Employment standards officer has only two years from the date A filed their complaint (i.e., until December 30, 2011) to issue an order or a notice of contravention with respect to B's complain

Restriction on rescission or amendment — s. 114(4)

This subsection was amended by the Employment Standards Amendment Act (Temporary Help Agencies), 2009, which came into force on November 6, 2009, to include a reference to orders to recover fees under ESA Part XVIII.1, s. 74.14.

This provision must be read in conjunction with s. 114(6) which provides that, for the purposes of applying s. 114 with respect to ESA Part XVIII.1, any reference to an employer includes a reference to a client of a temporary help agency and any reference to an employee includes a reference to an assignment employee or a prospective assignment employee.

Section 114(4) states that the officer shall not amend or rescind their order to pay wages, fees or compensation after the two-year limitation period in s. 114(1) unless the consent of the employer to whom it was issued and the affected employee(s) is first obtained.

Note that s. 114(4) does not provide for the extension of the two-year limitation for amending or rescinding an order issued against anyone other than an employer or a client of a temporary help agency per s. 114(6). As a result, an order against a corporate director issued under ESA Part XXII, s. 106 or s. 107 could not be amended or rescinded after the two-year limitation period.

The authority for the officer to amend or rescind an order prior to the expiry of the limitation period springs from the Legislation Act, 2006, S.O. 2006, c. 21, Sched. F, which states:

An example of where this section might be applicable is where, in a large and complex case, the employer, the officer, and the employees all agree that the quality of the investigation would be better if the officer carried it on past the two-year time limit. In such a case, with the agreement of the parties, an order could be issued for the amount that was already determined and then amended (in accordance with the subsequent portion of the investigation) after the two-year limit expired. Of course, in such a case, it would be advisable for the officer to obtain the necessary consents before the two-year period expired.

Same — s. 114(5)

This section is similar to s. 114(4). It imposes a two-year time limit on the amendment or rescission of a notice of contravention issued under ESA Part XXII, s. 113 except where the officer has the consent of the employer against whom the notice was issued.

This provision must be read in conjunction with s. 114(6) which came into force on November 6, 2009. Section 114(6) provides that, for the purposes of applying s. 114 with respect to ESA Part XVIII.1, any reference to an employer includes a reference to a client of a temporary help agency and any reference to an employee includes a reference to an assignment employee or a prospective assignment employee.

Application to part XVIII.1 — s. 114(6)

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

Section 114(6) specifies that when s. 114 is applied with respect to ESA Part XVIII.1, any reference to an employer includes a reference to a client of a temporary help agency and any reference to the term employee includes a reference to an assignment employee or prospective assignment employee. For a discussion of the terms assignment employee, client and temporary help agency, see ESA Part I, s. 1(1). For a discussion of the definition of prospective assignment employee see ESA Part XVIII.1, s. 74.8(4).

Section 115 — Meaning of "substantially the same"

Meaning of "substantially the same" — s. 115(1)

Section 115(1) defines the term "substantially the same" as it is used in ESA Part XXII, s. 114(2). Section 114(2) provides that where more than one employee has filed a complaint about substantially the same contravention, the two-year limitation period on issuing, amending and rescinding an order for wages, fees or compensation begins to run on the date the first complaint was filed, subject to ESA Part XXII, s. 114(3).

Section 115(1) provides that contraventions will be considered to be substantially the same where the employees are entitled to recover money for contraventions that are violations of the same provision of the Employment Standards Act, 2000 or the regulations or identical or virtually identical provisions of the employees' employment contracts. However, this subsection must be read subject to s. 115(2).

This provision must also be read in conjunction with s. 115(1.1) which came into force on November 6, 2009. Section 115(1.1) provides that, when s. 115(1) is applied with respect to ESA Part XVIII.1, any reference to an employer includes a reference to a client of a temporary help agency and any reference to an employee includes a reference to an assignment employee or a prospective assignment employee.

Application to part XVIII.1 — s. 115(1.1)

This provision was introduced by the Employment Standards Amendment Act (Temporary Help Agencies), 2009, S.O. 2009, c. 9, which came into force on November 6, 2009.

Section 115(1.1) provides that when s. 115(1) is applied with respect to a provision under ESA Part XVIII.1, any reference to an employer includes a reference to a client of a temporary help agency and any reference to an employee includes a reference to an assignment employee or a prospective assignment employee. For a discussion of the terms assignment employee, client and temporary help agency, see ESA Part I, s. 1(1). For a discussion of the definition of prospective assignment employee, see ESA Part XVIII.1, s. 74.8(4).

Exception, payment of wages, deductions — s. 115(2)

Section 115(2) provides that where the contraventions are the same only in that they are a contravention of the payment of wages provision in ESA Part V, s. 11 or the prohibition against deductions from wages in ESA Part V, s. 13, they will not be treated as substantially the same.

As a result, s. 114(2), which allows the limitation period on issuing, amending or rescinding an order for wages, fees or compensation, or a notice of contravention with respect to more than one complaint, to run from the date the first complaint is filed (if subsequent complaints are for substantially the same contraventions) does not apply if the contraventions are substantially the same only because they are all contraventions of ESA Part V, s. 11 and 13.

Example:

• Employee A files a complaint for unpaid overtime pay on November 1, 2009 (a contravention of s. 22 and s. 11)
• Employee B files a complaint for unpaid public holiday pay on December 1, 2009 (a contravention of s. 26 and s. 11)

In this example, employee A's complaint and employee B's complaint would not be treated as substantially the same. Therefore, the limitation period for issuing, amending or rescinding an order or notice of contravention would end on October 31, 2011, with respect to employee A's complaint and on November 30, 2011, with respect to employee B's complaint.