The intent of Part XXVI of the Employment Standards Act, 2000 is to establish certain evidentiary rules for prosecutions and proceedings under the Act.

Section 140 - Copy constitutes evidence

Copy constitutes evidence - s. 140(1)

This provision is substantially the same as the corresponding section (s. 80(1)(a)) in the former Employment Standards Act. Section 140(1) means that in a prosecution or proceeding under the Act, a copy of an order or notice of contravention that appears to have been signed by an employment standards officer or the Board is evidence of the order or notice and the facts contained therein without proof of the signature or office of the person who appears to have signed it.

This section does not mean that the copy is irrefutable proof of the order or notice and the facts contained therein. It merely means that it is evidence that can be rebutted by contrary evidence.

Same - s. 140(2)

This provision is substantially the same as the corresponding section (s. 80(1)(b)) in the former Employment Standards Act. Section 140(2) means that in a prosecution or proceeding under the Act, a copy of a record or other document or a copy of an extract from a record or other document that appears to have been certified as a true copy or accurate extract by an employment standards officer is evidence of the record or document or extracted part of the record or document and the facts contained therein without proof of the signature or office of the person who appears to have certified it or any other proof.

This section does not mean that a certified copy or extract is irrefutable proof that it is a true copy or extract and that the facts contained therein are true. It merely means that it is evidence that can be rebutted by contrary evidence.

Certificate of director constitutes evidence - s. 140 (3)

This provision was amended by the Employment Standards Amendment Act (Temporary Help Agencies), 2009 effective November 6, 2009 to reflect the fact that orders and notices of contravention may be issued to a "person" (e.g. a client of a temporary help agency) and not just an employer.

Section 140(3) states that in a proceeding or prosecution under the Act, a certificate that appears to be signed by the Director setting out that a person has failed to make any payment under an order or notice of contravention issued under the Act is evidence of the failure to pay without any further proof.

The section does not mean that such a certificate is irrefutable proof of non-payment. It merely means that it constitutes evidence of the non-payment, which may be rebutted by contrary evidence.

The section refers to "an order or notice of contravention issued under this Act" and therefore would include orders issued by employment standards officers, as well as orders issued by an arbitrator (pursuant to s. 100) or by the Board.

The Director of Employment Standards has not delegated this power.

Same, collector - s. 140(4)

This provision is substantially the same as the corresponding section (s. 80(3)) in the former Employment Standards Act.

Section 140(4) sets out various facts relating to the functioning of private collectors, which the Director of Employment Standards may certify. The section does not mean that the certificate of the Director is irrefutable proof of the facts set out therein. It merely means that it constitutes evidence of such facts, which may be rebutted by contrary evidence.

The Director of Employment Standards has not delegated this power.

Same, date of complaint - s. 140(5)

This provision is substantially the same as the corresponding section (s. 80(4)) in the former Employment Standards Act.

Section 140(5) recognizes that the Director of Employment Standards can issue a certificate setting out the date on which the records of the ministry indicate that a complaint was filed. This date is important with regards to the limitation periods in the Act (e.g., ss. 96(3) and 114) and s. 111, which creates a limit on the recovery of monies under the Act. The certificate of the Director under this subsection is evidence of that date without further proof. The section does not mean, however, that the certificate of the Director is irrefutable proof of the date. It merely means that it constitutes evidence of such a fact, which may be rebutted by contrary evidence.

The Director of Employment Standards has not delegated this power.