Section 29 – OLRB review of order, etc.
Ontario Labour Relations Board review of order, etc. - s. 29(1)
Subsection 29(1) provides that a person against whom an order has been issued is entitled to a review of the order by the Ontario Labour Relations Board if he or she meets the conditions set out in s. 116(1) of the Employment Standards Act, 2000. Subsection 116(1) of the Employment Standards Act, 2000 establishes that a person is entitled to a review if:
- He or she applies to the Board in writing for a review;
- In the case of an order under s. 74.14 or s. 103 (with the corresponding Employment Protection for Foreign Nationals Act, 2009, S.O. 2009, c. 32 (EPFNA) order being an order to repay fees or to repay costs), he or she pays the amount owing under the order to the Director in trust or provides the Director with an irrevocable letter of credit acceptable to the Director in that amount; or
- In the case of an order under ss. 74.14, 74.17 or 104 (with the corresponding EPFNA order being a s. 24(4) order for compensation), he or she pays the lesser of the amount under the order and $10,000 to the Director in trust or provides the Director with an irrevocable letter of credit acceptable to the Director in that amount.
For a discussion of s. 116(1) of the Employment Standards Act, 2000, see ESA Part XXIII.
Subsection 29(1) should be read in conjunction with s. 29(5) which incorporates by reference, amongst other Employment Standards Act, 2000 provisions, ss. 116(4) and 116(5) of the Employment Standards Act, 2000. Section 116(4) sets out a 30-day time limit for applying for a review, and s. 116(5) allows the Ontario Labour Relations Board to extend the time allowed to apply for a review, if it considers it appropriate to do so.
Review of order, sought by foreign national - s. 29(2)
This provision provides that a foreign national in respect of whom an order to repay fees, an order to repay costs, an order for compensation or an order for reinstatement has been issued is entitled to a review of the order by the Ontario Labour Relations Board if he or she fulfils the conditions under s. 116(2) of the Employment Standards Act, 2000.
Subsection 116(2) of the Employment Standards Act, 2000 establishes the right of an employee in respect of whom certain orders have been issued to a review of the order if the application for review is made in writing and is made within thirty days of service of the order. Therefore, a foreign national seeking a review of an order to repay fees, an order to repay costs, an order for compensation or an order for reinstatement must, within thirty days of the service of the order, apply to the Board for a review of the order in writing.
For a more detailed discussion of s. 116(2) of the Employment Standards Act, 2000 see ESA Part XXIII.
Note that foreign nationals have no entitlement to a review of an order issued against a director under s. 24(7) or to a review of a compliance order issued under s. 24(6).
Same, refusal to issue order - s. 29(3)
Subsection 29(3) provides that a foreign national who has filed a complaint alleging a contravention of the Act can apply to the Ontario Labour Relations Board for a review the employment standards officer’s decision not to issue an order to repay fees, an order to repay costs, an order for compensation or an order for reinstatement if he or she meets the conditions set out in s. 116(3) of the Employment Standards Act, 2000.
Subsection 116(3) of the Employment Standards Act, 2000 provides employees who have filed a complaint alleging a contravention of the Employment Standards Act, 2000 with an entitlement to a review of an employment standards officer’s decision not to issue certain orders. The application for a review must be made in writing within thirty days after service of the letter advising the employee of the officer’s refusal to issue an order. The 30-day time period applies where an employment standards officer refuses to issue an order, as well as where there is a deemed refusal to issue an order under s. 110(2) (which corresponds to s. 29(2) of EPFNA). It is important to note that subsection 116(3) of the Employment Standards Act, 2000 only applies where the employee in question has filed a complaint. Subsection 29(3) thus makes these principles apply in the context of EPFNA, as well.
See ESA Part XXIII for the Program’s interpretation of s. 116(3).
Exceptions, orders against directors - s. 29(4)
This subsection provides that even though foreign nationals have the right to a review under subsections (2) and (3), there is no right to a review of an order issued against a director under s. 24(7), nor is there a right to a review of an employment standards officer’s refusal to issue an order against a director under s. 24(7). See the discussion at EPFNA s. 24(7).
Requirements - s. 29(5)
Subsection 29(5) establishes that ss.116 (4) to (9), and ss. 117 and 118 of the Employment Standards Act, 2000 apply with respect to a review.
In very general terms, those provisions address the limitation periods for applications for review to the Ontario Labour Relations Board, allow the Board to extend the limitation period, require the Board to hold review hearings and establish certain requirements for hearings at the Board, specify the parties to the review, allow the Board to establish its own practice and procedure, provide that money held in trust pending a review must be held in an interest-bearing account and paid out with interest in accordance with a settlement or Board decision, and provide that the chair of the Board may make rules of practice and procedure.
For a discussion of these provisions, see ESA Part XXIII.
Powers of the board - s. 29(6)
Subsection 29(6) provides that the Ontario Labour Relations Board has the powers set out in ss. 119 and 120 of the Employment Standards Act, 2000 on a review of an order or a refusal to issue an order under this Act. Section 119 deals with such matters as quorum, posting of notices and, most importantly, gives the Board the powers conferred on employment standards officers and authorizes the Board to substitute its findings for those of the officer whose decision is under review. Section 120 deals with such matters as interim orders, interest and judicial review of Board decisions.
For a detailed discussion of the powers of the Board, see ESA Part XXIII.