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The Ministry of Labour, Immigration, Training and Skills Development administers the Employment Standards Act (ESA) and its regulations by:

  • providing compliance support
  • conducting inspections of payroll records and workplace practices to ensure the ESA is being followed
  • investigating and resolving complaints
  • enforcing the ESA and its regulations

Compliance support

The ministry offers a wide range of publications and services to help employees and employers understand their rights and comply with their obligations. These include an employment standards poster, which employers are required to post in their workplaces; a catalogue of fact sheets and information sheets covering a variety of employment topics; and a suite of interactive online tools and calculators to help employers and employees understand provisions of the ESA, such as the termination tool, the public holiday pay calculator and the severance tool.

The ministry is also involved in outreach initiatives such as information seminars and workshops for employer groups, employment counsellors, and professional associations.

Inspections

Employment standards officers conduct inspections of payroll and other records, including a review of employment practices. An officer performing a proactive inspection will usually visit the employer's business location. Officers may notify the employer in writing before the inspection, but are not required to. A notice may set out a list of records and other documents the employer must provide during the inspection. The employer is required to produce the records requested and must answer questions that the officer thinks may be relevant.

An officer is able to take away records or other information for review and copying. The employer is welcome to ask questions, and to request further information.

Investigating complaints

When a claim is assigned for investigation, the employment standards officer may conduct their investigation by telephone, through written correspondence, by visiting the employer's premises or by requiring the employee and/or the employer to attend a meeting. During an investigation, both parties have the opportunity to present the facts and arguments they believe are important to their case. If a claim has been submitted against the client of a temporary help agency regarding a possible reprisal or unpaid wages, employment standards officers have the same powers of investigation with respect to the client as they do for an employer. The officer will make a decision based on the best available evidence which may include employer records, client records, employee records, and interviews.

During an investigation, there are strict timeframes that apply to requests for documents from employees, employers and clients of temporary help agencies. If the information is not provided in a timely manner, a decision may be made without consideration of those materials. Similarly, if both parties were required to attend a meeting but one did not show up, the employment standards officer may make a decision based solely on the evidence provided to the officer before the meeting and the evidence provided by the other party at the meeting.

Meetings

The purpose of the meeting is to allow the officer to gather evidence from each party. Each party speaks directly to the officer, in the presence of the other party (whether in person or by teleconference), rather than the parties speaking directly to each other. If one party wants to ask the other party a question, the question must be directed through the officer.

The format of each meeting depends on the case and the approach of individual officers. However, most meetings proceed as follows:

  • first, the claimant provides their account of what happened, and provides any evidence (documents or the testimony of witnesses) or refers to any evidence already provided.
  • the employer then provides its account of what happened, and provides any evidence or refers to any evidence already provided
  • the parties are given an opportunity to challenge the other party's account of what happened. The officer makes further inquiries of both parties where necessary
  • both parties are then given one last opportunity to provide or refer to any further evidence that may help the officer in making a decision.

After investigating a claim, the employment standards officer makes a decision about whether the employer has or has not followed the ESA.

If the officer finds that the employer has complied with the ESA:

  • the employee is notified in writing of this decision, and can apply for a review within 30 days.

If the officer finds that the employer has not complied with the ESA:

  • the officer may issue an order against the employer. (For more information, see "Enforcement", below.)
  • the officer may require an employer to post a notice containing specific information about administration or enforcement of the ESA, and/or a copy of the report or part of the report with the officer's findings.

Settlement

An employee and employer or the client of a temporary help agency can enter into a settlement to resolve their dispute. A settlement is an agreement made between an employee and their employer that will resolve the claim. The ESA allows this option in certain circumstances after a claim has been filed.

In some cases, the investigation of a claim could take months; particularly where there are multiple complex issues that require the review of a large number of documents and records. A quick resolution to a claim may be important to some claimants and employers. If the employer and the employee are willing to work together to find a mutually acceptable solution, they may try to settle a claim.

If the employee and employer do what they agreed to under the settlement, the claim is considered to be withdrawn and the investigation comes to an end.

Claimants and employers are not required to resolve a claim by entering into a settlement.

If a settlement is made, the employee and their employer will have to inform the ministry in writing of the terms of the settlement. The Notification of Section 112 Settlement Form and Section 112 Terms of Settlement forms can be used to inform the ministry of a settlement.

Complete the Notification of Section 112 Settlement form and attach the Section 112 Terms of Settlement and send both documents to the Ministry of Labour, Immigration, Training and Skills Development:

By mail to:
Provincial Claims Centre
Ministry of Labour, Immigration, Training and Skills Development
70 Foster Drive, Suite 410, Roberta Bondar Place
Sault Ste. Marie, ON
P6A 6V4
By fax: 1-888-252-4684

By email: esdocuments@ontario.ca

If the employer or the claimant fails to do what they said they would do in the settlement, the employer or the claimant can call the employment standards officer that was assigned to the claim. The name and telephone number of the employment standards officer can be found on the letter that they sent after the settlement was entered into. The employment standards officer will determine whether to resume the investigation of the claim.

If a claimant believes that the employer used fraud (lied to get the claimant to agree to the settlement) or coercion (used force or intimidation to get the claimant to agree to the settlement), the claimant can apply to the Ontario Labour Relations Board to have the settlement set aside.

Enforcement

Once an employment standards officer has made a decision that a contravention of the ESA has occurred, the officer can issue an order to pay direct – wages, an order to pay wages, a compliance order, a ticket, a notice of contravention or, for certain violations, an order to reinstate and/or compensate an employee. (More information about each of these follows.)

An officer can issue one or more orders, tickets and/or a notice of contravention in the course of an investigation or inspection.

In the case of a reprisal by a client of a temporary help agency, an officer can issue an order to reinstate in the assignment and/or compensate an employee for any loss incurred as a result of the contravention.

Employers and clients of temporary help agencies have the right to appeal an officer's order or a notice of contravention by making an application for review to the Ontario Labour Relations Board. The employer also has a number of options if an officer has issued a ticket.

Employees who have filed a claim or for whom an order has been issued have the right to appeal an order to pay wages or an order for compensation/reinstatement issued against their employer or against a client of a temporary help agency.

Order to pay direct - wages

An order to pay direct - wages is issued and served on an employer for wages or tips and other gratuitites owed to an employee or employees where the employer agrees to pay the employee directly.

The employer must comply with the order according to its terms, including paying the wages directly to the employee.

Order to pay wages

An order to pay wages is issued and served on an employer or a client of a temporary help agency for wages or tips and other gratuities owed to an employee or employees.

The employer or the client of a temporary help agency must comply with the order according to its terms, including paying the wages to the Director of Employment Standards in trust, or appeal the order within 30 days of the date the order is served. The order also requires the employer to pay an administrative cost of 10 per cent of the amount of the order, or $100, whichever is greater.

Compliance order

An officer can issue a compliance order if the officer finds that the employer has contravened a provision of the ESA. The officer can order an employer or other person to stop contravening the provision, and to take certain steps or stop taking certain steps in order to comply with it. The order must also specify a date by which the employer or other person must comply with the order. These orders cannot require payment of wages or compensation.

Example of a compliance order in addition to an order to pay wages

While investigating Lisa's claim for overtime pay, the employment standards officer discovered the employer was not giving the five employees proper meal breaks of at least 30 minutes after every five consecutive hours of work. Also, the employer had not posted the "What you should know about the Ontario Employment Standards Act" poster as required under the ESA.

In addition to the order to pay wages, the officer issued and served on the employer a compliance order directing it to: ensure that employees would receive their proper meal breaks; post the material required by the ESA; and post a copy of the compliance order in a conspicuous place at the workplace for a minimum of six months.

Tickets

An offence notice (commonly called a "ticket") can be issued under Part I of the Provincial Offences Act. Typically, tickets are issued for less serious ESA violations. Tickets will be issued to the employer responsible for the offence. Ticketable offences fall into three categories:

  • administrative and enforcement offences (e.g. failure to retain records)
  • contraventions of wage-based employment standards (e.g. failure to pay overtime pay)
  • contraventions of non-wage-based employment standards (e.g. requiring employees to work hours in excess of daily or weekly limits)

Tickets carry set fines of $295, with a victim fine surcharge added to each set fine plus court costs. If issued a ticket, an employer can choose to pay the fine or appear in a provincial court to dispute the charge set out in the ticket.

Notice of contravention

Employment standards officers have the power to issue notices of contravention with prescribed penalties when they believe someone has contravened a provision of the ESA. The penalty amount (payable to the "Minister of Finance") must either be paid or appealed within 30 days of the date the notice was served.

If the notice relates to a contravention of the poster requirements of the ESA or a failure to keep proper payroll records or to keep these records readily available for inspection by an employment standards officer, an officer can issue a notice of contravention with the following prescribed penalties:

  • $250 for a first contravention;
  • $500 for a second contravention in a three-year period;
  • $1,000 for a third contravention in a three-year period.

If an officer has found a contravention of any other provision of the ESA, the penalties prescribed are:

  • $250 for a first contravention multiplied by the number of employees affected;
  • $500 for a second contravention in a three-year period multiplied by the number of employees affected;
  • $1,000 for a third contravention in a three-year period multiplied by the number of employees affected.

Example of when there are further violations

Six weeks after serving the compliance order on Lisa's former employer, the officer visited the employer and conducted a further audit. The officer found that the employer was now paying overtime to all employees and had posted a copy of the compliance order. However, the employer had not provided a copy of the ESA poster and had not ensured that its five employees received proper meal breaks.

As a result, the officer issued and served a notice of contravention on the employer for failing to provide a copy of the ESA poster ($250 penalty) and failed to give proper meal breaks to five employees (5 × $250 = $1,250).

The officer also informed the employer that further violations could result in future notices of contravention being issued and/or prosecution by the ministry.

Order to compensate and/or reinstate

In the case of some violations, an officer can make an order requiring an employer to reinstate or compensate an employee or both. The violations in question relate to the following provisions of the ESA:

  • pregnancy, parental, sick, family medical, bereavement, family caregiver, family medical, critically ill child care, organ donor, reservist, domestic or sexual violence, child death and crime-related child disappearance leave
  • the right to refuse to work on a Sunday for certain retail employees;
  • reprisal against an employee for exercising their rights under the ESA.

The officer can order compensation for any reasonable, foreseeable loss the employee may have incurred. There is no maximum amount for an order for compensation.

Types of wages and compensation

An employment standards officer can order an employer to pay an employee the following:

  1. Actual unpaid wages (including vacation pay on the amount of unpaid wages). These are wages that were actually earned by the employee, but not paid.
  2. Compensation for direct earnings loss (including vacation pay on such earnings). This is what the employee would have earned but did not earn because of the violation.
  3. Pre-reinstatement compensation (i.e., compensation for losses incurred prior to reinstatement). This is the lost "earnings" (including vacation pay calculated on those earnings) from the date that the employee should have been reinstated to the date that the employee was reinstated.
  4. Payment for time required to find a new job (compensation) or termination pay (wages), including vacation pay. This may be payable when the employer terminates an employee's employment, and the employment standards officer does not issue an order for reinstatement and the employer does not reinstate voluntarily.
  5. Severance pay (wages). This may be payable when:
    • the employer severed the employee's employment;
    • the employment standards officer does not issue an order for reinstatement; and
    • the employer does not reinstate voluntarily.
  6. Compensation for expenses that the employee incurred in trying to find new employment. This may be payable if the employer terminated the employee's employment and the employment standards officer does not issue an order for reinstatement, and the employer does not reinstate voluntarily, or if the employee was reinstated, but the employee looked for a job before the employment standards officer issued the order or before the employer reinstated voluntarily.
  7. Compensation for loss of reasonable expectation of continued employment. This is to compensate the employee if they were deprived of a job that they were entitled to. This may be payable if the employer terminated the employee's employment, and the employment standards officer does not issue an order of reinstatement and the employer does not reinstate voluntarily.
  8. Compensation for emotional pain and suffering. This may be payable if an employee experienced emotional pain and suffering because of the employer's contravention.
  9. Compensation for benefit plan entitlements. This is where the employer's contravention of the ESA resulted in the employee losing benefit plan coverage. The employment standards officer can order compensation for:
    • costs that the employee had because the benefit plan coverage stopped (for example, the cost of dental work and prescription drugs); and/or
    • replacement cost for coverage.
  10. Compensation for other reasonably foreseeable damages. Generally, the types of damages listed above will cover the kinds of losses the employee suffered because of the contravention. However, any reasonably foreseeable damages may be made the subject of a compensation order.

Review (appeal) of an officer's decision

Reviews are conducted by the Ontario Labour Relations Board, an independent, quasi-judicial tribunal. If employees, employers or clients of temporary help agencies are not satisfied with an officer's decision, they may have the right to apply for a review (appeal). They must complete an Application for Review, setting out the facts and reasons for the application within 30 days of service of the order or notice.

To obtain an Application for Review form contact:

Ontario Labour Relations Board
505 University Avenue, 2nd Floor
Toronto, ON M5G 2P1
Tel: 416-326-7500
Fax: 416-326-7531

The Application for Review form must be submitted to:

The Registrar
Ontario Labour Relations Board
505 University Avenue, 2nd Floor
Toronto, ON M5G 2P1

Employee appeals

An employee who files a claim can appeal an officer's refusal to issue an Order to Pay Wages, an Order to Pay Fees, an Order to Pay Compensation and/or Reinstate or a Compliance Order.

An employee for whom an order has been issued (whether or not they filed a claim) can appeal the amount of an officer's Order to Pay Wages or an officer's Order to Pay Compensation and/or Reinstate.

For employees, the Application for Review must be submitted within 30 days of :

  • the date the letter advising the employee that an order has been issued against the employer or client of a temporary help agency, or
  • the date of the letter advising that the officer has refused to issue an order has been served on the employee.

Employer appeals

For employers and clients of temporary help agencies, the Application for Review must be submitted within 30 days of the date of being served with an order or notice.

Employers and clients of temporary help agencies can apply for a review of:

  • an Order to Pay Wages (the employer and client of a temporary help agency must pay the full amount of the order plus applicable administrative fees to the Director of Employment Standards in trust)
  • an Order to Pay Fees (and client of a temporary help agency must pay the full amount of the order plus applicable administrative costs to the Director of Employment Standards in trust)
  • a Compliance Order (these orders do not require payment of wages or compensation)
  • a Notice of Contravention (the employer or client of a temporary help agency does not have to pay the amount of the penalty before the review hearing can proceed)

In addition, employers and clients of temporary help agencies can apply for a review of an Order to Pay Compensation and/or Reinstate an employee. The employer or the client of a temporary help agency must pay the amount owing under the order or $10,000 (whichever is lesser) to the Director of Employment Standards in trust.

Offence notice ("ticket")

Employers who receive a ticket must, within 15 days of the receipt of the ticket, choose one of the following:

  • Plead guilty by paying the amount owing on the ticket.
  • Plead guilty with an explanation to a Justice of the Peace. The employer must bring their ticket to the Provincial Offences Court to provide explanations as to why the amount or time of payment of the ticket should be reduced.
  • Plead not guilty and fill out the notice of intention to appear in court. The court will schedule a trial.

An employer who does not elect one of the above options within 15 days of receiving the ticket, will be deemed not to dispute the charge.

Delivering materials to the provincial director of employment standards

The copy of the Application for Review Form and other documents should be sent, in order of preference, as follows:

Payments

Payments must be made to the "Director of Employment Standards in trust" within 30 days of service of the order. It is to be made by cheque, money order or letter of credit. It is strongly recommended that the approved template for letters of credit is used.

Forward payments to:

Address for mail, courier or hand delivery:
Director of Employment Standards
Employment Practices Branch
Ministry of Labour, Immigration, Training and Skills Development
400 University Avenue
9th Floor
Toronto, ON M7A 1T7

The ministry will issue a proof of payment to the employer or client of a temporary help agency, and will hold the payment in trust.

Letters of credit

A letter of credit is a formal written promise made by a financial institution (usually a bank) to pay money to a third party.

An employer, recruiter or other person who has a monetary order issued against them, can request a letter of credit from their bank to pay (in full or part) the Director of Employment Standards. You are strongly encouraged to use this approved letter of credit template when you make a request.

Examples of monetary orders that can be issued against an employer, recruiter or other person under the ESA and the Employment Protection for Foreign Nationals Act, 2009 (EPFNA) are:

  • Order to Pay Compensation (ESA and EPFNA)
  • Order to Pay Wages (ESA)
  • Order to Recover Fees (ESA)
  • Order to Repay Fees (EPFNA)
  • Order to Repay Costs (EPFNA)

If the director demands payment, the bank will make the payment automatically.

If an employer, recruiter or other person is required to pay money into trust to start an appeal, they can:

  • pay the required amount of the order in trust to the Director of Employment Standards
  • provide a letter of credit from a bank to the Director of Employment Standards in a form that is acceptable to the director.

The director will usually find a letter of credit acceptable if it:

  • is irrevocable, so it cannot be recalled or repealed
  • will be automatically renewed when it expires
  • is issued by a bank or another financial institution with an office in Ontario
  • permits "partial drawings,” meaning the director can demand and receive payment less than the entire amount mentioned in the letter of credit (this is in case the review of the order is partially successful, and the Board reduces the amount)
  • has no other conditions

If an employer, recruiter or other person wants the director to consider a letter of credit as an acceptable form of payment, despite not meeting these criteria, they can provide to the director in writing any additional details for consideration.

The review process

When a request for a review is received, an officer of the Ontario Labour Relations Board will sometimes schedule a mediation meeting with the parties. (Note that no mediation meeting takes place in the case of a notice of contravention.) If the matter is settled at this meeting, the minutes of the settlement are drawn up and signed off by the parties.

If the matter is not settled, or there has not been an attempt at mediation, a hearing is scheduled. The parties have a right to appear at the hearing, present their information in full and explain why they think the employment standards officer was right or wrong.

The board can amend, overturn or uphold the employment standards officer's order or notice of contravention. The board can also issue a new order.

After reviewing an employment standards officer's refusal to issue an order, the board may issue an order or uphold the officer's refusal.

The board's decisions are final and binding, although an employee, employer, or client of a temporary help agency may apply to Divisional Court for Judicial Review.

Collections

If an employer or client of a temporary help agency does not apply for a review within 30 days of the date the order or Notice of Contravention was served, the order or notice is final and binding. If the employer or client of a temporary help agency has not paid the required amount, the director of Employment Standards forwards the order or notice to a collector.

The director may authorize the collector to collect a reasonable fee and/or costs from the employer or client of a temporary help agency. The fees and costs are added to the amount of the order.

Prosecution (other than by way of a ticket)

An employer or other person who is believed to have committed an offence under the ESA can be prosecuted under Part III of the Provincial Offences Act. It is an offence for an employer or other person to:

  • contravene the ESA or regulations
  • make or keep false records or other documents that must be kept under the ESA
  • provide false or misleading information under the ESA
  • fail to comply with an order, direction or other requirement under the ESA or regulations

If convicted, the employer or other person could be subject to a fine or a term of imprisonment or both. Individuals, if convicted of an offence, can be fined up to $50,000, imprisoned for up to 12 months, or both.

A corporation can be fined up to $100,000 for a first conviction. If the corporation has already been convicted of an offence under the ESA, it can be fined up to $250,000 for a second conviction. For a third or subsequent conviction, the corporation can be fined up to $500,000.

In addition to the imposing a fine or term of imprisonment, a court could also order the convicted person (including a corporation) to take whatever action is necessary to remedy the violation, including paying wages and compensating and/or reinstating an employee.