Filing an employment standards claim
On November 27, 2017, the Fair Workplaces, Better Jobs Act became law, resulting in a number of changes to the Employment Standards Act (ESA). This Guide will be updated as the new rules come into force. Read a complete summary of the changes to the ESA.
Most employees covered under the Employment Standards Act, 2000 (ESA) may file a claim with the Ministry of Labour if they believe their employer is not complying with the law.
Employees can phone the Employment Standards Information Centre for assistance in identifying and defining issues under the ESA and the Employment Protection for Foreign Nationals Act, 2009 (EPFNA), and finding ways to resolve them at:
Please note, the Employment Protection for Foreign Nationals Act, 2009 is a different law from the Employment Standards Act, 2000.
When an employee cannot file a claim
There are two situations in which an employee who is covered by the ESA cannot file a claim with the Ministry of Labour:
When an employee is represented by a trade union
Generally speaking, employees represented by a union cannot file a claim. These employees—if they are covered by a collective agreement and whether or not they are actually members of the union—must use the grievance procedure contained in the collective agreement between the employer and the trade union.
When an employee has filed a claim in a court of law
An employee cannot file a claim with the Ministry of Labour for a failure to pay wages or discrimination in benefit plans if the employee has already started a court action against the employer for the same matter.
In addition, an employee who has started a court action for wrongful dismissal cannot file a claim for termination or severance pay under the ESA with respect to the same termination/severance of employment.
An employee with questions about whether it is best to file a claim or to sue the employer in court may wish to consult a lawyer before filing a claim.
Employees also need to be aware that if they have filed a claim with the Ministry of Labour for unpaid wages, benefits, or termination or severance pay that he or she must withdraw the claim within two weeks of the date of filing it with the Ministry if the employee intends to start a court action with respect to those unpaid wages, benefits, or alleged wrongful dismissal.
Note that the restrictions on pursuing a claim through both the courts and with the Ministry of Labour do not apply to claims filed with the Ministry of Labour for compensation or reinstatement (for example, where a claim is filed for a violation of the pregnancy, parental, emergency, family medical leave, or reprisal provisions of the ESA).
Filing a claim
Employees can get a copy of the employment standards claim form from the Ministry of Labour’s website, or:
- by mail through ServiceOntario Publications; or
- in person at select ServiceOntario Centres (
Employees should contact their employer about their ESA issue(s) before filing a claim. Issues can often be resolved quickly with this approach.
This step may not apply to everyone. For more information on reasons why employees may not need to contact their employers, please see "Reasons employees may not have to contact their employer" later in this chapter.
Employees are encouraged to collect important documents about their work histories before completing the claim form. Having these documents close at hand helps claimants fill out the claim form, however the claimant does not have to have these documents in order to file a claim.
The Claim Form asks the claimant to give a lot of detailed information. It may take an hour or more to complete it. It is important to read the important information contained in the Before you start booklet before completing the claim form.
The basic information the ministry requires is marked by asterisks (*). Missing information may cause a delay in processing a claim.
If the claimant does not know the answer to a question marked with an asterisk, they must record "unknown." If the question does not apply to the claimant’s situation, they must record "not applicable" or "n/a".
Providing complete and accurate information for all other fields ensures that the claim will be processed in a timely manner.
The Ministry of Labour will try to contact the claimant if certain information is missing.
It is recommended that an employee file his or her claim online. He or she will receive a claim number immediately.
Employees may also file a claim:
By mail to:
Provincial Claims Centre
Ministry of Labour
70 Foster Drive, Suite 410
Roberta Bondar Place
Sault Ste. Marie, ON
Note: If an employee files a claim by fax, in person, or by mail, he or she will receive a letter in the mail with the claim number. If the claim is missing required information, the employee will receive a request to provide the information.
A claim should only be filed once. For example, if an employee filed his or her claim online, the employee should not send another copy of the Claim Form to the Ministry of Labour.
If you are concerned about an Employment Protection for Foreign Nationals Act, 2009 violation, you must file an EPFNA claim using the correct claim form. You can access an EPFNA claim form on the Ministry of Labour’s website.
Reasons employees may not have to contact their employer
Employees are encouraged to contact their employer about their employment standards issue before filing a claim. The following are examples of situations where employees may prefer not to contact their employers:
- The employee already tried to contact his or her employer.
- The workplace has closed down.
- The employer has gone bankrupt.
- The employee is afraid to do so.
- The issue does not involve money.
- The employee is or was working as a live-in caregiver.
- The employee has difficulty communicating in the language spoken by his or her employer.
- The employee is a young worker.
- The employee has a disability that prevents or makes it difficult to contact his or her employer.
- The reason is related to a ground under the Ontario Human Rights Code.
If none of the reasons listed above describe the employee’s situation and he or she still feels that there is a good reason not to contact the employer about the issue, the employee will have an opportunity to provide an explanation on the Claim Form.
Investigation, enforcement and appeals
Once a claim has been filed, it is reviewed to ensure that all the required information has been provided. If the Claim Form includes all required information, the claim is assigned to an employment standards officer for investigation. If the claim is missing required information, the employee will be contacted by the ministry and asked to provide the information within a specified period of time.
During the investigation of a claim, the employee will be asked to provide some or all of the following:
- Copies of pay stubs or paycheques
- Copies of T4 slips
- A copy of his or her written notice of termination (if the employee’s employment was terminated and/or severed by the employer and written notice was given)
- A copy of the employee’s Record of Employment, if received
- A copy of the written contract of employment, if there is one
- Copies of any warning letters or notices received
- A record of the hours worked if available (e.g., a calendar record, time sheets, attendance records, diary or notes)
The documents must be provided in the time period set out by the employment standards officer.
Please refer to the chapter entitled "Role of the Ministry of Labour" for information on topics such as:
- how an investigation is conducted;
- the kinds of actions an employment standards officer or the ministry may take; and
- how an employee may appeal an officer’s decision.
Maximum amount of wages an employer can be ordered to pay
A $10,000 cap applies when an employment standards officer is issuing an order in respect of a single employee for any unpaid wages that came due prior to February 20, 2015. Because of changes made to the ESA that came into force on February 20, 2015, an order issued by an employment standards officer for unpaid wages that came due on or after that date, is not subject to any cap. There is also no cap on orders for compensation issued when an employment standards officer finds a violation under those parts of the ESA for which compensation and/or reinstatement can be ordered (for example, parts dealing with leaves of absence, the right of an employee not to be penalized for exercising his or her rights under the ESA, such as a retail employee’s right to refuse to work a public holiday).
Time limits regarding claims
There are different time limits on the Ministry’s ability to enforce the recovery of unpaid wages owed to an employee. Which limits apply will depend on when the unpaid wages came due.
When wages are due
Generally, wages, except vacation pay, become due on the employee’s regular pay day. However, if the employment relationship ends, all of the wages owed to the employee (including any unpaid vacation pay as of the date the employment relationship ended) are due either within seven days of that date, or on what would have been the employee’s next regular pay day, whichever is later.
Six-month/12 months limitations on recovery: where the unpaid wages came due prior to February 20, 2015
With two exceptions, an employment standards officer can only issue an order for unpaid wages that came due prior to February 20, 2015 if a claim was filed within six months of the date those wages came due:
- the first exception to this rule deals with vacation pay. Unpaid vacation pay may be recovered if the claim is filed within 12 months of the date the vacation pay came due (rather than 6 months).
- the second exception is where an employment standards officer finds that an employer has violated the same section of the ESA more than once, with respect to an employee. If at least one of the violations occurred in the six-month period before the claim was filed, the employee will be entitled to recover the wages due for all violations of the same provision that occurred in the 12-month period before the claim was filed.
Example: a typical case
Nhan was employed as a technician for just over three years. His employment was terminated because of a shortage of work on February 1, 2014. His next regular pay day would have fallen on February 12, 2014. Nhan was given proper notice of his termination but was not paid his last week’s wages. On August 30, 2014 he filed a claim for those wages. An employment standards officer will investigate Nhan’s claim. However, the officer will not be able to issue an order to the employer to recover Nhan’s wages because those wages became due more than six months before the date he filed his claim.
Example: when there are repeated violations
Jenny was employed in a restaurant for just over one year and was never paid for public holidays. She quit her job and filed a claim with the Ministry on January 5, 2014. In the six months before her complaint was filed, Jenny should have been paid public holiday pay for Labour Day, Thanksgiving Day, Christmas Day, December 26 (Boxing Day) and New Year’s Day.
The employer repeatedly violated the public holiday sections of the ESA by not paying Jenny public holiday pay. Because at least one violation of the public holiday provisions occurred within six months of the date Jenny filed her claim, the Ministry’s ability to enforce the recovery of unpaid wages is not limited to recovering the wages that came due in the six-month period before the date her claim was filed (January 5, 2014). It will be extended to allow the recovery of any unpaid public holiday pay that came due to Jenny in the 12 months before she filed her claim. As a result, an employment standards officer can issue an order to pay against Jenny’s employer for public holiday pay not only for Labour Day, Thanksgiving Day, Christmas Day, December 26 (Boxing Day) and New Year’s Day, but also for Canada Day, Victoria Day, Good Friday and Family Day.
Two year limit on recovery: where the unpaid wages came due on or after February 20, 2015
An employment standards officer can issue an order for unpaid wages, including vacation pay that came due on or after February 20, 2015, if the employee has filed a claim within two years of the date such wages came due.
Example: when there are unpaid wages that came due prior to February 20, 2015 AND unpaid wages that came due on or after February 20, 2015
Egan was hired on June 1, 2013 to work at a warehouse. He was never paid overtime even though he regularly worked more than 44 hours a week. He had taken a single two-week vacation with pay just after completing his first year of employment but had neither taken vacation nor been paid vacation pay since that time. Egan resigned on June 1, 2016 and two months later, (August 1, 2016) he filed a claim with the Ministry of Labour.
The officer determined that Egan was owed $500 in overtime pay that had come due prior to February 20, 2015 as well as $750 in overtime pay that had come due on or after that date. He was also entitled to vacation pay, $2,000 earned between June 1, 2014 to May 30, 2015 (due under the ESA on March 15, 2016) and $2,200 in vacation pay earned between June 1, 2015 and May 30, 2016 which came due two weeks after he resigned his employment (the first regularly scheduled pay day after his employment ended).
Recoverability of wages due prior to February 20, 2015
The officer determined that the $500 in unpaid overtime pay that came due prior to February 20, 2015 was not recoverable because none of it had come due within the six month period prior to the date the claim was filed.
Recoverability of the wages due on or after February 20, 2015
The $750 in unpaid overtime pay and the unpaid vacation pay ($2,000 + $2,200) that came due on or after February 20, 2015 was all recoverable because Egan filed his claim less than two years after those wages came due. The officer therefore issued an order in the amount of $4,950.
Two-year time limit for filing a claim
Under the ESA, generally employees must file a claim within two years of the contravention in order for the claim to be investigated by an employment standards officer.
The above-mentioned six-month/12-month/two year limitations on recovery apply only to an employment standards officer’s ability to issue an order for unpaid wages, including vacation pay, termination pay and severance pay. In the case of other violations, (e.g. non-monetary or contraventions related to reprisals or leave entitlements under the Act) an employment standards officer is able to issue certain orders (compliance orders, orders for compensation (i.e. not wages) and reinstatement orders for up to two years after a violation has occurred). This two-year time limit applies where:
- the employee believes an employer has violated a non-monetary section of the ESA for example, the employer did not give proper meal breaks, failed to provide wage statements;
- the employee is seeking compensation and/or reinstatement in cases where the ESA leaves of absence, lie detector or retail business employee provisions have been violated or where the employer has penalized or threatened to penalize an employee for exercising rights under the ESA. See “Reprisals” and “Reprisals by a client of a temporary help agency.”
Extending time limits
Despite the limitations on recovery of wages and filing a claim, it may be possible to make a claim that would otherwise be outside the applicable time limit if:
- an employee has been told by the employer that he or she does not have an an entitlement when the employer knew or could have taken steps to find out that the employee in fact does have an entitlement; and
- the employer’s untrue statement was the cause of the employee’s delay in filing his or her claim.
An employer tells John-Duncan, who is not at all familiar with the ESA, that no overtime is payable under the ESA to an employee in his circumstances, even though the employer knew or could have taken steps to find out that overtime pay in fact was payable in those circumstances. Because John-Duncan believes the employer, he does not file a claim for overtime pay. Later, after the time for filing a claim has passed, John-Duncan finds out from his friends that overtime pay was payable in his circumstances. In such a case, an employment standards officer might rule that the time limit that would otherwise not allow John-Duncan’s claim should be extended because the delay in filing the claim was caused by the untruthful statement of the employer about his ESA entitlements and because that was the cause of his not having filed her claim within the normal time limit.