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Employment - Subjects Table of Contents (A-C)
AGENT
ESA s.1(1) Definitions ["agent"]
APPEALS (FROM CIVIL)
As explained at the main Table of Contents, Ontario employment law can be roughly remedially broken down to into the common law [where remedies are pursued in court], and then the ESA statute [where remedies start out in an administrative system, move up on 'review' (aka 'appeal') to the OLRB tribunal, and then to a court 'judicial review']. This sub-topic is about the common law court appeals.
Employment Cases - Appeals
APPLICATION (ESA)
As used here, the term 'application' refers to when a particular body of written law (here the ESA) applies to a particular situation (eg. 'the employment law relationship in Ontario') or parties (eg. 'employees and employers'). Statutes like the ESA often have 'application' sections to distinguish both their procedural and substantive coverage from that of the courts, where the main Superior Court is the constitutional court of 'inherent' jurisdiction (which can be considered simply as 'everything else').
Application and Exceptions
ESA s.3(1) Where the Act applies
ESA s.3(2-8) Exceptions to Application and Ancillary
ESA s.1(1) Definitions [“business consultant”]
Crown Application and Exemptions
ESA s.3.1 ESA Binds Crown
Reg 285/01 Exemptions, Special Rules and Establishment of Minimum Wage, s.2.1 Exemption for the Crown and Certain Public Bodies
Professional and Other Worker Exemptions (for ESA Parts re: Hours of Work, Three Hour Rule, Overtime, Minimum Wage, Public Holiday, Vacation with Pay)
Reg 285/01 Exemptions, Special Rules and Establishment of Minimum Wage, s.2 Exemptions re Various Parts of Act
Reg 477/18 Non-Application of Act (major junior ice hockey team)
ARBITRATION
The use of 'arbitration', while common in the related employment topic of unionized labour (eg. grievance arbitration), has been uncertain and spotty in the non-unionized employment context. It's potential is clear - ie. an employment contract can have an 'arbitration clause' (or even a separate arbitration contract) which purports to make arbitration mandatory to settle employment disputes - this in an attempt to avoid the jurisdiction of the courts.
To date, the strongest argument against such 'private' arbitration terms is s.5(1) ESA ['No Contracting Out'], which requires that no party "shall contract out of or waive an employment standard and any such contracting out or waiver is void". Under this argument, provisions in a contract that contravene ESA minimum rights render that provision void.
This issue is essentially the same as that with contract-drafting attempts by employers to avoid termination pay duties on wrongful dismissal: see 'Minimum Rights (ESA) - Infringement of ESA Minimum Rights'. The common feature in both issues is whether the contract-drafting 'effort' in any particular employment relationship achieves the employer's goal without breaching the ESA in any related material respect.
Recently, this was held in Wasylyk v. Lyft (Ont Sup Ct, 2024) [at paras 90-133]. In Wasylyk the court found that there was no absolute bar on arbitration in the employment contract context, holding that the arbitration issue turned on the specific terms of the arbitration terms of the employment contract. That is, if the employment contract's arbitration terms contravened the ESA minimum standards in any material respect, then such terms were 'invalid' under Arbitration Act (AA) s.7(2) ['Stay - Exceptions'] - and arbitration was overridden in favour of the civil courts.
When reviewing the below ESA provisions [s.100-101] it seems that the pre-Wasylyk argument that arbitration was wholly barred from non-labour employment was ill-conceived, as these statutory provisions plainly anticipate arbitration in this context. As well, note that the ESA (at s.100 'If arbitrator finds contravention') has already considered and accomodated potential 'arbitration v ESA-order' conflict by allowing arbitrators to "make any order against the employer that an employment standards officer could have made with respect to that contravention but the arbitrator may not issue a notice of contravention": s.100(1).
ESA s.100(1-2,5) Arbitrator Orders; Exception
ESA s.100(3) Limit on Corporate Director Arbitration Order in Collective Agreement
ESA s.100(4) Conditions on Arbitration Orders
ESA s.101(1-8) Arbitration Cannot Rule on 'Common Employer' Issues
ESA s.1(1) Definitions [“arbitrator”]
BENEFIT PLAN
Generally, 'benefits' are any non-cash consideration paid to the employee for their work - including bonuses, profit-sharing, pension plans, life insurance plans, disability insurance plans, disability benefit plans, health insurance plans and similar.
Benefits (Civil)
Employment Cases - Benefits (Civil)
Employment Cases - Bonuses
Employment Cases - Profit-Sharing
Non-Discrimination in Benefit Plans
ESA s.44(1-2) Non-Discrimination in Benefit Plans
Regulation
Reg 286/01 Benefit Plans
Definitions
ESA s.1(1) Definition ['benefit plan"]
ESA s.43 Definition ["employer"] (for benefit plans)
BUILDING SERVICE PROVIDERS (BSPs)
Workers who meet the definition of 'building service providers' (BSPs) [see below] are unique in the sense that they are not generally conveniently-transferrable to other buildings. Normally, when a non-building service corporation changes the location of employee tasks, the workers - having their primary contractual relationship with the corporation - just 'move on' and are re-assigned by their employer to other tasks (or laid-off). But, with a BSP change (for example in the building sale), it is typical for all or most of the parties involved (ie. building owner/leasees/employer/employees) to want to preserve the status quo with the workers still doing the same work at the same site. As such, these special ESA BSP statutory provisions (see below) facilitate this, with BSP workers being granted a status akin to 'tenure' - almost a form of 'property' in the job.
This useful link may be helpful in explaining this unique area of employment law: Bill 7 Is One Of The Least Understood Ontario Laws: CCI-National Resource Centre.
Continuity of Employment
ESA s.10(1-4) Continuity of employment by building services provider
ESA s.75(1-4) New BSP Steps in Shoes of Old BSP for Employment Purposes
ESA s.76(1-2) Vacation Pay and BSP Changes
ESA s.77(1-3)-78(1-2) Information Regarding BSP Employees to be Shared During Transition
Reg 287/01 Building Services Providers
Definitions
ESA s.1(1) Definitions [“building services”]
ESA s.1(1) Definitions [“building services provider”]
CHANGED SUBSTRATUM (Common Law)
The 'changed substratum' doctrine can apply where job duties are increased substantially, but the employer relies of previous wage and other compensation terms. It's analogous to constructive dismissal.
Employment Cases - Changed Substratum
COLLECTION
These ESA provisions address public (ie. by the Director of Employment Standards) collection efforts of ESO orders. Private collection - which is the typical method of administrative order enforcement [under SPPA s.19], is also available by the employee filing administrative orders in the court and then proceeding with court enforcement methods: see Administrative Law - Enforcement.
General
ESA s.126(1-4) Orders May Be Filed in Court by Director of ES
Third Party Demands (Garnishment)
ESA s.125(1-5) Third Party Demands (Garnishment)
ESA s.125.2 Warrants
ESA s.123.3 (1-12) Lien on real property
ESA s.125.1 Security in Lieu of Payment
Collectors
ESA s.127(1-7) Collectors
ESA s.128(1-6) Collector's Powers
ESA s.129(1-5) Settlement by Collector
ESA s.1(1) Definitions [“collector”]
Extra-Jurisdictional Reciprocal Enforcement of Orders
ESA s.130(1-6) Extra-Jurisdictional Reciprocal Enforcement of Orders
Reg 289/01 Penalities and Reciprocal Enforcement, s.2 Reciprocal enforcement of orders
COLLECTIVE AGREEMENTS (ie. 'Labour')
Despite them being used infrequently in a union context, the minimum standards of the ESA still apply to employees under a collective agreement. The below ESA provisions are specific to the labour context.
The website has a separate Labour topic.
Enforcement
ESA s.99(1-6) ESA Enforcement under Collective Agreement; Exception
Settlement
ESA s.6 Trade Union Settlement binding on Employee (Settlement)
Gratuities
ESA s.14.5(1-3) Paramountcy re law governing Pooling/Sharing of Gratuities where Collective Agreement; transition
Definitions
ESA s.1(1) Definition ["labour relations officer"]
ESA s.1(1) Definition ["person"]
ESA s.1(1) Definition ["trade union"]
COMMON EMPLOYERS
'Common employers' are addressed in both common law, and in ESA s.4 ['Separate persons treated as one employer']. I have combined the cases for the time being.
Employment Cases - Common Employers
ESA s.4(1-5) Common Employers & Joint and Several Liability
COMMON LAW, CONTRACTING OUT OF
The common law establishes the key employment right of 'reasonable notice of termination' (or, more often in practice, payment in lieu of such if inadequate notice is given) on wrongful dismissal. Consistent with the general rule about 'contracting out' of the common law [Common Law - Contractual Variance], such efforts will only be respected by the courts if they are unequivocal, clear, express - in other words, held to a quite strict standard.
In practice, these issues are sometimes complicated by the similar statutory rule [ESA s.5(1)] that "no employee or agent of an employee shall contract out of or waive an employment standard", for which the law applies a similar strict excepting standard. See Minimum Rights (ESA) - Infringement of ESA Minimum Rights.
These issues are raised most often in civil court wrongful dismissal cases to determine whether (and how much) pay-in-lieu damages on no-cause termination are available to the employee, but they can become involved where any common law rights are present (eg. contractual duty of good faith).
Employment Cases - Contracting-Out of Common Law Employer Rights
COMPLAINTS
'Complaints' are an interesting (but nascent) growth area of law, present by that name in several regulatory areas [such as medical professional regulation (RHPA), police conduct (CSPA), and irregularly in many others]. Informally though - ie. in contexts other it's use in statutory regimes - the term 'complaints' means a vague process with very low complainant procedure entitlements and high regulatory body discretion. In this age of chronic executive government intrusion into traditional judicial areas, 'complaints' - with their greater government control - may be attractive in growing administrative fields where the government desires more discretionary control (eg. the term is used presently in Canadian HR law, and has been used in past in Ontario HRC law - areas of sometimes profound 'complainant' frustration).
In the ESA regime 'complaints' are used in a fashion more akin to that of an 'application' or a 'claim' - concepts that are similar in that they share commencing of a legal proceeding.
Complaints
ESA s.96(1) Complaints Allowed
ESA s.96(2) Complaint Form Mandatory
Limitations (Complaints)
ESA s.96(3) Limitation on Complaints
ESA s.111(1-3) Order Limitations re ESA Complaints (1/2)
ESA s.114(1-6)-s.115(1-2) Limitations period re orders and notices
CONSTRUCTIVE DISMISSAL
'Constructive dismissal' has been described as "the employer’s intention no longer to be bound by the employment contract" [Morningstar v. WSIAT (Div Ct, 2021)], but not to openly declare the relationship as ended. At root, it's really an effort to make the employee quit voluntarily - to avoid paying out termination entitlements. Typically this occurs in a disguised employer effort to terminate the employment, such as when the employer makes it difficult or impossible for the employee to perform their normal job. There is also another form, that of the 'changed substratum', where the employer increased duties beyond those agreed to [see 'Changed Substratum', above] in an effort to get more work without paying more wages.
Employment Cases - Constructive Dismissal
Employment Cases - Condonement
ESA s.56(1)(b) What constitutes termination (constructive termination) (2/2)
CONTINUITY OF EMPLOYMENT
'Continuity of employment' bears on an employee's tenure, ie. 'how long' they have been working in the job. It can determine an employee's quantum of entitlement to termination pay, severance pay and various benefits such as pensions and bonuses.
'Continuity of employment' arises in situation of business sale, where the general rule [ESA s.9(1)] is that the employee's 'time' with the selling business still counts as 'time' with the purchaser, so that their tenure does not diminish.
Employment Cases - ESA - Continuity of Employment (Through Business Sale)
Employment Cases - Continuity of Employment and Insolvency
ESA s.9(1-4) Continuity of Employment (Through Sale of Business)
CONTRACT, EMPLOYMENT
Like most contracts, employment contracts can be oral, written or implied. Outside the practices of some large individual employers (and perhaps a few high-end employees as well), there is no 'standard form' employment contract.
Employment Cases - Employment Contracts - Interpretation (both Common Law and ESA)
Employment Cases - Employment Contracts - New Contract
ESA s.1(1) Definition ["wages"] (this def'n refers to contracts: "oral or written, express or implied")
COURT EMPLOYEES
Courts of Justice Act, s.76 (Ont) - Direction of court staff
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