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Employment - Subjects Table of Contents (A-F)
GENERAL [no content yet]
AGENT
ESA s.1(1) Definitions ["agent"]
APPEALS (FROM CIVIL)
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 recognized procedure (eg. "the general rules of court apply to class proceedings") or parties (eg. "the general rules of court apply to class representatives").
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
ESA s.100(1-2,5) Arbitrator Orders; Exception
ESA s.100(4) Conditions on Arbitration Orders
ESA s.101(1-8) Arbitration Cannot Rule on and Common Employer Issues
ESA s.1(1) Definitions [“arbitrator”]
BENEFIT PLAN
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. This special ESA BSP law facilitates 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”]
CANADA LABOUR CODE
ESA s.94 Canada Labour Code Powers Authorized
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.
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, is also available by the employee filing administrative orders in the court and then proceeding with court enforcement methods: see Administrative Law - Enforcement.
Collection Procedures
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
Enforcement
ESA s.99(1-6) ESA Enforcement under Collective Agreement; Exception
ESA s.100(3) Limit on Corporate Director Arbitration Order in Collective Agreement
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
Employment Cases - Common Employers
[there are both common law 'common employer' doctrines, and under ESA s.4]
ESA s.4(1-5) Common Employers & Joint and Several Liability
COMMON LAW
Contracting Out of Common Law Employment Rights
This issue addresses when an employment contract (and facts) can 'contract-out' of employees' common law employment rights. This most often raised in civil court wrongful dismissal cases to determine whether pay-in-lieu damages on no-cause termination are available to the employee.
Employment Cases - Contracting-Out of Common Law Employer Rights
COMPLAINTS
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 (Common Law)
'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)]. 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
Employment Cases - ESA - Continuity of Employment (Through Business Sale)
Employment Cases - Continuity of Employment and Insolvency
CONTRACT, EMPLOYMENT
Interpretation
Employment Cases - Employment Contracts - Interpretation (both Common Law and ESA)
Employment Cases - New Contract
COURT EMPLOYEES
|||Direction of court staff [Courts of Justice Act, s.76 (Ont)]
DAMAGES
The bulk of employment-themed damage law occurs in common law wrongful dismissal civil actions. See: Wrongful Dismissal.
DEPENDENT CONTRACTOR
Employment Cases - Dependent Contractor
DIRECTOR OF EMPLOYMENT STANDARDS
ESA s.85(1-3) Director of Employment Standards
ESA s.88(1,4) Powers and Duties of Director
ESA s.88(2) Director May Make Policy (1/2)
ESA s.88(3) Director May Authorize Employment Standards Officers (ESOs) (1/2)
ESA s.88(9) No Hearing Required for Director Decision
ESA s.1(1) Definitions [“Director”]
DIRECTOR (CORPORATE) LIABILITY FOR WAGES
These provisions relate to situations where corporate directors can be held personally liable for ESA orders.
ESA Provisions
Director's Liability for Wages
ESA s.79 Definition (Director Liability) ["director"]
ESA s.81(1-10) Corporate Directors Jointly and Severally Liable for Wages; Exceptions
ESA s.80(1-4) More Exceptions to Director Liability Rules
ESA s.83 Civil Remedy Against Director Not Affected by this Part (1/2)
No Waiver and Indemnification from Director Liability for Wages
These are 'no-contracting out' provisions, meant to prevent corporations from protecting corporate directors from ESA employee protections.
ESA s.82(1-2) No Waiving of Director from Liability for Wages; Director Indemnification Allowed
ESA s.83 Civil Remedy Against Director Not Affected by this Part (2/2)
OBCA Provisions
Employment Cases - OBCA Director's Liability for Unpaid Wages
BCA s.131 Directors’ liability to employees for wages
DURATION OF EMPLOYMENT
ESA s.9(1-4) Continuity of Employment (Through Sale of Business)
DUTY OF GOOD FAITH
The 'duty of good faith' is an over-arching term for a growing collection of relatively new contractual duties (such as the 'duty of honesty'). It can apply to employment contracts as well.
Employment Cases - Duty of Good Faith
ELECTRONIC MONITORING
ESA s.41.1.1(1-8) Electronic Monitoring (Written Policy and ESA Complaints)
ELECTRONIC WORK CONNECTION
ESA s.21.1.2(1-4) Policy Regarding Disconnecting From Electronic Work Connection
ESA s.21.1.1 Definition [“Disconnecting from work”]
EMPLOYEE
Defining Employees
ESA s.1(1) Definition [“employee”]
ESA s.1(2.1) Definition re Training (Training includes trial periods)
Reg 285/01 Exemptions, Special Rules and Establishment of Minimum Wage, s.1.1 When Work Deemed to be Performed
Other
ESA s.5.1(1) No treating as if not employee (General Offence by Employer)
ESA s.7 Employee's Agent
EMPLOYER
ESA s.1(1) Definition ["employer"]
ESA s.1(1) Definition ["establishment"]
EMPLOYER ASSOCIATIONS
Employment Cases - Employer Associations
ESA
ESA s.1(3-4) Agreements in writing
ESA s.1(1) Definitions["employment contract"]
EMPLOYMENT STANDARDS
ESA s.1(1) Definitions ["employment standard"]
EMPLOYMENT STANDARDS ACT, 2000
Employment Cases - ESA - Interpretation
EMPLOYMENT STANDARD OFFICERS (ESOs)
Employment Standards Officers (ESOs) are 'first-line' ESA officials, having basic 'carriage' of complaints.
ESA s.86(1-2) ESO Appointments
ESA s.88(3) Director May Authorize ESOs re Director Powers (2/2)
ESA s.89(3) No Hearing Required for ESO Decision
ESA s.89(1-2) ESO Powers and Duties
EQUAL PAY FOR EQUAL WORK
ESA s.41.2-42(1-5) Equal Pay for Equal Work
EVIDENCE (ESA)
Below are express ESA statutory provisions regarding evidence. Much more relevant evidence law is located in Administrative Law - Evidence and Evidence.
ESA s.90(1-2) ESO Evidence in Civil Litigation
ESA s.91(10) ESO-Certified Copies in Evidence (2/2)
ESA s.140(1-5) Official Document Evidence
FEDERAL
Employment - Federal - MNR Determines Employment Status
Employment - Federal - Public Service
FOREIGN NATIONAL
There is separate legislation [the Employment Protection for Foreign Nationals Act, 2009 (EPFNA)] regarding 'foreign nationals'. This law is addressed by the Ontario government in the EPFNA, 2009 Policy and Interpretation Manual, located in the larger Employment Standards Act Policy and Interpretation Manual. I have not yet integrated the EPFNA into this website.
ESA s.1(1) Definition ["foreign national"]
FORUM, CHOICE OF (ONTARIO)
COMMENT
Ontario employment law can allow an aggrieved party (almost always an 'employee') a choice between remedial forums, that is between (a) the Court system (Small Claims Court up to $50,000; Superior Courts for more), and (b) the administrative Employment Standards Officer (ESO) regime [with next-stage OLRB tribunal 'appeals' (properly: s.116 'reviews').
While in uncommon situations (see 'Choosing Both', below), disputes within one employment relationship can be 'split' over both different forums (ie. court and administrative) in separate proceedings - if they can justify separate claims for (1) unpaid wages and/or ESA benefit rights (on the one hand) - and (2) termination entitlements (or the other).
However this is unusual. In the vast majority of cases, the prospective employee-litigant need only focus on the main practical factors in deciding 'either/or' between the two forums. These factors are: (a) a considered total estimate of total monetary recovery in light of the potentially several claims that you have (primarily termination pay-in-lieu and benefits, but there can be more), and (b) the time limitations that govern your situation.
On the first of these (monetary recovery), in the typical 'wrongful dismissal' context the law will almost always favour the court forum with it's more generous common law entitlements. If in doubt (and even without this wrongful dismissal pay-in-lieu advantage), as a general rule aggrieved employees are usually better served by pursuing their rights in the courts, with it's one-stop procedure and general two-year limitation period. This is in contrast to the procedurally-atomized ESO complaint procedures, and the several confusing (not to mention shorter and over-lapping) ESO complaint limitation periods. The best argument for preferring the ESO complaint administrative system over the courts is that of 'ease of effort', but - IMHO - the employee can risk much in the hope of reduced stress and effort.
Forum Jurisdictions
Employment - Forum - Court Jurisdiction
ESA s.8(1) Civil proceedings unaffected
Procedures
Notice to ESA Director Where Employee Sues in Court
ESA s.8(2-5) Notice to ESA Director When Employee Suing
Exception Where Lawsuit May Be Commenced
ESA s.97(4) Exception Allowing Suing Where Complaint Withdrawn in Two Weeks
'Choosing Both'
The separate 'choices' between court and the ESA administrative regime are explained below in these complementary s.97 and 98 provisions. As explained above, usually the employee-litigant will not need to decide to 'split' their case across the two forums, but to decide 'either/or' for all their claims.
Unpaid Wages and Benefits
ESA s.97(1) ESA Complaint re Unpaid Wages and/or ESA Benefit Rights Bars Civil Proceeding
ESA s.98(1) Civil Proceeding Bars Complaint Regarding Wage or Benefit Claims
Termination Entitlements
ESA s.97(2) ESA Complaint re Termination and Severance Pay Bars Civil Proceeding
ESA s.98(2) Civil Proceeding for Wrongful Dismissal Bars Complaint Regarding Termination or Severance Pay
FRUSTRATION
Employment Cases - Frustration
ESA s.56(1)(a) What constitutes termination (encompasses frustration)
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