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Employment - Subjects Table of Contents (T-Z)Return to N-S
TEMPORARY HELP AGENCIES AND RECRUITERS
In 2021 the ESA was amended to add extensive 'temporary help agencies' (and related 'recruiter') provisions. They impose licensing over these activities and clarify several necessary legal issues to make a (hopefully) functional regime. I am hesitant to makes any long-term predictions over the scheme, as Ontario's history of imposing complex regulation over small-dollar transactions is IMHO dubious (eg. 'real' rent control under the old RRRA, any Consumer Protection Act - even auto sales under the MVDA and more).
Employment Cases - Temporary Help Agencies
Licensing (Temporary Help Agency and Recruiting)
Types of Licences
ESA s.74.1 Types of Licenses
ESA s.74.1.1(1-2) Temporary Help Agency License
ESA s.74.1.2(1-2) Recruiting License
Licence Issuance
ESA s.74.1.3(1-4) Application for Licence from Director of Employment Standards
ESA s.74.1.4 Issuance of Licence
ESA s.74.1.14 Limitations on Further Licence Application
Reg 99/23 Licensing - Temporary Help Agencies and Recruiters
License Terminations
ESA s.74.1.5(1-2) Refusal to issue or renew licence
ESA s.74.1.6(1-2) Revocation or suspension of licence
ESA s.74.1.7(1-4) Notices Required Where Licenses Refused or Revoked
ESA s.74.1.10(1-2) Expiry of Licence Where No Renewal Application
ESA s.74.1.11(1-2) Voluntary cancellation
Licence Terms and Conditions
ESA s.74.1.8 Licence Terms and Conditions
ESA s.74.1.9 Licence not transferable
Reg 398/09 Terms And Conditions Of Employment In Defined Industries — Temporary Help Agency Industry
Exemptions from Application
Reg 285/01 Exemptions, Special Rules and Establishment of Minimum Wage, s.10.1 Exemptions re Temporary Help Agencies
Public Record
ESA s.74.1.12(1-2) Public Record re Licences
Delegation of Authority
ESA s.74.1.15(1-3) Director May Delegate Licensing Powers
OLRB Reviews of Licensing Decisions
Board Review Where Licence Refused or Revocation
ESA s.74.1.13(1-9) Review Where Refusal or Revocation of Licence
ESA s.74.1.13(10) Application of ESA Procedures Re Licensing Reviews (1/2)
Judicial Reviews of OLRB Licensing Reviews
ESA s.74.1.13(10) Judicial Review of Licensing Refusal or Revocation Reviews [via ESA 119(13-14)] (2/2)
Legal Rights and Duties
Legal Basics
ESA s.74.3 Employment Relationship is With Temporary Help Agency
ESA s.74.4(1-4) Work Assignment Defined
Record-Keeping Duties
ESA s.74.4.1(1-3) Agency Record-Keeping Duties
ESA s.74.4.2(1-3) Client Record-Keeping Duties
ESA s.74.4.3(1-3) Recruiter Record-Keeping Duties
Temporary Help Agency Disclosure Duties
ESA s.75.5(1-2) Information Owed By Agency to Client When Hired
ESA s.74.6(1-3) Information Owed By Agency to Assignment Employee When Offering Work
Director of Employment Standards Disclosure Duties
ESA s.74.7(1-5) Director Information Duties
Prohibited Temporary Help Agency Activities
ESA s.74.8(1-4) Prohibited Activities by Agencies
ESA s.74.9(1-4) Contract Provisions Void
ESA s.74.16(1-4) Loss Compensation Orders re Prohibited Agency Activities
Public Holiday Pay Determination for Assignment Employees
ESA s.74.10(1-2) Public Holiday Pay Determination for Assignment Employees
Assignment Termination (Notice or Pay In Lieu)
ESA s.74.10.1(1-5) Assignment Termination (Notice or Pay In Lieu)
Full Termination and Severance (Notice or Pay In Lieu)
ESA s.74.11 Interpretation of Full Termination and Severance Rights For Assignment Employees
ESA s.74.11.1 Transition re 74.11
Reprisals
ESA s.74.12(1-2) Reprisals by Client
ESA s.74.17(1-4) ESO Reprisal Orders Against Clients (re Loss and Reinstatement)
ESA s.74.12.1(1-2) Reprisals by Recruiter
ESA s.74.19(1-3) ESO Reprisal Orders Against Recruiters (re Loss)
Enforcement
ESO Investigative Meetings
ESA s.74.13(1-2) Interpretation of ESO Investigative Meetings Where Assignment Employees
Recovery of Prohibited Fees, Costs and Wages
ESA s.74.14(1-5) Recovery of Prohibited Fees, Administrative Costs and Ancillary Provisions re Wages
ESA s.74.15 Recovery of Prohibited Fees by client
Joint and Several Liability of Agency and Client for Unpaid Wages
ESA s.74.18(1-6) Joint and Several Liability of Agency and Client for Unpaid Wages
Definitions
ESA s.1(1) Definition ["assignment employee"]
ESA s.1(1) Definition ["termination of assignment pay"]
ESA s.1(1) Definition ["client"]
ESA s.1(1) Definition ["temporary help agency"]
ESA s.1(1) Definition ["licence"]
ESA s.1(2) Assignment to perform work includes training
ESA s.74.2 Definition (for Temporary Help Agencies) ['employee']
ESA s.74.2 Definition (for Temporary Help Agencies) ['employer']
ESA s.1(1) Definition ["recruiter"]
TERMINATION (Common Law) (except 'Wrongful Dismissal', see below)
Employment 'termination' is governed under two legal regimes in Ontario: the common law and the ESA. This is a result of the province wanting to ensure that at least the ESA 'minimum standards' are respected. However, if the common law provides the employee with better substantive rights than the ESA, then they will receive those higher rights (an area of law called 'Wrongful Dismissal'). This present sub-topic ['Termination (Common law)'] addresses aspects of common law termination - other than Wrongful Dismissal (which has it's own sub-topic, below).
Types of Termination
Employment Cases - Resignation
Employment Cases - Abandonment of Employment
Fixed-term Contracts
Employment Cases - Fixed-term Contracts
TERMINATION (ESA) (includes ESA Severance Pay)
As is discussed in the 'Forums, Choice of' sub-topic [which see], an aggrieved employee typically faces two (not necessarily mutually exclusive) forums to advance their rights: ie. the ESA complaint system, and the civil courts (Small Claims Court upto $50k; Superior Court over 50k). Generally, ESA (administrative) complaints restrict the employee to the 'minimum standard' rights contained in the ESA, while the civil courts enables them to advance both rights under the common law [which in the case of termination rights (aka 'wrongful dismissal') are generally more generous to the employee] and ESA rights. If the employee wins both the common law and the ESA termination 'damages', the latter will be deducted from the former.
This present sub-topic ['Termination (ESA)'] deals with ESA termination law - which includes the important ESA s.61 termination 'pay-in-lieu of notice' (the ESA corollary of wrongful dismissal), and ESA s.64 'severance pay'. Common law termination is addressed in the 'Wrongful Dismissal' sub-topic, below.
Readers are cautioned that initiating employment termination litigation (either under the ESA admin regime or court) typically requires a working knowledge of both areas of law, since key tactical forum decisions are required right from the start. Making errors at the start will very likely result in prejudice to your rights later on.
Termination
Meaning of Termination
ESA s.56(1) Meaning of Termination (1/2)
Employer Duties on Termination
Employer Duties on Termination
ESA s.54 Notice or Pay-in-Lieu Requirement on Termination
ESA s.55 Exceptions to Notice or Pay-in-Lieu Requirement on Termination
Reg 288/01 Termination and Severance of Employment (Notice Exemptions) (contains exceptions) (1/4)
Termination Notices
ESA s.57 Termination Notice Periods
ESA s.58(1-7) Notice Where 50 or Over Employees Terminated
Reg 288/01 Termination and Severance of Employment (Notice Exemptions) (contains exceptions) (2/4)
ESA 'Wilfulness' Terminations
Employment Cases - ESA 'Wilfulness' Terminations
Ancillary Termination Duties
ESA s.59(1-2) Calculation of Duration of Employment
ESA s.60(1-4) Employer Duties During Running of Notice Period
ESA s.62(1-3) Benefit Entitlement Where Inadequate Notice
Definitions
ESA s.1(1) Definition ["statutory notice period"]
ESA s.53.2 Meaning of "establishment" for Part XV (Termination and Severance of Employment); Exceptions
Severance and Severance Pay
Severance pay is a distinct employee right, separate from 'termination pay' (considered immediately above). While 'termination pay' can be assessed under both the ESA and the common law, 'severance pay' is wholly an ESA statutory right - ie. there is no 'common law' severance.
Readers are cautioned though that phraseology (terms) in this area of law can be used loosely. Some employment law material that you will see on the internet (and sometimes in contracts) will use the terms 'termination', 'severance' - and even wrongful dismissal - interchangeably, which confuses the specific meaning that the term 'severance' has in the ESA. I strive to use the terms accurately.
As is the case with termination pay, an employee cannot 'double-collect' severance pay and wrongful dismissal awards. When an employee sues in court for both termination pay (ie. wrongful dismissal) and ESA severance pay [usually as an 'alternative' (back-up) pleading], and the employee is successful in their wrongful dismissal claim - then any severance already paid (or due) will be deducted from the wrongful dismissal award: Stevens v Globe and Mail (Ont CA, 1996).
General
Employment Cases - Severance Pay
Types of Severance
ESA s.63(1) Types of Severance
ESA s.63(2-2.4) Severance by Lay-off [see LAY-OFFS as well]
ESA s.63(3) Severance and Resignation
Severance Pay
ESA s.64(1-4) Circumstances Where Severance Pay Payable; Exception
Reg 288/01 Termination and Severance of Employment (Notice Exemptions) (contains exceptions) (4/4)
ESA s.65(1-8) Calculating Severance Pay
ESA s.66(1-3) Severance Pay by Instalments
ESA s.66.1(1-11) Extended lay-off
Payment of Final Wages
ESA s.11(5) Wage payment on termination
ESA s.32 Banked Holidays Paid Out on Termination
ESA s.12.1 Statement re wages on termination
TRUST MONIES
ESA s.109(1-3) Payout of Trust Monies
ESA s.88(7-8) Payment of Trust Monies (Other)
VACATION
Duration and Allocation of Vacation
ESA s.33(1-4) Amount of Vacation
ESA s.35 Timing of vacation
Alternative Vacation Entitlement Year (AVEY)
ESA s.34(1-5) AVEY and Stub Periods
ESA s.35.1(1-2) Timing of Vacation (AVEY)
Other
ESA s.41(1-2) Foregoing Vacation, but not Vacation Pay (1/2)
ESA s.41.1(1-5) Vacation Statements
Definitions
ESA s.1(1) Definition ["alternative vacation entitlement year"]
ESA s.1(1) Definition ["vacation entitlement year"]
ESA s.1(1) Definition ["standard vacation entitlement year"]
ESA s.1(1) Definition ["stub period"]
VACATION PAY
General
Employment Cases - ESA - Vacation Pay
Rates of Vacation Pay
ESA s.35.2 Rates of Vacation Pay
Timing of Vacation Pay
ESA s.36(1-4) Timing of Payment of Vacation Pay
ESA s.37(1-2) Payment of vacation pay during labour dispute
ESA s.39 Exceptions from Timing Rules for Some Trade Unions
Other
ESA s.41(1-2) Foregoing Vacation, but not Vacation Pay (2/2)
ESA s.40(1-2) Vacation Pay Held in Trust; Lien
ESA s.38 Vacation pay payment on termination
WAGES
General
ESA s.1(1) Definition ["wages"]
ESA s.11(1-4) Wage Payment Methods
Three-Hour Rule
ESA s.21.2(1-2) Three Hour Rule
Reg 285/01 Exemptions, Special Rules and Establishment of Minimum Wage, s.4.1 Exemptions re Three Hour Rule
Reg 285/01 Exemptions, Special Rules and Establishment of Minimum Wage, s.1 Definitions ["wilderness guide"]
Deductions from Wages
ESA s.13(1-6) Deductions from Wages
Reg 285/01 Exemptions, Special Rules and Establishment of Minimum Wage, s.3.1 Exemption re Certain Deductions, etc.
Wage Statements
ESA s.12(1-3) Wage Statements
Limitations
ESA s.111(1-3) Order Limitations re ESA Complaints (2/2)
Enforcement
ESA s.14(1-2) Priority of Claims
Definitions
ESA s.1(1) Definition ["regular rate"]
ESA s.1(1) Definition ["regular wages"]
ESA s.1(1) Definition ["regular work day"]
ESA s.1(1) Definition ["regular work week"]
ESA s.1(1) Definition ["work week"]
WRONGFUL DISMISSAL
As is discussed in the 'Forums, Choice of' sub-topic [which see], an aggrieved employee typically faces two (not necessarily mutually exclusive) forums to advance their rights: ie. the ESA complaint system, and civil court. Generally, ESA (administrative) complaints restrict one to the 'minimum standard' rights contained in the ESA, while civil court enables one to advance both rights under the common law - which in the case of termination rights (aka wrongful dismissal) are generally more generous to the employee - and ESA rights (typically as an alternative pleading).
Wrongful dismissal means termination without either: adequate notice of termination being given by the employer, or 'just cause' (ie. generally, sufficiently inappropriate behaviour by the employee). This present sub-topic ['Wrongful Dismissal'] deals with common law termination rights. ESA termination is addressed in the 'Termination (ESA)' sub-topic, above.
Readers are cautioned that initiating employment termination litigation (either under the ESA admin regime or court) typically requires a working knowledge of both areas of law, since key tactical forum decisions are required right from the start. Making errors at the start will very likely result in prejudice to your rights later on.
General
Employment Cases - Wrongful Dismissal - General
Just Cause
Employment Cases - Wrongful Dismissal - Just Cause
Wrongful Dismissal Remedies
Notice Period Damages
Employment Cases - Wrongful Dismissal - Remedy - Implied Term of Reasonable Notice of Termination
Employment Cases - Wrongful Dismissal - Remedy - Notice Period Damages - Bardal
Employment Cases - Wrongful Dismissal - Remedy - Notice Period Damages - Matthews
Employment Cases - Wrongful Dismissal - Remedy - Notice Period Damages - Pregnancy
Termination Pay in Lieu of Notice
ESA s.61(1-2) Termination Pay in Lieu of Notice
Reg 288/01 Termination and Severance of Employment (Notice Exemptions) (contains exceptions) (3/4)
'Extra' Damages
Employment Cases - Wrongful Dismissal - Remedy - 'Exceptional Circumstances'
Employment Cases - Wrongful Dismissal - Remedy - Punitive Damages
Employment Cases - Wrongful Dismissal - Remedy - Aggravated Damages
Mitigation
Employment Cases - Wrongful Dismissal - Remedy - Mitigation
Where ESA Termination Rights Infringed by Contract
Where aspects of an employment contract infringe ESA minimum rights (ie. provide for less rights than ESA standards), ESA s.5(1) can void those aspects - effectively resurrecting the common law, which can often be more beneficial than the ESA. While this can occur in several ways, the bulk of these situations are wrongful dismissals where employers try to draft contracts to limit pay-in-lieu 'damages' to less than the ESA standard. Employers often fail in this attempt, commonly because the ESA test for wrongful dismissal is harder to meet than the common law test - ie. the ESA test includes a "wilful misconduct, disobedience or wilful neglect of duty" requirement [Reg 288/01, s.2(1)].
For these cases see the 'Minimum Rights (ESA) - Infringement of ESA Minimum Rights' sub-topic.
Costs
Employment Cases - Wrongful Dismissal - Costs
TRANSITION (ESA)
ESA s.142(1) Transition
FEDERAL
The central focus of this 'Employment' topic employment law relationships are provincially-governed, non-unionized employment relationships. And - while the common law of employment is the same to both Ontario and Canadian law - federal statutory law differs entirely from that addressed in the bulk of this topic (particularly the ESA).
So, while it certainly does exist, federal employment law is largely an afterthought - being restricted to those fields of activity that Canada has constitutional jurisdiction over (eg. airlines, railways, fisheries, telecommunications etc). Further, most of this is governmental - and unionized. As this Employment topic does not address labour (ie. unionized) employees [see the 'Labour' Topic], this leaves an odd mismatch of federal employment contracts governed mostly by the Canada Labour Code - some private, and some (very few) governmental - which are even further largely codified.
The material in the below links cannot reflect this complex reality, and can best be described as a cumulation of anything federal, non-union and private that I find. Anything federal, non-union and governmental is located in the 'Labour' topic, pending further coherent organization.
Employment - Federal - General
Employment - Federal - MNR Determines Employment Status
Employment - Federal - Public Service
ESA s.94 Canada Labour Code Powers Authorized
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