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Employment Law (Ontario)
(01 January 2016)

Chapter 2 - Advocacy

  1. Employee Advocacy
    (a) Overview
    (b) Split Jurisdictions and Res Judicata
    (c) Cost-Benefit Assessment
    . Overview
    . Collateral Benefits Deducted
    . Legal Fees
    . Income Tax
    . Likelihood of Actual Recovery
    (d) Fear of Retaliation and Litigation Anxiety
    (e) Comment
  2. Choosing Between Enforcement Procedures
    (a) Overview
    (b) The "Election"
    (c) Notice Requirement Where Suing for Any ESA Entitlement
    (d) Comparing Remedial Jurisdictions
    (e) Comparing Limitation Periods
    (f) The Election and Unpaid, Termination and Severance Wage Claims
    (g) The Election and Benefit Plan Claims
    (h) Splitting Claims Between the ESA Complaint Process and the Courts
  3. Evidence
    (a) Overview
    (b) Employee Logs
    (c) Other Evidence
    . Federal Record of Employment
    . ESA-Mandated Employer Records
    (d) Evidence Rules Re ESA and OLRB Staff
    . Overview
    . Concepts Explained
    . Prohibitions on ESO Evidence
    . Prohibitions on OLRB Staff Evidence
    . Use of Freedom of Information Requests
  4. Settlement
________________________________________


1. Employee Advocacy

(a) Overview

Legal advocacy for employees is fraught with a variety of practical and procedural barriers and challenges, making it difficult to advance many cases in an efficient and affordable way.

In this chapter I attempt to set out the primary tactical choices and issues that face an employee trying to enforce their rights. Other tactical comments are located throughout this Employment Law (Ontario) Guide, as they arise in relation to the topics being discussed.

I start this introductory section by identifying and explaining key legal and tactical themes that are considered in the balance of the chapter, as follows.

(b) Split Jurisdictions and Res Judicata

In my view, the largest challenge faced by Ontario employees in advancing their legal rights is the extreme jurisdictional 'splitting' that characterizes Ontario and Canadian employment law - both in terms of remedies and substantive rights. This problem is particularly acute respecting terminations, that most common employment law issue.

The otherwise straightforward legal event of an employment termination has the potential to invoke any (or all) of the following legal processes (and there are probably more):
  • a common law wrongful dismissal lawsuit;
  • an Employment Standards Act (ESA) claim;
  • an Employment Insurance (EI)claim;
  • a Long or Short-term Disability Claim (STD/LTD);
  • a WSIB (Workers Safety and Insurance Board) claim;
  • a Human Rights Code (HRC) complaint;
  • a welfare (Ontario Works) claim;
  • OLRB (Ontario Labour Relations Board union law.
This multitude of legal processes invites a legal problem known as "res judicata" (already adjudicated; aka "issue estoppel" or "cause-of-action estoppel"). Res judicata considerations arise whenever a common legal issue must be decided within two or more of different legal processes.

The principle of res judicata - when it applies - holds that when a legal issue is decided in one legal forum, then that decision is binding in all future legal situations involving the same parties.

For example, the issue of "just cause" for termination is relevant to all of the following legal areas: wrongful dismissal, any ESA claim for pay-in-lieu of inadequate notice, employment insurance (EI), HRC and welfare. Let's say (as is commonly the case), that the first administrative decision on this issue is made as a result of an EI claim, and is in favour of the applicant employee. Let's say further that the employer appeals this to the EI Board of Referees and loses, thus affirming the finding against the existence of "just cause".

Of course the employer can continue up the EI appeal 'chain' as long as they want to contest the issue (failing which they risk having the most recent negative decision thrown back at them with the argument: "well, you accepted their ruling without fighting it, so you can't complain now"). But once the issue is finally resolved in the 'first' legal system then the legal finding becomes notionally 'transferable' to all other legal situations where the issue might arise: ie. ESA termination and severance claims, wrongful dismissal lawsuits, welfare, human rights tribunals, etc.

The advantage for all concerned is plain. Absent res judicata the parties might end up fighting the same legal issue in multiple forums - thus greatly increasing expense, effort and uncertainty. Further, absent res judicata they might even face the legal absurdity of inconsistent rulings amongst different tribunals. EI might say no to "just cause" (and grant benefits), a court might hold that there was just cause (and dismiss an employee lawsuit), while employment standards authorities (ESA) might agree with EI - and so the possibilities multiply across the various legal systems involved.

Sadly, no robust or consistent application of the res judicata doctrine has been made in the employment law context in Ontario, with the result being that this inefficient, wasteful and expensive situation is the one actually faced by a newly terminated employee. In my opinion blame for this is shared in roughly equal proportions by the courts and tribunals (in not openly acknowledging and accomodating for this situation in their decisions), the federal and provincial legislatures (in not passing consistent key legal definitions) and the employer 'defence' bar (all too eager to exhaust the usually-meager legal resources of the newly terminated employee).

The res judicata problem, including some relevant employment case law on the issue, is discussed in greater length in the Isthatlegal.ca Small Claims Court (Ontario) Guide: Ch.3: Jurisdiction [s.8].

In summary though, this problem both greatly increases the complexity of tactical choices in termination (and other) situations, and the all-important issue of legal expense. I will refer to it further in the discussion below.

(c) Cost-Benefit Assessment

. Overview

While an employee has several interests at stake when it comes to asserting their legal rights (eg. pride, nature of letter of reference), chief amongst them is the net financial benefit of pursuing legal action (or actions).

The first costs and risks that jump to mind on this issue are obvious ones such as: legal expense, income tax and the risk of non-collection even if legal action is successful (all considered below). But the considerations by no means end there.

We can immediately see that the 'splitting' of jurisdictions (discussed above) can drastically increase the legal expense to any employee seeking to engage a lawyer or other legal professional. Fighting the same or similar issues before two, three or even more different tribunals is a recipe for financial ruin - and of course, this need is thrust upon the employee at precisely the time that the termination itself has placed the employee under intense financial pressure to meet even normal daily living expenses.

However another financial considerations also arise, indirectly related to the same issue of excessive jurisdiction-splitting discussed in (b) above. This is the issue of 'collateral benefits'.

. Collateral Benefits Deducted

As I use the term here, a "collateral benefit" is a financial source - other than the previous employer - that offers the potential of wage compensation or other 'coverage' to assist the employee financially in light of their wage loss. These sources include most of the 'other legal regimes' listed in (b) above (ie. EI, WSIB, STD/LTD, welfare, etc). All of them offer some form or other of wage-type replacement on top of the classical "wrongful dismissal" remedy.

Understandably, and as is the case with most forms of insurance, these various regimes do not tolerate 'double-dipping'. That is, if recovery is obtained by the employee from one source, then the employee will find themself either completely barred from pursuing some secondary sources - or alternatively they will find themselves under a positive legal duty to pursue the second source, but only for the purpose of 'repaying' the first source.

For example, take a case where a termination, contested in the courts by the employee by way of a wrongful dismissal claim, results - one year later - in a favourable settlement for nine months' pay-in-lieu wages. However in the meantime the employee had applied for, been granted, and collected EI benefits for most of that nine month period. In that case EI (not being tolerant of 'double-dipping') will retroactively reassess (and reverse) eligibility and assess an overpayment for the entire amount of EI benefits attributable to the period over which the employee has been freshly-compensated. The net result is that the employee finds themselves (at least to the extent of the value of the overpayment assessment), acting as the (unpaid) agent of EI's interest in recovering the insurance paid out (insurance which both the employee and employer have paid for).

In insurance law, EI's right of recovery is called "subrogation", though in most insurance contexts the burden of enforcing it is born by the insurance company. In the employment law context, the insurer or other benefits provider is essentially a 'free-rider' on the employee's own efforts. And like all free-riders, they draw on the energy and resources of the one doing the pulling (here by limiting the potential employee recovery to the net amount after EI payback and the other deductions discussed below).

That said (at least in the above example) recovery by EI does usually result in the 'extension' of the dismissed employee's EI benefit period into the future. That is, if the wrongful dismissal lawsuit is successful in establishing a longer notice period then the 'interruption of earnings' is delayed to that extent, and the EI pay-out is not limited so much as pushed into the future.

Similarly scenarios, in one form or another but all of similar effect, operate with respect to all the above-mentioned legal regimes. A more detailed, regime-by-regime discussion of collateral benefit deduction issues is located in Ch.6, s.5(c): "Termination and Wrongful Dismissal: Wrongful Dismissal and Just Cause: Damage Reductions".

. Legal Fees

I have already noted above the potential in employment termination cases for the 'multiplying' of legal expense due to having to pursue rights in various different legal venues. Here I just consider legal cost issues within a single such process.

The administrative tribunals that employees find themselves before (eg. EI, WSIB, welfare) typically have no jurisdiction to order the reimbursement of "legal costs". Such 'costs', to the extent that they are recoverable, are only a traditional feature of civil litigation in the courts. So for most litigation purposes, employees will have to accept legal costs as a de facto deduction from whatever 'awards' they might later achieve.

Even in court though such "costs" orders rarely fully compensate a successful party, and are subject to sometimes complicated court rules designed to encourage early settlement of cases by way of offers (for an example of this system, see the Isthatlegal.ca Small Claims Court (Ontario) Guide, Ch.14: Trial).

As well - and even if you don't use a legal professional - the dismissed employee will still incur court or tribunal costs such as filing fees and other litigation-related disbursements. And that's to say nothing of the basic 'expenses' they face in travel expenses, time and effort.

. Income Tax

Don't forget, most forms of wage replacement are taxable income for the periods to which they are allocated - just like regular wages (typically however they may be reduced by the legal expenses expended in obtaining them).

So while a raw 'Bardal' [see Ch.6] wrongful dismissal calculation (of wages-in-lieu entitlement) might produce an enticing and substantial round figure to chase, remember that it is a figure before income tax.

. Likelihood of Actual Recovery

At least in the case of court judgments directly against employers, "winning" a successful legal decision may not be the end of your chores. While many on-going (typically larger) employers and governments will pay-up a legal judgment (if they don't appeal it to a higher court), others will not and you must pursue recovery through the court's collection procedures. Contrary to what many believe, collection procedures are not 'automatic' or conducted by the court, rather they are often expensive and cumbersome procedures which are entirely creditor-driven.

Most tribunal monetary rulings against private parties are collectible through the enforcement procedures of Ontario's civil courts. The typical 'collection' methods available are explained in the Isthatlegal.ca Small Claims Court (Ontario) Guide, Ch.16: Collection.

(d) Fear of Retaliation and Litigation Anxiety

Of course not all 'costs' are monetary.

An obvious tactical issue when considering employee-rights claims during an ongoing employment relationship is retaliation, which can take both overt and subtle forms. Employees often face direct or tacit risk of termination, demotion, denial of promotion, harassment - and anything in between. In this way the lot of an employee attempting to assert their rights during employment is much like - though perhaps worse than - the lot of a residential tenant trying to assert their rights against a landlord while the tenant retains possession of the premises.

But neither are employee rights claims made after a termination stress-free. Civil - and even administrative - litigation can be challenging, both financially and emotionally. Most employees have little experience of the legal system, adding to the already daunting psychological issues associated with job loss and financial pressures.

(e) Comment

Advocacy, or self-advocacy, of employees rights is not for the faint-hearted. It requires a frank consideration of the very real financial, time and psychological burdens that it imposes on employees. Often the financial alone will demonstrate that 'sleeping dogs' be best left to lie.

As a legal reform issue, these problems are not entirely attributable to the extensive 'splitting' of legal jurisdictions in the employment law field, but IMHO that factor is the largest and the most easily remedied. Concerted government action at both levels of government is needed to establish consistent standards on key employment issues, the most important being "just cause" and medical "disability". Such reform should also embrace legislative imposition of these consistent standards into the private insurance sector as well, both disability and otherwise. If this is done judges will no doubt follow with a consistent application of res judicata principles to reduce the load on all concerned: parties, tribunals and courts.

Further, collateral benefit providers who place legal burdens on employees to pursue subrogated claims for restitution of their payments should be consistently required to contribute proportionally to the cost of these efforts, either through legal fees contribution and/or through credit to self-represented individuals (deductible from any overpayment amounts) for the efforts they make on behalf of the one-time benefits-provider.

Lastly, the splitting of jurisdiction over all the usual matters that arise on a termination needs to end. Financially and emotionally shell-shocked employees, and especially medically-incapacitated ones, should not have to face the multiple gauntlet of legal hurdles that they do: EI, WSIB, CPP, ODSP, ESA, OWA, STD, LTD, OLRB, OHRC and more. The initials alone make the average person dizzy, and the reality of what lies behind makes more positively nauseous.

The continued failure to consolidate adjudication of key employment issues in one forum has rendered many, if not most, employee rights to be theoretical only - defeated in reality by their sheer logistical weight. I understand that past efforts in this regard have been met with general antagonism from the employment law profession for reasons which escape me (I invite enlightenment).


2. Choosing Between Enforcement Procedures

(a) Overview

As noted in s.1 above ("Employee Advocacy"), many attempts to advocate for employees immediately run into a barrage of complex legal considerations - thus creating uncertain future implications in terms of remedies, expense and effort. Further, most of those considerations are time-pressured by running limitation periods.

In this section I discuss the procedural enforcement choices that an employee faces - particularly in termination situations - and the factors that must be assessed in selecting the best available procedure, or combination of procedures.

Central to the procedural complexities discussed here is the decision (actually a mandatory "election", see below) over whether to advance one's primary employment entitlements through the ESA complaint process (which has significant jurisdictional limits) - or whether to proceed in civil court where (for the most part) both ESA minimum standard entitlements and (usually-higher) common law entitlements can be claimed.

Other legal regimes have more peripheral procedural implications on the advancement of an employee's case, particularly on the issue of the deduction of "collateral benefits" from any termination entitlement awards. These impacts, as they relate to the following regimes are discussed in Ch.6, s.5(): "Terminations and Wrongful Dismissal: Wrongful Dismissal: Damage Reductions":
  • employment insurance (EI),
  • short-term and long-term disability insurance (STD/LTD),
  • Workers' Safety Insurance Board (WSIB) benefits,
  • Ontario Disability Support Program (ODSP) income support, and
  • Ontario Works (OWA) (aka welfare) assistance.
Of similar impact, but arising far less frequently in practice, is the interaction of court and ESA employment claims with the Ontario Human Rights Code (HRC) regime. Interaction of the HRC regime with employment litigation can give rise to both collateral benefit deduction issues [see the above reference], and (although more so in past) the "abuse of process" issues which are discussed in Ch.6, s.5(s): "Termination and Wrongful Dismissal: Wrongful Dismissal and Just Cause: Overview: Multiple Forums and Abuse of Process".

(b) The "Election"

There is, in some legal contexts, a principal that the existence of an administrative tribunal regime governing a specific area of law ousts the general jurisdiction of the courts over that same area of law [see the discussion of the Weber v Ontario Hydro case in Ch.1, s.5(a)]. The effect of this principle, when it operates, is to restrict a party to use of that administrative procedure only.

While that principle is thankfully not applicable to court actions claiming ESA entitlements [Boland v APV Canada [2005] OJ #510 (QL) (Div Ct)], something similar is put in its place. This is a mandatory either/or 'election' between the ESA administrative procedures (the "ESA complaint process") and a court action. So an employee can sue in court for an ESA entitlement (and common law wrongful dismissal damages), or they can claim for their ESA entitlements (alone) through the ESA complaint process - but they can't split the proceedings. That is, they can't seek their ESA entitlement through the ESA complaint process and then pursue any further common law 'top-up' entitlements in court.

This mandatory election requires detailed consideration and balancing of a variety of issues. For instance, employees will want to make sure that they select a procedure in which all or most of their rights can be heard and decided at once (ie. one that has remedial jurisdiction over all their claims), but they also want one which is affordable. Further, if a limitation period has expired which bars using one procedure (ie. typically the shorter ESA complaint limitations), then they may be forced into using the courts (which generally have a longer limitation period for claims). There are a range of other factors as well, all of which are discussed below.

Logically, the "election" only applies where both the ESA complaint process and the courts have jurisdiction over the same ESA-based entitlement (the specifics of those respective jurisdictions are discussed immediately below) [ESA s.97(1,2)].

Where it does apply, the election dictates that an employee who has already filed an ESA claim respecting the matter is thereby barred from suing in court for the same matter [ESA s.97(1)]. Further, an employee may not circumvent this provision (and thus maintain the ESA complaint) by claiming in court only the "excess" they allege is due to them over the ESA monetary order jurisdiction limit (ie. $10,000) [ESA s.97(3)]. The only way in which an employee - who has already filed such an ESA claim - may re-elect for court proceedings is to withdraw the complaint within two weeks after it is filed [ESA s.97(4)].

Similarly, where an employee has already sued in civil court for the matter, they are barred from filing an ESA claim for the same compensation [ESA s.98(1,2)]. Note that where the court proceeding was initiated first, there is no provision for the employee to withdraw it in order to re-elect to the ESA procedures.

In some circumstances it is allowable to split ESA entitlements into their different types, and advance one type through one procedure, and the remaining types of claims through the other procedure (see "Splitting Claims Between the ESA Complaint Process and the Courts", below).

(c) Notice Requirement Where Suing for Any ESA Entitlement

Note that when an employee sues in court for any ESA entitlement, they are required to notify the ES Director of the court action "on or before the date the civil proceeding is set down for trial" (ie. this provision is ambiguous but the safest interpretation is: 'on or before the date that the court performs the act of scheduling a trial date' - not on or before the trial date itself) [ESA s.8(2)].

There is no set form for this Notice, so use a common sense letter setting out the court level and location that the action is in, the court file number, and the date that the trial is set for. It would also be useful to attach a copy of the Statement of Claim. Such notice may be served on the Director [ESA 8(3-5)]:
  • In Person or by Courier

    Anytime when the Director's office is open, at 9th Floor, 400 University Avenue, Toronto M7A 1T7. A written receipt or acknowledgement of service from the staff should be requested when you or your courier attend, and service is effective on the date noted on that receipt or acknowledgement.

  • By Mail

    To the above address using a method that allows written verification (eg. registered or certified). In this case service is effective on the date noted on that written verification.

  • Fax

    By fax to 1-866-588-9998 or 416-212-7900 (use a machine that prints out a verification slip). Service is effective the day of the fax being sent, although if it is sent later than 5pm or on a day that the Director's office is closed, service is only effective the next day that the Director's office is open.

  • Email

    By email (if you can find their address - which I can't!; if you know it please advise). Service is effective the day of the email being sent, although if it is sent later than 5pm, or on a day that the Director's office is closed, it is effective the next day that the Director's office is open.
(d) Comparing Remedial Jurisdictions

The ESA administrative enforcement process [Ch.7] and the civil courts share 'subject-matter' jurisdictions over unpaid wages, termination and severance pay and benefit plan contraventions (each considered in turn below). Together these form the bulk of ESA-based employment (indeed most employment) entitlements. That said, both of the separate processes still retain some unique jurisdictions of their own which the other lacks.

For instance, the 'reprisal and related' remedies of job re-instatement and 'orders to hire' [see Ch.9, s.2] are solely ESA complaint process remedies, both because the common law does not allow courts to enforce "specific performance" of employment contracts by way of compelled association and because the ESA only grants that authority to ES officers [ESA 104(1)].

On the other hand, the civil court has what is called "plenary jurisdiction" to grant any remedies that a party is entitled to under contract or common law, be they monetary awards of whatever amount or injunctions to ban or require certain behaviours (although limited by legal doctrine as noted in the para immediately above).

(e) Comparing Limitation Periods

Limitation periods are time limits which, if exceeded, bar the availability of the particular legal processes to which they apply. Note that limitation periods, at least as they relate to the below discussion, are 'tied' to the legal procedure chosen, not to the type of the entitlement being enforced.

ESA complaint process limitation periods are explained in Ch.7, s.3 ["ESA Administrative Enforcement: Limtiations"]. In that discussion I am critical of what I consider to be very short limitations (typically six months) - and a highly complicated limitations structure.

On the other hand (subject to some exceptions and conditions which I do not explore here) most civil court claims are subject to a more generous two-year limitation period.

There are no provisions for extending the ESA limitation periods. Parties moving to enforce their rights after the expiration of an ESA complaint process limitation period will have no choice but to proceed by way of a lawsuit.

(f) The Election and Unpaid, Termination and Severance Wage Claims

To start with let's distinguish termination and severance 'pay-in-lieu' claims from straightforward unpaid wage claims. By "unpaid wages" here I mean just that: missing, 'bounced' or short paycheques that thereby fail to make payment of regular, overtime, holiday or vacation pay to which the employee is entitled by virtue of already having performed the work.

Assuming there are no time limitation and monetary jurisdiction problems (discussed above), then the ESA process is suitable for pursuing unpaid wage claims. The same could be said of severance pay entitlements, in the rare case when they stand apart from termination pay claims.

However, and while it would seem to be natural to deal with unpaid wage and termination/severance entitlement issues together, the presence of termination pay claims usually forces the employee to consider their ESA versus court procedural election. This is because the duration of termination entitlements (ie. the number of months pay-in-lieu) are almost always different under the ESA and the common law. This is the well-known distinction between statutory termination entitlements and common law "wrongful dismissal" entitlements. It is well-accepted law that the ESA complaints process may only enforce the termination pay-in-lieu and severance pay entitlements that are set out in the ESA - so this means that common law wrongful dismissal damages are within the sole jurisdiction of the courts.
Note:
I have to admit that for a while I questioned this last point, at least as it limited ESA complaint process' remedial jurisdiction. If one views the common law notice period entitlement [see Ch.6, s.5(b)] as an 'implied term' of a contract of employment (as it is often referred to in the caselaw), then there does not seem to be any barrier to enforcement of such common law termination entitlements under the ESA complaint process. Remember: the ESA definition of "wages" includes "monetary remuneration payable by an employer to an employee under the terms of an employment contract, oral or written, express or implied" [ESA s.1(1)].

So for a while I thought I had an argument that the ESA complaint process had jurisdiction over common law wrongful dismissal "damages" (albeit limited to the low $10,000 order maximum) - again, if such an entitlement was viewed as an "implied term" of the employment contract.

However then I focussed on the common characterization of wrongful dismissal awards as "damages". While the ESA expressly allows it's notice periods to be 'bought out' [ESA s.61], the common law does not do this. While a similar payment has the legal effect of satisfying the employer's common law "notice period" duties, but such payments just extinguish "damage" liability for short or absent prior notice of termination - it just happens that the measure of damage is in months of wage entitlement.

While this damage/wage distinction may be enough to maintain the distinction between the remedial routes, it does seem semantic only as any functional difference between the two situations seems lacking.

In any event, as noted above it is well-accepted law that common law termination entitlements (ie. wrongful dismissal) may only be advanced in the courts, and that ESA termination entitlements (ie. termination notice pay-in-lieu and severance pay) may be advanced either under the ESA complaints process or in courts [the Boland v APV Canada case, cited above].
Lastly, and just to be clear, since the ESA complaint process has jurisdiction over contractual (ie. above minimum wage entitlements) "wage" entitlements (by virtue of the ESA definition of "wages" [ESA s.1(1)] which includes: "monetary remuneration payable by an employer to an employee under the terms of an employment contract"). So the ESA can be used to enforce contractual-level unpaid, termination and severance wage entitlements, not just their minimum-wage versions.

(g) The Election and Benefit Plan Claims

Making the election as to where to pursue benefit plan entitlements is probably the most complex of all the election decisions that an employee may face. This is due to additional complications embedded in the ESA complaint process, which must be addressed even before court procedural issues are considered.

To start with, let's recall what "benefits" are. The term benefits applies to any and all of a series of extra-wage compensation provided to not only to employees, but also includes amounts or reimbursements paid to other persons (eg. family member beneficiaries) if their entitlement arises by reason of [Reg 286/01, s.1 Defns]:
  • superannuation,

  • retirement,

  • disability,

  • accident,

  • sickness,

  • medical, hospital, nursing, drug or dental expenses or other similar amounts,

  • termination [in the benefit context, this normally refers to contractual termination benefits (eg. retraining programs), not ESA termination or severance entitlements (which are covered in Ch.6: "Termination and Wrongful Dismissal")];

  • death.
With that key definition in mind, several distinctions are necessary.

The first distinction is that benefit plan entitlements can be solely ESA-based [ie. aspects of the employment standards discussed in Ch.5, s.1] - or they can be purely 'contractual entitlements'. This distinction is important because it is also the line that divides the remedial jurisdiction of the ESA complaint process (which is limited to ESA "contraventions") versus that of the courts (plenary, or unlimited, jurisdiction).

The second distinction is that some parts of an employee's benefit plan entitlements may fall within the definition of "wages" of the ESA, and some don't - varying with the form in which the benefit is received by the employee ("wage v non-wage benefit plan entitlements"). The distinction is important for the remedial choice between a monetary order versus an injunction (or compliance order) claim. Remember:
s.1(1)
"wages" means, ...

(b) any payment required to be made by an employer to an employee under this Act, and....
The result of this key definition is that any benefit plan entitlements which are normally and properly paid in monetary form are "wages". Thus past payment entitlements such as short-term (STD) or long-term (LTD) payments, constitute "wages". Others, such as car use and other non-monetary 'perks' are not "wages".

Now a third distinction, which builds on the last: the distinction between past and future non-monetary (and thus non-"wage") benefit entitlements, regardless of whether they are granted under the ESA or contract ("past v future non-monetary benefit plan entitlements"). Past entitlements cannot be retroactively remedied 'in kind' and must be reduced to "damages" for purposes of remedy. Future entitlements to non-monetary (and thus non-"wage") benefits however can be provided in kind, and are the subject of ESA "compliance orders" or court injunctions, as the case may be.

Ok, now let's look at the available procedures for enforcement of benefit plan entitlements, and their remedial limitations:
- Wage Compensation Orders (ESA Complaint Process)

Firstly, the general ESO "wage compensation order" [see Ch.7, s.4(c); ESA s.103] is available to compensate the employee for past, ESA-grounded, monetary benefit plan entitlements - because these fall into the definition of wages. It is not however suitable for claims for past non-monetary benefit plan entitlements, regardless of whether they are ESA-grounded or contractual (see "OLRB Benefit Plan Referrals", below).

- ESA Compliance Orders (ESA Complaint Process)

Compliance orders [see Ch.7, s.4(d)] are suitable for ESA-grounded, future wage and non-wage benefit entitlements. The effect of an order establishing benefit entitlements effectively compels future provision of the benefits, be they in monetary or non-monetary form (at least until the employer alleges a change in circumstances].

- OLRB Benefit Plan Referrals

The ES Director has discretion to refer a benefit plan "contravention" under the ESA (thus limiting jurisdiction to ESA rights, not higher contractual ones) to the OLRB for determination [see Ch.8, s.12: "OLRB Procedures Applicable to ESA Matters: Benefit Plan Issue Referrals"].

While this process cannot consider purely contractual benefit plan entitlements, it does have broader 'damages' type jurisdiction [ESA s.121(3): "to compensate any person or persons who may have suffered loss or been disadvantaged as a result of the contravention".] Because of this, the referral of an ESA benefits plan complaint to the OLRB is suitable for damage claims for loss of past, non-monetary ESA-based benefit plan entitlements and - potentially - as well for general damages, if any, stemming from the wrongful withholding of those benefits.

- The Courts

The courts, subject to the Small Claims Court $25,000 monetary limit, have unlimited and plenary (full) benefit plan entitlements jurisdiction over: past monetary loss claims, all damage claims (both general and for loss of non-monetary form benefits) and injunctions (re future entitlements), be they grounded on ESA rights or contract.
(h) Splitting Claims Between the ESA Complaint Process and the Courts

A further complication arises with the potential for "splitting" an overall ESA claim into its component types, and making different elections for each of these claim 'packages'.

The election rules (see "The Election", above; ESA s.97,98) themselves anticipate such splitting by specifying categories of ESA entitlements which may be separated from each other for these purposes. These categories are:
  • Unpaid wage claims (excluding termination entitlements) [see "The Election and Unpaid, Termination and Severance Wage Claims" above; ESA s.97(1), 98(1)];

  • ESA-grounded benefit plan claims [see "The Election and Benefit Plan Claims" above; ESA s.97(1), 98(1)];

  • ESA-grounded termination entitlement claims (ie. termination pay-in-lieu and severance pay) [ESA s.97(2), 98(2)].
For example, an employee with a wrongful dismissal claim (amongst other claims) could advance it in court, but doing so would bar use of the ESA complaint process for ESA termination pay-in-lieu and severance pay claims, as these must be included in the related court action. Similarly, the same employee could separately elect to advance an unpaid wage claim (eg. unused and uncompensated vacation entitlement) through the ESA complaint process. In this scenario - if the same employee also had an ESA-grounded benefits plan claim - they could choose to 'add' it either to the court action or the ESA complaint process, both of which are proceeding anyway. Obviously, other splitting configurations are possible.


3. Evidence

(a) Overview

As most of the initial level employment law procedures (ie. ESA, EI, WSIB, STD/LTD, HRC, welfare) are administrative in nature (that is, the initial 'eligibility' determination is made without a legal 'hearing'), employee-claimants are not immediately required to have a working knowledge of the civil rules of evidence.

However, as all situations have the potential to reach hearings at appeal or review stages, it is highly advisable that claimants become familiar with evidence rules regardless. The evidence that is initially presented to the administrative decision-maker (ie. ES Officer or other first-level worker) is normally the same evidence that will be presented before an administrative tribunal on an appeal or review hearing (where 'adjudication' can properly be said to occur).

As well, most initial decision-makers will be familiar with and influenced by the rules of evidence when they consider how much weight to afford the information and material before them. Plainly, if the initially-provided evidence is of high 'evidentiary' quality, it will be more persuasive.

Basic administrative evidence law is reviewed at the following Isthatlegal.ca link:

Administrative Law (Ontario)(SPPA): Ch.6: Evidence

(b) Employee Logs

Employers typically organize their information and evidence far better than employees do, if for no other reason than the reporting and financial accounting requirements that come with running a business and meeting payrolls [see Ch.3, s.6 and 8]. Couple this with the fact that they retain ongoing control over the workplace after the employee leaves (and thus primary contact with the potential witnesses that are in it) and the dominant tactical position of employers respecting evidence becomes apparent.

As the foundation of any legal advocacy for employees (or anyone for that matter) is good quality evidence, employees need to level this playing field by learning and applying good evidence-gathering habits.

I have always recommended to my employment clients (at least when they have come to me before termination) that they maintain ongoing "employment logs". These amount to little more than chronologically-organized notebooks and document files, which should be updated regularly in a consistent and detailed fashion. They should not be self-serving in nature, but should strive to be objective (just the facts) - as self-serving or exaggerated material can taint the entire body of evidence that the employee later hopes to rely on.

Such logs should - minimally - containing the following information and material:
  • a daily, dated record of hours worked (including precise times starting and stopping);

  • nature of work performed, reflecting both regular work and any significant variations;

  • verbal directions from and verbal exchanges with superiors (strive to record them verbatim, but otherwise do the best you can) - noting any witnesses present at the time,

  • any documentation received from, or copies of documentation given to, the employer (ie. letters, policies, memos, etc) - noted by date of the transaction;

  • contact information (name, address, phone) of any potential witnesses to any of the above.
Other information can be recorded as well. Use your own judgment in the context of the situation.

Records such this that are recorded in a regular and unbiased fashion, concurrently with the events that they record, are likely to be given much greater weight than simple mental recall. As well, well-organized information and evidence is much more likely to be weighed favourably by decision-makers and adjudicators (if only for the fact that it makes their jobs easier).

(c) Other Evidence

. Federal Record of Employment

Whenever there is a termination (or a significant interruption) of employment, employers are required to issue "Records of Employment" (ROEs), primarily to facilitate the employee claiming EI benefits.

The Canada Revenue Agency form used for this purpose is linked here:

Record of Employment

Basic information on employer duties respecting ROEs is linked here:

Record of Employment Instructions

. ESA-Mandated Employer Records

As noted above, at Ch.3, s.6 and 8 I explain the extensive ESA-mandated record-keeping duties of employers. While there is no direct employee right to access to or copies of these records (except for 'pay statement' information), they are available on demand by an ES Officer [ESA s.16]. If issues that should be reflected in those records arise in a case, employees should be sure to confirm that the ESO has sought and obtained such records for review.

If and when the case gets to an appeal or review stage, rules of evidence disclosure normally require that such evidence be given to the employee [for OLRB disclosure rules see Ch.8, s.6: "OLRB Procedures for ESA Matters: Service and Filing of Evidence (Disclosure)"]. Failure of an employer to adduce such records into evidence, when the issues at stake naturally call for them, can result in a negative evidentiary inference being made against them on the issues concerned.

(d) Evidence Rules Re ESA and OLRB Staff

. Overview

While specific evidence rules that apply to OLRB hearing procedures are covered elsewhere [Ch.8, s.6 and 10(d)] the ESA does provide some rules which are of general application to any legal proceedings involving ESA entitlements (including the advancement of ESA entitlement claims in civil courts).

. Concepts Explained

Some initial concepts need to be explained.

"Compellable" is an evidence term used to describe the legal availability of a person to be compelled as a witness for a legal proceeding. If a person is not "compellable" then a summons served on them will be in ineffective in law. This does not however prevent them from witnessing if they choose to.

"Competence" on the other hand refers to the legal ability of a person to serve as a witness, even if they want to. Readers may have heard of the principle of "spousal incompetence", which - when it applies (there are numerous exceptions) - means that a spouse cannot give evidence against the other spouse.

. Prohibitions on ESO Evidence

ESOs (employment standards officers) are neither competent nor compellable in civil proceedings "respecting any information given or obtained, statements made or received, or records or other things produced or received under this Act except for the purpose of carrying out his or her duties under it" [ESA s.90(1)].

Similarly, ESOs are not compellable "to produce any record or other thing he or she has made or received under this Act except for the purpose of carrying out his or her duties under this Act" [ESA s.90(2)].

This review of ESA provisions makes it plain that aiding and assisting an employee in pursuit of their ESA-based rights in civil court is not an aspect of an ESO's "duty". The net effect is that if an employee sues for their employment rights, they should not expect any active assistance from ESOs to the extent that they have a pre-existing file on the matter (although given the need to "elect" between the two procedures [see s.2(b), above] there is less likely to be an investigation file on the specific claim).

. Prohibitions on OLRB Staff Evidence

Similarly, the following OLRB officials are not compellable witnesses in ESA Review proceedings (or any civil or administrative proceedings for that matter) "with respect to information obtained while exercising his or her powers or performing his or her duties under this Act", except where the Board itself consents (thus making them "competent")[ESA s.123(1)]:
  • an OLRB member,

  • the OLRB Registrar,

  • any OLRB employee.
. Use of Freedom of Information Requests

I have never tried it myself in employment litigation, but where the employee suspects that either the Ministry or the OLRB has useful documentation, the employee might try using the provincial FIPPA (Freedom of Information and Protection of Privacy Act) process to obtain copies of it. FIPPA requests are limited to the production of copies of "records" (typically but not necessarily paper documents), and can face access exemptions for "third party information", but it might be worth a try. If obtained, many such records would likely be admissible as "business records" [see the Small Claims Court (Ontario) Guide, Ch.15: "Evidence"].

This government FIPPA webpage may assist the reader in making such a request.


4. Settlement

Some formal settlement procedures are anticipated by the ESA once the parties have reached either the ESA complaint stage [see Ch.7, s.4(f): "ESA Administrative Enforcement: Orders and Related Measures: Party-Party Settlement"] or the Order collection stage [see Ch.7, s.5(e): "ESA Administrative Enforcement: Payment and Collection of Orders: Collection Settlement"].

However inexperienced employees should be very wary about signing anything or accepting any payments from employers before these formal stages are reached, or before legal counsel are consulted.

For example, it is an extremely common employer tactic on termination to "offer" to settle all outstanding claims for an amount that is little more (or perhaps even identical to) their ESA minimum notice pay-in-lieu (and perhaps severance) entitlements [as explained in Ch.6, s.2 and 3]. Invariably no payment will be forthcoming of these basic, uncontested entitlements unless a full release of all employee rights is signed and given to the employer.

Where there is no serious allegation of just cause for the termination, such offers are almost always quite insincere and deceptive. A dismissed employee (except where they have been given proper "working notice" [see Ch.6, s.2(b)]) is fully legally entitled to their ESA pay-outs without having to sign away anything - much less their additional common law rights as well.

Even if such offers are accepted in an effort to avoid having to 'chase the money', care should be taken to make them acceptable only by the act of full payment of the monies owed, and not for "another promise". Otherwise an employee may be exchanging an unpaid claim for X dollars for an unpaid claim of 1/2 of X dollars.
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