Rarotonga, 2010

Simon's Megalomaniacal Legal Resources


ADMINISTRATIVE LAW | SPPA / Fairness (Administrative)

home / about / Democracy, Law and Duty / testimonials / Conditions of Use

Civil and Administrative
Litigation Opinions
for Self-Reppers

Simon's Favourite Charity -
Little Friends Lefkada (Greece)
Cat and Dog Rescue


Employment Law (Ontario) Legal Guide
(01 January 2016)

Chapter 1 - Primary, ESA-Special and ESA-Exempt Employment Sectors

  1. Basics
    (a) Overview
    (b) Employee versus Independent Contractor
    . Overview
    . The Common Law Employee Test
    . Where the "Employee Test" Arises
    . Tactical Note Re the "Employee Test"
    (c) The ESA "Employee" Definition
    (d) The Employment Relationship as a Contract
    . Overview
    . Written, Oral or Implied Contracts
    . No Contracting Out of ESA
    . Manner of Wage Payment
    . Limits of Duration of Term Contract
    (e) Parties
    . Overview
    . Associated Employers
    . Corporate Director Wage Liability
    . Continuity of Employer Through Sale
  2. Employees of Federally-Regulated Enterprises
  3. Provincial Government Employees
  4. Federal Government Employees
  5. Unionized Employees
    (a) Overview
    (b) Substantive (Rights) Law
    (c) Procedural Law
  6. Diplomatic Employees
  7. Fully ESA-Exempt Categories
    . Work Experience Students
    . Some College Program Workers
    . Ontario Works Workfare Participants
    . Prisoners in Work or Rehab Programs
    . Court-ordered and YCJA Work
    . Simulated Rehab "Work"
    . Political, Religious or Judicial Office-Holders
    . Members of a Quasi-Judicial Tribunal
    . Elected office-holders in organizations
  8. Women's Clothing and Fur Industry Employees (Garment Workers)
    (a) Overview
    (b) Minimum Wage
    (c) Off-Work Intervals
    (d) Eating Periods
    (e) Hours of Work Limits, Hour-Extending Agreements and "Special Rate Work" (Overtime)
    . Overview
    . Understanding the Standard Rules
    . Key Concepts
    . Hour-Extending Agreements: An Interpretation Problem?
    . The "Special Rate"
    . Breaks and Eating Periods
    (f) Holidays
    . Overview
    . Work on Industry Holidays Prohibited
    . Paid Time-Off for Industry Holidays; Exceptions
    . "Industry Holiday" Pay Rate
    . Special rules for Victoria Day and Canada Day
    (g) "Normal Work Day" Work Schedules (for Non-Homeworkers)
    . Overview
    . Single Workplace Shift
    . Two Workplace Shifts
    (h) Vacations
    . Overview
    . Timing of Vacation
    . Vacation Pay
    . Additional, Year-End Vacation Pay Entitlement
    (i) Industry Review Committee
  9. Specific ESA Exemptions and Special Treatment: Public and Quasi-Public Sectors
    . Police Officers
    . Residential Care Workers
    . Road Building Workers
    . Teachers
    . Firefighters
    . Ambulance Workers (Union and Non-union)
    . Ambulance Paramedics and Emergency Medical Assistants (Unionized)
    -- General
    -- Off-Work Intervals
    -- Eating Periods
    . Sewer and Watermain Construction Workers
    . Public Transit Services
    -- General
    -- Off-Work Intervals
    -- Eating Periods
    -- Hospital Employees
  10. Specific ESA Exemptions and Special Treatment: Private Sector
    . Homemakers
    . Building Service Providers
    . Retail Business Establishments
    . Construction Employees
    . Domestic Workers
    . Hotel, Motel, Tourist Resort, Restaurant and Tavern Workers
    . Information Technology Professionals
    . "Recorded Visual and Audio-Visual Entertainment Production" Workers
    . Taxi Cab Drivers
    . Professionals
    . Health Professionals
    . Commercial Fisheries Workers
    . Real Estate and Business Brokers
    . Non-Route Commission Salespersons
    . Fishing and Hunting Guides
    . Live-In Building Superintendents, Janitors or Caretakers
    . Embalmers and Funeral Directors
    . Landscape Gardeners and Swimming Pool Workers
    . Seasonal Fresh Fruit and Vegetable Processing Workers
    . Local Cartage Workers
    . Highway Transport Workers
    . Commission Auto Salesperson Employees
    . Automobile-related Industry Employees
    . Live Performance, Trade Show and Convention Employees
    . Mineral Exploration and Mining
    . Farmers and Agriculture Workers
    -- Overview
    -- Primary Producers
    -- Fruit, Vegetable and Tobacco Harvesters
    -- Miscellaneous
  11. Specific ESA Exemptions and Special Treatment: By Nature or Status of Work
    . Supervisors and Managers
    . "Elective" Workers
    . Probationary Employees
    . Trainees
    . Homeworkers
    . Continuous Operations
  12. Specific ESA Exemptions and Special Treatment: By Personal Characteristics of Employee
    . Students
    -- Overview
    -- Students Under 18
    -- Students in Charity Recreational and Child-Related Work
    . Corporate Directors
  13. Temporary Help Agencies
    (a) Overview
    (b) Exemption for Community Care Access Centre-referred Workers Under the Long Term Care Act, 1994
    (c) Agency Information Duties to Employee
    (d) Prohibited Agency Fees and Practices
    . Overview
    . Prohibited Agency Fees Against Employees
    . Prohibited Agency Fees Against Clients
    . Prohibited Agency Practices
    (e) Public Holiday Pay
    (f) Termination, Severance and Lay-Off
    . Overview
    . Lay-offs
    . Mass Termination Notice
    . Terms of Employment May Not Change During Working Notice
    . Pay-in-Lieu of Notice
    . Severance Criteria
    . Severance Pay Calculation
    (f.1) Joint Liability of Agency and Client for Unpaid Wages
    (g) Reprisal by Agency Client
    (h) ESO Administrative Enforcement Meetings Extended to Agency Clients
    (i) Record-Keeping Duties of Agencies and Clients
  14. Foreign National Live-In Caregivers

1. Basics

(a) Overview

As will be seen throughout this Employment Law (Ontario) Guide, a huge theme in Ontario employment law is the interaction between the common law and the statutory law, the latter mainly in the form of the Employment Standards Act (ESA). The ESA imposes direct "employment standards" into the employment contracts that it applies to, primarily in the form of "minimum standard" guarantees below which the employer may not fall.

The ESA regime reflects a recognition by the provincial legislature of the relative imbalance of power in the relationship between employer and employee: the employee's 'job' usually being essential to them, while the employer's interest is usually (though not always) essentially an investment interest to increase already significant assets. That imbalance was early recognized by the common law (made by judges in case law) in the establishment of legal requirements of prior notice of a pending termination.

Good intentions notwithstanding, this ESA v common law division creates complexity in the field and constantly presents all parties (and their counsel) with tactical choices regarding substantive rights (eg. seeking common law v ESA termination pay-in-lieu), procedures (ie. court lawsuit v ESA complaint) - as well as sometimes complex issues regarding limitation periods, res judicata and other themes.

Grafted on top of this already complex situation is further difficulty in determining whether a specific situation is governed by the ESA or not - or which parts of the ESA apply to it - or further whether special treatment applies.

These exceptions, exemptions and special rules are the subject of this chapter. As will be seen below, the vast majority of them are generated by the demands of the specific industries or economic enterprises being regulated. In perhaps the most plain and accessible way available, the privilege rankings embodied in these exemptions and special rules reveal the raw balance of power between enterprise and employee, and between the class and race groupings of various categories of employees.

(b) Employee versus Independent Contractor

. Overview

The primary historical distinction between employees and 'other' workers - and perhaps the best one to define essentially what an employee is under the common law - is the distinction between employees and independent contractors.

This distinction is sometimes characterized as that between those under contracts "of" service (employees) and those under contracts "for" services (independent contractors). That is - employees are in an arrangement to generally be "of" service to a payor - whereas independent contractors are hired to provide specific, limited and defined services "for" the payor.

. The Common Law Employee Test

Over the years the courts have evolved some general tests to draw this distinction. They are not all consistent but the themes are. As will be seen below my view is that the distinction can best be summarized as follows: both employees and independent contractors are told by others what to do, but employees are also told how to do it.

That said, the most well-known common law legal test is the "four-fold" test, which assesses the following four factors:
  • control
  • ownership of tools
  • chance of profit
  • risk of loss
If anything, the "control" element is considered the most important of these.

The greater the degree of each of these factors that the worker has, the more likely they are to be an independent contractor - and of course, the less, the more likely they are to be an employee. The themes are obvious: control and greater personal (not investment) interest in the enterprise by the worker militates against them being categorized as being in an employment relationship.

. Where the "Employee Test" Arises

Application of the "employee test" can arise in numerous legal contexts and for several reasons, as follows (there are no doubt more):
  • Canada Revenue Agency (CRA)

    To determine a worker's eligibility for (and their employer's responsibility for) Employment Insurance and the Canada Pension Plan.

  • Workplace Safety and Insurance Board (WSIB)

    To determine a worker's eligibility for (and their employer's responsibility for) WSIB.

  • Court

    To determine whether the worker is an "employee" at common law, and as such entitled to rights which independent contractors are not.

  • Employment Standards

    To determine whether they have coverage under the ESA.
. Tactical Note Re the "Employee Test"

In my practice I have seen a common tendency amongst workers (usually later held to be "employees") to assume that if the relationship is originally structured by the payor as being one of independent contracting, then that's what it is.

Such initial 'arrangements' are common in some fields of activity more than others. For examples include: bicycle couriering, taxi cabs, driver education instructors, home-based telemarketers - to name only a few. The incentives for the payor to establish this initial understanding are significant, as they avoid the responsibility and expense of numerous employment law duties, including: minimum wage and all other ESA employee entitlements (eg. holiday, vacation time and pay, overtime, hours of work limits, etc), ESA payroll rule compliance, EI/CPP/Ontario Health Tax/WSIB contributions, termination notice - and others.

The (usual) misconception of the worker is that this status cannot be legally challenged or - even if it can - then any "employee"-favourable determination will not retroactively establish employee entitlements (ie. EI, CPP, WSIB) because neither party has made the appropriate contributions to the program. Both conclusions are wrong.

For example, take the situation of a worker who is under the initial understanding that they are not an employee. One day they are told that: 'your contract is terminated', and their source of income immediately ends. If they suspect that they were in fact employees, and wish to seek employment insurance (EI) benefits coverage, they should simply make an EI application. The determination of employment status is a natural part of the EI eligibility assessment (although in most cases it is obvious), and - while it will make the case more complex than most - it is one that HRSDC (Human Resources and Social Development Canada) will undertake largely on behalf of the worker. All of this is despite the fact that to date not one cent of employee or employer contribution has flowed to the EI program as a result of the work relationship.

Similar situations arise in the WSIB, CPP, ESA, court and any other context in which employee rights are claimed by such workers. If the worker is found - in law - to be an employee, the payor (now unhappy "employer") may be retroactively assessed for their contributions as far back as the determination applies. Employee contributions due as a result of such re-categorization - if any - are almost always compensated for by the later benefits that flow to them.

At least with respect to EI and CPP claims, the employee is essentially drafting the 'tax department' to work on their behalf. All such programs are motivated to engage in such investigations, if only to police proper program compliance by payors trying to dodge their legal duties.

On these issues, the following links may be useful:

WSIB "Workers and Independent Operators"

EI/CPP "Determining the Employer/Employee Relationship"

(c) The ESA "Employee" Definition

Although in the vast majority of situations a worker who is a "common law" employee will also be an "ESA" employee, some divergence is theoretically possible. The likelihood of an articulated statutory definition being constantly identical to a constantly evolving common law definition is slim.

On that issue, the ESA sets out the following definitions relevant to the issue [ESA s.1(1) defns]:
  • "employee" includes,

    (a) a person, including an officer of a corporation, who performs work for an employer for wages,

    (b) a person who supplies services to an employer for wages,

    (c) a person who receives training from a person who is an employer, as set out in subsection (2), or

    (d) a person who is a homeworker,

    and includes a person who was an employee;

  • "employer" includes,

    (a) an owner, proprietor, manager, superintendent, overseer, receiver or trustee of an activity, business, work, trade, occupation, profession, project or undertaking who has control or direction of, or is directly or indirectly responsible for, the employment of a person in it, and

    (b) any persons treated as one employer under section 4, and includes a person who was an employer.
These "definitions" are not particularly informative. They make no reference to anything like the "employee test" reviewed above. Actually, except for the reference to "wages", there is nothing on the face of the ESA "employee" definition to distinguish between common law employees and independent contractors (eg. the contractor renovating your kitchen). Further review of the "wages "definition shows it to be essentially 'money paid to an employee', an unhelpful addition - the net result is that the ESA definition of the employment relationship is quite circular.

That said, it is certain that courts will graft onto the ESA definition the latest common law "employee test" - the net result being that the ESA definition will always closely track (perhaps identically) the common law one.

As well - understandably if only for reasons of the geographical limitations of the provincial legislator - the ESA only applies to employment where [ESA s.3(1)]:
  • the employee's work is to be performed in Ontario; or

  • the employee's work is to be performed in Ontario and outside Ontario but the work performed outside Ontario is a continuation of work performed in Ontario.
(d) The Employment Relationship as a Contract

. Overview

Despite all the regulation inherent in the ESA, the employment relationship is still in essence contractual, and there are aspects of that basic relationship that need to be set out.

. Written, Oral or Implied Contracts

Under the common law there is no requirement that an employment contract (or most contracts for that matter) must be rendered into written form. The usual phrase applied is that the relationship may be 'written, oral or implied'.

Written contracts are more commonly used in whitecollar and professional employment, and have the advantage of providing some (never full) clarity to the relationship. Oral and implied contracts of course present greater difficulty in this respect. Determining their terms can end up being forensic investigations into such things as workplace practices, policy manuals, prior notice of changes and acquiesence to all of them by the employee.

The ESA does not add any requirement of writing, although it does include this rather cryptic provision [ESA s.1(3,4)]:
Unless otherwise provided, a reference in this Act to an agreement between an employer and an employee or to an employer and an employee agreeing to something shall be deemed to be a reference to an agreement in writing or to their agreeing in writing to do something.

Nothing in subsection (3) requires an employment contract that is not a collective agreement to be in writing.
Together these two provisions do a few things. Firstly they implicitly acknowledge the legitimacy of unwritten employment-related contracts under the ESA regime. Secondly they at the same time "deem" them to have been made in writing for most apparent purposes. Besides the main employment contract itself, other types of contracts which these provisions can apply to are presumably the sort of things referred to in Ch.4: ["Overtime and Hours of Work Limits"] (ie. overtime averaging agreements, hour-extending agreements, etc).

. No Contracting Out of ESA

It is a basic principles of the ESA regime that parties may not "contract out" of, or waive, its provisions [ESA s.5(1)], except to provide the employee with a greater benefit than an ESA "minimum standard" does [ESA s.5(2)].

The net effect of this is that the ESA provisions are essentially 'added', whenever necessary, to whatever employment contract (written, oral or implied) exists.

. Manner of Wage Payment

Employment types are sometimes categorized as "hourly-paid", "salaried", or otherwise. The ESA, for its regulatory purposes, operates mostly in terms of 'hours worked' and generally uses the term "wages", regardless of the way the parties have structured the manner of payment.

In common usage, the term "salary" is used generally to apply to managerial or supervisory employees, who are (generally, though not always accurately) thought to be exempt from hours of work limits and overtime requirements [see s.11: "Supervisors and Managers"].

Two other payment manner categorizations are "piecework" and "commission" paid, which are actually quite similar in nature - though the terms have quite starkly different class connotations. Garment workers often work on "piece-work" (ie. a fixed amount per unit), while tractor salesman work on "commission" (a fixed percentage of the sale price per unit).

"Bonuses" generally come in two forms: performance-determined and "gifts". The ESA [s.1(1)defns] sets out that "gifts or bonuses that are dependent on the discretion of the employer and that are not related to hours, production or efficiency" are not considered to be wages for ESA purposes. As such they do not count as credits towards fulfilment of any ESA or contractual wage duties of the employer. The classic example of this would be a regular, fixed-sum Christmas bonus.

"Performance bonuses" on the other hand, are considered wages. Further, the otherwise obsolete Employers and Employees Act [s.3,11] addresses such arrangements by clarifying that they do not create any sort of property interest in the worker:
An agreement entered into by an employee and his or her employer under which a share of the profits of any trade, calling, business or employment is to be paid to the employee in lieu of or in addition to salary, wages or other remuneration, unless the agreement otherwise provides or a contrary intention may be reasonably inferred therefrom, does not,

(a) create any relation in the nature of a partnership or the rights or liabilities of partners; or

(b) give to the employee the right to examine into the accounts or interfere in the management or affairs of the trade, calling or business.
Further, on the issue of an employee wanting proof of the profit in which they hope to share the EEA states:
Any statement or return by the employer of the net profits of the trade, calling, business or employment on which the employer declares and appropriates the share of profits payable under such agreement is final and conclusive between the parties and all persons claiming under them, and is not impeachable upon any ground, except fraud.
Employees under performance bonus arrangements should be sure to include satisfactory profit disclosure terms in their contract. Terms of the EEA may be contracted around (except by manual labourers), though it should be done expressly [EEA s.11].

. Limits of Duration of Term Contract

There is an obscure provision hidden away in the otherwise obsolete Employers and Employees Act which states that [EEA s.2]:
EEA s.2
No voluntary contract of service or indenture is binding for longer than a term of nine years from the date thereof.
Of course, this applies only to limit the terms of unrenewed, single-term contracts. Both contracts of indefinite term (ie. no term specified) that happen to run more than nine years, and longer renewed term contracts (eg. a three-year term contract renewed four times to a total of 12 years service), are likely legal under this provision.

I don't know the origins of this EEA s.2 term limit, but as it is located in old and IMHO quite otherwise obsolete legislation. Perhaps it's a sort of anti-"indentured servitude" (almost anti-slavery) provision.

(e) Parties

. Overview

Under contract law, a "party" to a contract has what is called "privity". Privity is essentially a right of "standing", the ability to take another party to court over a contractual dispute.

To illustrate the point consider the following example: your mother, no matter how upset she may be over your treatment at the hands of your business partner, cannot sue them for it - because (assuming she has no business involvement in the situation herself) she "lacks privity". Bluntly: it's none of her (legal) business and the courts do not lightly tolerate "officious intermeddlers" (a wonderful legal term for 'busybody').

Under the common law, the courts will generally include anyone with a direct legal interest in the subject-matter of a case as a party, and give them the right to full procedural participation (and risk for liability and legal costs). In the employment situation this is usually simple: employee and employer.

. Associated Employers

As noted above, in most employment relationships the party situation is usually quite simple. However, complexities do sometimes arise on the employer end. I have seen these situations arise both in business (eg. partnership employers, subsidiary corporations, etc) and non-profit employment situations (especially where external government-grant funding pays the employee directly, creating ambiguity over who has primary responsibility as the employer).

The ESA attempts to anticipate such problems, particularly where they are consciously designed as barriers to the enforcement of rights, as follows [ESA s.4]:
Subsection (2) applies if,

(a) associated or related activities or businesses are or were carried on by or through an employer and one or more other persons; and

(b) the intent or effect of their doing so is or has been to directly or indirectly defeat the intent and purpose of this Act.

The employer and the other person or persons described in subsection (1) shall all be treated as one employer for the purposes of this Act.
These provisions broadly eliminate any impediments to the application of the ESA in ambiguous situations by rendering the involved employer parties collectively responsible. Procedurally this entails including them all as parties for purposes of participation in administrative proceedings, and their joint liability for any ESA Orders [ESA s.4(5)]. Joint liability means that any ESO order would be issued against all of them, with the Ministry (or the employee) being able to collect any or all of the order from whoever they 'catch' first (but of course only until the quantum of the Order is satisfied).

These provisions apply even if "the activities or businesses are not carried on at the same time" [ESA s.4(3)]. However they do not apply to the involvement of a corporate shareholder, unless the shareholder is also a partner who is holding shares for the partnership [ESA s.4(4)].

. Corporate Director Wage Liability

On a related note, there are several statutory provisions that render directors of corporate employers jointly liable for up to six month's wages of the corporation's employees, although the provisions do not normally become effective until the corporate employer has defaulted on wages due or gone into some form of insolvency. It is only at that point that the corporate directors can be personally ordered to pay the unpaid wages - and only at that point that they can properly be considered "parties" [see Ch.7, s.4(e): "ESA Administrative Enforcement: Orders and Related Measures: Wage Compensation Orders Against Directors of Employer Corporations"].

. Continuity of Employer Through Sale

Employers sometimes sell their businesses. If the businesses are sold as "going concerns" (ie. active businesses, rather than selling off the business' working property piece by piece) then issues arise as to the status of the 'transferred' employees. These are addressed in Ch.6, s.1(e): ["Termination and Wrongful Dismissal: Overview: Continuity of Employment through Employer Status Changes"].

Note that changes in corporate employer ownership (ie. share transfers) do not have these problems as the transition is seamless. Through such transactions the employment relationships remain with the same corporation - it's only the shareholders behind it who have changed.

2. Employees of Federally-Regulated Enterprises

Employees of federally-regulated industries and enterprises, while they are partially governed under the common law, are not governed by the ESA [ESA s.3(2)]. Rather they have counterpart legislation in the form of the Canada Labour Code. Such industries include airlines, banks, broadcasting, telecommunications, shipping and most federally-regulated sectors.

It is beyond the scope of this Employment Law (Ontario) Guide to examine this law, but readers may find the below link useful:

Canada Labour Code

3. Provincial Government Employees

Most provincial government employees are unionized (OPSEU) and governed under the Public Service of Ontario Act and the Crown Employees Collective Bargaining Act, 1993. As such enforcement procedures - even for ESA rights - fall almost entirely within the labour relations realm [see s.5: "Unionized Employees", below].

That said, employment relationships where the employer is the "Crown, a Crown agency or an authority, board, commission or corporation all of whose members are appointed by the Crown" are subject to the following provisions of the ESA [ESA s.3(4)]:
  • s.14 Priority of Claims [see Ch.7, s.5(h)]
  • Part IV Continuity of Employment (through business transfer) [see Ch.6, s.1(e-f)]
  • Part XII Equal Pay for Equal Work [see Ch.3, s.9]
  • Part XIII Benefit Plans [see Ch.5, s.1]
  • Part XIV Leaves of Absence [see Ch.5, s.2]
  • Part XV Termination and Severance of Employment [see Ch.6]
  • Part XVI Lie Detectors [see Ch.5, s.3(b)]
  • Part XVIII Reprisals [except for subclause 74 (1) (a)(vii) and clause 74 (1) (b)][see Ch.9, s.2]
  • Part XIX Building Service Providers [see Ch.6, s.1(f)]

4. Federal Government Employees

Like employees of federally-regulated industries (above), federal employees are completely exempt from the ESA.

However, similar to Ontario government and related employees, federal government employees are under a special federally-designed legal regime. Readers may find the following federal government link useful:

Information for Federal Employees

It is beyond the scope of this Employment Law (Ontario) Guide to examine this subject.

5. Unionized Employees

(a) Overview

Generally, the common law and the ESA apply to unionized employees [ESA s.1(1): defns of "employment contract" and "person"] unless they are in federally-regulated industries, or work for Ontario or the federal government [see ss.2-4, above]. However in most (but not all) cases the substantive (rights) terms of collective agreements effectively exceed the minimum standards of the ESA. Procedurally, enforcement of any residual ESA rights within a union context is almost wholly governed by labour relations law (ie. the collective agreement and Ontario's Labour Relations Act.

The ability of labour relations law to exclude other law and procedures, should it 'occupy the field' with respect to any given workplace issues, has been made emphatically clear by the Supreme Court of Canada case of Weber v Ontario Hydro [1995] 2 SCR 929. In this case, an attempt by Mr Weber (a unionized employee) to sue his employer for surveillance activities they engaged in in relation to his termination was denied. The court held that all matters emanating from the collective agreement fell to be resolved under procedures established under that agreement and the Ontario Labour Relations Act.

(b) Substantive (Rights) Law

In essence then, ESA employment and minimum standards are 'grafted into' the collective agreements that unions and employers negotiate [ESA s.99(1)], although it is rare for a minimum standard to be required in a collective agreement, as terms are almost always better.

(c) Procedural Law

As noted above, enforcement of ESA rights (with one rare exception, below) is conducted through the normal labour relations enforcement procedures set out in the collective agreement and the Labour Relations Act (ie. grievance, arbitration, negotiation). As is the case with such labour procedures, the employee has no individual right to commence and conduct grievance proceedings against the employer, and must accept the union's decision to advance the matter or not [ESA s.99(2,3)]. Similarly they must accede to any union settlement of the matter [ESA s.6].

The normal route for a unionized employee who disagrees with the union's decision in this regard, as with any dispute between a union and a worker that it represents, is to file a "duty of fair representation" complaint against the union with the OLRB [ESA s.99(5)]. This 'duty' ostensibly prohibits a union from acting "in a manner that is arbitrary, discriminatory or in bad faith in the representation" of the employee [LRA s.74].

The only exception to the exclusivity of labour relations procedures over ESA matters is that the ES Director may grant special permission for a unionized employee to file and advance an ESA complaint within regular ESA procedures [ESA s.99(6)]. One possible situation in which such permission might be granted is where the union has become decertified after the ESA issues have occured, and the employee would otherwise be without a procedural remedy.

6. Diplomatic Employees

Employees of "an embassy or consulate of a foreign nation and his or her employer" are fully exempt from the ESA [ESA s.3(3)].

7. Fully ESA-Exempt Categories

Other than those already mentioned above [ss.2-6], the below-listed are fully exempt from the ESA [ESA s.3(5)]. Note however that if any of them also perform other work as an employee, then the ESA still applies - on its normal terms - to that other work [ESA s.3(6)]:
  • Work Experience Students

    A secondary school student who performs work under a work experience program authorized by the school board that operates the school in which the student is enrolled.

  • Some College Program Workers

    An individual who performs work under a program approved by a college of applied arts and technology or a university.

  • Ontario Works Workfare Participants

    A participant in community participation under the Ontario Works Act, 1997. [see Welfare (Ontario Works) Law Guide, Ch.11: Workfare]

  • Prisoners in Work or Rehab Programs

    An individual who is an inmate of a correctional institution within the meaning of the Ministry of Correctional Services Act, is an inmate of a penitentiary, is being held in a detention facility within the meaning of the Police Services Act or is being held in a place of temporary detention or youth custody facility under the Youth Criminal Justice Act (Canada), if the individual participates inside or outside the institution, penitentiary, place or facility in a work project or rehabilitation program.

  • Court-ordered and YCJA Work

    An individual who performs work under an order or sentence of a court or as part of an extrajudicial measure under the Youth Criminal Justice Act (Canada).

  • Simulated Rehab "Work"

    An individual who performs work in a simulated job or working environment if the primary purpose in placing the individual in the job or environment is his or her rehabilitation.

  • Political, Religious or Judicial Office-Holders

  • Members of a Quasi-Judicial Tribunal

    Such as the OLRB, the Social Benefits Tribunal, Human Rights Tribunal of Ontario, the Landord and Tenant Board, and similar bodies.

  • Elected office-holders in organizations, including trade unions.
Continue Chapter Here ...


The author has waived all copyright and related or neighboring rights to this Isthatlegal.ca webpage.

Last modified: 12-01-23
By: admin