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Employment - ESA - Interpretation. Stock Transportation Ltd. v. Llanos
In Stock Transportation Ltd. v. Llanos (Div Court, 2023) the Divisional Court considered the employee-generous statutory interpretation to be applied to the ESA:[25] The Court of Appeal relied on the principle in the Supreme Court of Canada decision of Machtinger v. HOJ Industries Ltd. 1992 CanLII 102 (SCC), [1992] 1 S.C.R. 986, that an interpretation of s. 13 (now s. 9) of the ESA that extended protection to as many employees as possible is to be favoured over an interpretation that does not, and that applying the “going concern test” would have the opposite result. (para 19). The Court further stated:[20] ... while the "going concern" test has been used by the Ontario Labour Relations Board in decisions dealing with the meaning of sale of a business under the OLRA, we are not persuaded that that means that it is appropriate that the same test should be used under the ESA. We note that "business" is not defined in the OLRA, whereas it is broadly defined in the ESA. More importantly, the two legislative regimes target different issues. As noted in Metropolitan Parking, the OLRA regime is aimed, at least in part, at providing for the continuity of relationships between unions and employers in the context of the sale of a business. By way of contrast, the purpose of the ESA regime is to protect individual rights and to preserve continuity of seniority. Viewed in this context, in our view, the meaning of business in s. 9 of the ESA is to be given an expansive interpretation.
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