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Employment Law (Ontario)
(01 January 2016)

Chapter 9 - ESA Offences and Contraventions

  1. Overview
  2. Reprisal and Related Remedies [s.104 Orders]
    (a) General
    (b) The s.104 Categories of Contravention
    (c) Reprisals
    (d) The s.104 Remedies
    . Loss Compensation
    . Employment Reinstatement and "Orders to Hire"
    (e) s.104 Order Procedures
    (f) Refusal to Issue Order
    (g) Settlement
  3. Notices of Contravention
    (a) General
    (b) Grounds
    (c) Limitation Periods
    (d) Issuance
    (e) Service
    (f) Deemed Contraventions
    (g) Penalties
    (h) Collection
    (i) Exceptions
    (j) OLRB Reviews
  4. Prosecutions
    (a) Overview
    (b) Part I and Part III POA Procedures
    (c) Legal Elements of the Offence
    (d) "Omnibus" Offence
    (e) Consequences of Conviction
    . POA Part I Offences
    . POA Part III Offences
    . Compensation Orders
    . Publication
    (f) Remedial Orders Where Reprisal Conviction
    (g) Corporate Personnel Offences
    . General
    . Personnel Participation in a Contravention
    . Director Breach of ESA Director Order
    (h) Employment Standards Officer (ESO) Offences
    (i) Procedural Variations
    . General
    . Venue and Adjudicator
    . Limitations
    . Evidence
________________________________________

Important Note:
The Employment Standards Act (ESA) is riddled with many full and partial exemptions to it's provisions, as well as numerous 'special rules' for various industries or types of work. While I may note these variations throughout this Employment Law (Ontario) Guide when explaining individual topics generally, readers facing a specific fact situation should carefully review Ch.1 "Primary, ESA-Special and ESA-Exempt Employment Sectors" to determine if their specific employment situation is governed by any of these exemptions or special rules.

1. Overview

Like most administrative regimes in Ontario, the Employment Standards Act (ESA)creates several "offences" that can be prosecuted under the Ontario Provincial Offences Act (POA) (sometimes called "quasi-criminal" offences). In form these are much like criminal offences such as can be prosecuted under the federal Criminal Code, but in significance they are usually closer to the more familiar "ticket" under the Highway Traffic Act (which is also prosecuted under the POA). In part, this chapter discusses and explains these offences, which are concerned with punishment of illegal ESA-related activities or omissions.

Also discussed in this chapter are some important new forms of administrative "Notices of Contravention" - a sort of "administrative fine".

Lastly, in addition to the primary ESA wage and compliance Orders explained in Ch.7 ["ESA Administrative Enforcement"], there are some special - though narrowly-applicable - "reprisal"-related remedies for employees, triggered by contravention of a narrow list of employer duties. These procedures are unusual in both their triggering circumstances and in range of remedy, which include compensation for loss - and reinstatement of - employment, as well as 'orders to hire' in some cases.


2. Reprisal and Related Remedies [s.104 Orders]

(a) General

In addition to the wage compensation remedies discussed in Ch.7, s.4(c) ["ESA Administrative Enforcement: Orders and Related Measures: Wage Compensation Orders"]the ESA has established additional specialized remedies where an ESO finds contraventions of certain type categories of ESA rights [ESA s.104]. These special remedies include compensation to the employee for "losses" stemming from the contravention - and the unique remedy of reinstatement of employment, which has only been available to date under labour relations (union) law, and far less frequently under Ontario's weakly-administered Human Rights Code regime.

(b) The s.104 Categories of Contravention

The specific categories of ESA contraventions which trigger entitlement to these s.104 remedies are listed below, noted by the "Parts" (major divisions) of the ESA in which they are located. The substantive (rights) law for the last three categories in this list are explained in other chapters as per the noted references, while the substantive law regarding "reprisals" is explained immediately below in [(c)].
  • "Reprisals" [Part XVII, s.74]
    (explained below).

  • Leaves of Absence [Part XIV, ss.45-53]

    Leaves of Absence are discussed at Ch.5, s.2: "Benefits Plans, Leaves and Other Employee Rights: Leaves of Absence".

  • Lie Detectors [Part XVI, ss.68-71]

    Lie detector ESA law is discussed at Ch.5, s.3(b): "Benefits Plans, Leaves and Other Employee Rights: Other Employee Rights: Lie Detectors".

    Note that special rules - which actually allow an ESO to order an employer to HIRE an employment or police officer candidate - can also apply to breaches of the lie detector provisions [ESA s.104(2)].

  • Retail Business Establishments [Part XVII, ss.72-73]

    Special rules applicable to holidays and retail business establishments under the Retail Business Holidays Act [RBHA] are discussed at Ch.3, s.3(c) "Wages, Holidays and Vacations: Public Holiday Entitlements: When Workers Can and Cannot Refuse to Work Holidays and Sundays: Special RBHA Work Rule".
(c) Reprisals

As noted above, also included in the s.104 contraventions are "reprisals", which generally are just that: punitive or intimidating reactions by an employer to an employee exercising their legal employment rights.

More specifically, it is a reprisal contravention for an "employer or person acting on behalf of an employer [to] intimidate, dismiss or otherwise penalize an employee" or to threaten to do so, because the employee has done ANY of the following [ESA s.74(1)]:
  • asked the employer to comply with this Act and the regulations,

  • makes inquiries about his or her rights under this Act,

  • files a complaint with the Ministry under this Act,

  • exercises or attempts to exercise a right under this Act,

  • gives information to an employment standards officer (ESO) (ESOs are explained in Ch.7),

  • testifies or is required to testify or otherwise participates or is going to participate in a proceeding under this Act,

  • participates in proceedings respecting a by-law or proposed by-law under section 4 of the Retail Business Holidays Act,

  • is or will become eligible to take a leave, intends to take a leave or takes a leave under Part XIV [leaves are addressed in Ch.5, s.2].
Punitive or intimidating reactions are also contraventions if engaged in "because the employer is or may be required, because of a court order or garnishment, to pay to a third party an amount owing by the employer to the employee." These are situations where the employee is a judgment debtor and the judgment creditor is 'executing' against his paycheque by garnishment, compelling the employer to pay money to the court for the creditor. Garnishment procedures are explained in the Isthatlegal.ca Small Claims Court Guide chapter on Collections.

(d) The s.104 Remedies

. Loss Compensation

Under s.104, ESOs may order compensation to the employee for "any loss he or she incurred as a result of the contravention". This provision has a different and broader range of compensation than the typical wage Orders discussed in Ch.7 ["ESA Administrative Enforcement"]. The term "loss" invites the employee to claim additional losses, more in the nature of damages that a party might seek in civil court. These extend beyond past wage compensation to losses for such things as:
  • disbursements (out of pocket expenses such as moving expenses, job search expenses);

  • comparative future loss of wages (for an indeterminate period), for example if a termination has occured and the employee's replacement job pays less;

  • pain and suffering damages.
The civil category of "punitive damages" would not likely be available under this provision as they are "punitive" as opposed to "compensatory", but there is a closely-related category of compensatory damages known as "aggravated damages" which might achieve the same purpose. A general exposition on the categories of civil damage claims is found in the Isthatlegal.ca Small Claims Court (Ontario) Guide, Ch.8: Pleadings, s.2 [see sub-section (n)].

It is conceivable that a wage compensation component might be included in a s.104 compensation Order, as the term "loss" is broad enough to capture it. However for such purposes it might be more likely for an ESO to issue a "usual" s.103 wage compensation Order, in conjunction with any s.104 Orders [see Ch.7, s.4(c): "Administrative Enforcement: Orders and Related Measures: Wage Compensation Orders"].

Compensation Orders under s.104 are made payable to the Director in trust for the employee, and are subject to an "order surcharge" in the greater amount of: $100 or 10% of the Order amount [ESA s.104(3)].

. Employment Reinstatement and "Orders to Hire"

As noted above, the full reinstatement of employment after an employer's wrongdoing or contravention is unheard of under the common law. The common law has overwhelmingly focussed itself on the peripheral interest of an employee to receive sufficient notice of termination to enable them to obtain replacement employment and/or wage compensation for the period that such notice was short.

Statutory exceptions to date have allowed reinstatement only rarely in labour relations and human rights situations. To these situations have now been added ESA contraventions falling into the reprisal-type categories listed above.

That said, the longstanding cultural and legal reticence against compelling unwilling associations will still likely inhibit robust application of this ESO reinstatement remedy. This will particularly be the case in small workplaces and elsewhere where employer and employee must work face-to-face.

Note that special rules - which actually allow an ESO to order an employer to HIRE an employment or police officer candidate - can also apply to breaches of the lie detector provisions [ESA s.104(2)].

(e) s.104 Order Procedures

Compensation and/or reinstatement Orders issued under s.104 are subject to the some of the same procedural provisions (with necessary modifications) as are s.103 wage compensation Orders [ESA s.104(4)]. See generally the following sub-headings in Ch.7, s.4(c): "Administrative Enforcement: Orders and Related Measures: Wage Compensation Orders":
  • Reasons for Order,
  • Service of Orders,
  • Verification of Service, and
  • Finality
Interestingly, s.104(4) does NOT adopt s.103(4) [no ESO order over $10,000 per employee] with respect to s.104 Orders, suggesting plainly (absent any other similar limitation) that s.104 Orders are NOT meant to be limited to $10,000 in quantum. As well, one s.104 Order may apply to more than one employee [ESA s.103(3)].

Note further that the onus of proof in any of these s.104 reprisal proceedings which normally lies with the party initiating the allegation or complaint) is reversed, and is placed on the employer against whom the allegation is made [ESA s.74(2)].

(f) Refusal to Issue Order

If an employee alleges facts in a complaint which could - if substantiated (ie. "on their face") - result in a s.104 order, and the ESO refuses to issue such an Order, then that refusal decision must be served on the employee by letter. This is done either personally or under s.95, in the same fashion as wage compensation Orders are served on employees [see Ch.7, s.4(c) "Administrative Enforcement: Complaint Resolution Orders and Related Measures: Wage Compensation Orders: Service of Order"]. Typical service will be by mail.

Similarly, a two-year delay by the ESO in making any decision on such a complaint (ie. issuance or refusal) shall be deemed to be both a refusal made at the last day of the two year period AND service of the required refusal letter on the employee [ESA s.110(2)].

(g) Settlement

Party-party settlements of s.104 proceedings are possible. The procedures and rules governing them are discussed in Ch.7, s.4(f): "Administrative Enforcement: Orders and Related Measures: Party-Party Settlements".


3. Notices of Contravention

(a) General

"Notices of Contravention" [hereafter "NoCs" or "Notices"] are essentially a form of administrative fine applied where an ESA contravention is thought to have occured. While (classically) fines have only emanated from quasi-criminal prosecutions [see s.4, below], the effort and difficulty of such prosecutions has spawned a drive to such administrative alternatives as a more efficient economic "punishment" for contraventions of regulatory schemes.

Being "fines", they are payable to the Minister of Finance (basically: the province), not to the employee who was subjected to the contravention [ESA s.128(2)]. That is (with the exception of 'tacked on' court-related costs), they are punitive in nature - not compensatory to the employee. Compensation is left to the wage and compensation Orders otherwise explained in this Guide [esp. s.2 above and Ch.7].

Note that Notices of Contravention may be issued against an employer with respect to a contravention in addition to the parallel issuance of any wage, fee reimbursement, compensation or compliance Orders [ie. under 74.14, 74.16-74.17, 103, 104 and 108] or prosecutions respecting the same contraventions [ESA s.113(7)].

Note further that the "Review" procedures for Notices of Contravention are distinct from those that apply generally to "Orders" [see Ch.8, s.13: "OLRB Procedures Regarding ESA Matters: Notice of Contravention Reviews"].

(b) Grounds

The grounds and basis upon which an ESO may issue a Notice are broad, being their "[belief] that a person has contravened a provision of this Act" [ESA s.113(1)]. That includes practically any violation of an ESA legal duty set out in this Guide.

While - theoretically - any minor variation from strict ESA-imposed duties could trigger the issuance of a Notice, in practice the contraventions which can attract it are aggregated and set out in the Regulation which sets the fines corresponding to each category of contravention (see below discussions).

(c) Limitation Periods

Note that Notices of Contravention proceedings are subject to SOME of the limitation periods that apply generally to ESO Orders, as set out in Ch.7, s.3 ["ESA Administrative Enforcement: Limitations"]. These are explained at that reference in subsections (c) "Two Year General Limitation Period on Filing" and(d) "Two Years After Complaint or Inspection General Limitation Period on Orders and Notices of Contravention"].

Further, without the subject employer's consent, no notice of contravention may be amended or rescinded after the second of these limitation periods has expired [ESA s.114(5)].

(d) Issuance

Formal "Notices of Contravention" must set out [ESA s.113(1-2)]:
  • the fact of the belief regarding the contravention;

  • "information setting out the nature of the contravention." (or be accompanied by it);

    This requirement is likely to be read by ESA staff to require simply a brief phrase stating the type of contravention alleged. Alone it is not strong enough to support any requirement for reasons or facts underpinning the allegation or belief.

    That said, "natural justice" will likely require more, and the adequacy of such "reasons" will no doubt be a prime area of challenging NoCs. Generally on this issue readers may want to review Ch.7, s.4(c): "ESA Administrative Enforcement: Orders and Related Measures: Wage Compensation Orders: Reasons for Order", and the link it makes to a relevant ODSP case [Gray].

  • the penalty set out for the contravention [from the Regulations [see (g) "Penalties", below)].
(e) Service

Notices of Contravention must be served on employers in accordance with the general ESA service rules set out in Ch.7, s.7 [ESA 113(3)].

(f) Deemed Contraventions

The employer upon whom a Notice of Contravention is served shall be "deemed" to have contravened the provision alleged IF they fail to apply for a Review [see Ch.8, s.13: "OLRB Procedures Regarding ESA Matters: Notice of Contravention Reviews", within 30 days of the service of the Notice, or within such extended time as the Board allows [ESA s.112(1), 113(5)]. Of course, this is also the case if the Review confirms the contravention.

Further, for a limited class of "reprisal"-type contraventions [ie. reprisals, leave, lie detector and retail business holidays], the onus of proof in ANY ESA proceeding (which normally lies with the party initiating the allegation or complaint) is reversed, and is placed on the employer against whom the allegation is made [ESA s.74(2)]. These reprisal-type contraventions are listed and explained in s.2: "Reprisal and Related Remedies", above.

(g) Penalties

Where a contravention has been committed, the employer must pay an administrative fine to the Minister of Finance within 30 days of the 'deeming" - or confirmation (after Review) - of the contravention.

The NoC fines are in accordance with the below chart, which includes increases for repeated contraventions. In addition, added to the fines are "any collector's fees and disbursements added to the amount under subsection 128 (2)" [ESA s.113(6-6.1)] [on added fees and disbursements, see Ch.7, s.5(c): "ESA Administrative Enforcement: Payment and Collection of Orders: Collection Methods: Collector Fees and Disbursements"].

I list and label contraventions here - as they are categorized in the legislation, citing the corresponding ESA provisions and fine amounts [Reg 289/01]:

ContraventionESA Section1st Contravention2nd Contravention *13rd & Further Contraventions *1
Posterings.2$250$500$1000
Maintenance of Employee Recordss.15$250$500$1000
Maintenance of Vacation Recordss.15.1$250$500$1000
Records Available for Inspections.16$250$500$1000
ANY Other Contravention not listed above *2.....$250$500$1000

Note 1: "Additional" contraventions only count as such if all contraventions are within a three year period.

Note 2: The 'other contravention' fines are PER EMPLOYEE AFFECTED.

(h) Collection

Note that the collection procedures established for regular ESO Orders -particularly the "predominant" method of filing them with the civil courts for enforcement - also apply to collection of amounts assessed under Notices of Contravention [ESA s.126(4); see Chapter 7, s.5(c): "ESA Administrative Enforcement: Orders and Related Measures: Collection Methods"].

(i) Exceptions

Note that the "Notice of Contravention" procedures do NOT apply to contraventions respecting employees who are represented by trade unions (ie. in unions) [ESA s.113(8)], nor against directors or officers of a corporate employer [ESA s.113(9)].

(j) OLRB Reviews

Notices of Contravention are subject to Review before the Ontario Labour Relations Board. Procedures for such Reviews are discussed in Ch.8, s.13: "OLRB Procedures: Notice of Contravention Reviews".


4. Prosecutions

(a) Overview

The Employment Standards Act establishes a large number of prosecutable offences to aid in enforcement of its provisions. These belong to a larger family of offences called "provincial offences" (which are distinct from federal criminal offences) and are prosecuted by procedures under the Provincial Offences Act.

They are also sometimes referred to as "quasi-criminal" offences, and are legally treated in the same general category as highway traffic or environmental offences.

Private prosecution of these offences is possible but procedures for this are beyond the scope of this program.

(b) Part I and Part III POA Procedures

The Ministry tends to split treatment of such offences into two categories, distinguished by their degree of seriousness. Firstly, POA Part I procedures allow for the issuance of "tickets" (aka "offence notices") under Part I of the POA. Such "tickets" are similar in form to those used for Highway Traffic Act offences. The set fine for Part I offences is presently [January 2008] $295:

Ontario Court of Justice: Set POA Fines

For more serious matters, Part III of the POA provides procedures for the commencement of prosecutions by the laying of an "information", which is either preceded or followed by the issuance of a "summons" requiring attendance at court. The "information" process is much more akin to the standard criminal prosecution, although POA matters overall are considered to be less serious overall than 'true' criminal matters. Part III penalties are explained below ["Consequences of Conviction"].

(c) Legal Elements of the Offence

Like criminal offences, ESA offences are comprised of two legal elements: the mental element (mens rea), and the act or omission (the behavioural) element (actus reus). An omission generally can satisfy the actus reus requirement if the person was under a legal duty under the Employment Standards Act to act, but failed to do so.

All of the offences listed in the Employment Standards Act are what are called "strict liability" offences. This means that the mental element (mens rea) is different from the "full" mental intent normally required for criminal offences. The strict liability standard is used for any POA matters unless the offence specifies that the defendant must have "knowingly" perform the act or omission which constitutes the behavioural element of the offence (ie. this "knowingly" requirement is not a part of the POA ESA offences).

"Strict liability" means that, on proof of the commission of the behavioural element of the offence alone, the mental element will be presumed in law - subject to the defendant proving - on a balance of probabilities (ie. more likely than not) - that they acted with "due diligence" to avoid committing the offence. These are sometimes also called "negligence" offences, with a "due diligence" defence.

Note additionally that for a limited class of "reprisal"-type contraventions [ie. reprisals, leave, lie detector and retail business holidays], the onus of proof in any ESA proceeding (which normally lies with the party initiating the allegation or complaint) is reversed, and is placed on the employer against whom the allegation is made [ESA s.74(2)]. These reprisal-type contraventions are listed and explained in s.2: "Reprisal and Related Remedies", above.
Note:
I have a hard time believing that s.74(2) could apply in the context of a prosecution as it so offends the general presumption of innocence so prevalent in Canadian criminal and quasi-criminal law. I did find it successfully applied in a non-prosecution context against an employer to uphold an ESO's reprisal Order(confirmed in part by the OLRB on Review) in the case of Hawrylshyn (cob Square One Dental Centre) v Ontario (Director of Employment Standards) [2005] OJ #1668(Quicklaw) (Div Ct).
(d) "Omnibus" Offence

The ESA makes it an offence to contravene practically any provision of the ESA or any "order, direction or other requirement" made pursuant to ESA authority. More specifically, the behavioural element of this 'omnibus' offence is committed when someone "contravenes this Act or the regulations or fails to comply with an order, direction or other requirement under this Act or the regulations" [ESA s.132].

This generality makes the list of potential ESA offences very large. That said, a standard list of ESA "charge phrases" set out in the POA is linked here:

POA Reg 950/90, Schedules 4.2 - 4.4

In considering any prosecution situation, readers should of course review in this Guide the subject topic of the prosecution - as well of course the original ESA Act and Regulation provisions cited.

(e) Consequences of Conviction

. POA Part I Offences

The set fine for Part I tickets is $295, plus court costs - and possibly a victim surcharge.

. POA Part III Offences

The penalties for a Part III POA conviction of an individual are a fine of up to $50,000 and/or up to 12 months in jail [ESA s.132].

The penalties for a Part III conviction of a corporation are a fine of up to [ESA s.132]:
  • $100,000 for a first offence;

  • $250,000 where there is one previous conviction ("under this Act or a predecessor to it"); and

  • $500,000 where there are two or more previous convictions ("under this Act or a predecessor to it").
. Compensation Orders

Where there has been a conviction for any ESA offence [except for the "reprisal"-type offences listed at (i) and (ii) in (f) below], the convicting court "shall" (ie. must) also "assess any amount owing to an employee affected by the contravention and order the employer to pay the amount assessed to the Director" [ESA s.135(1)].

Such compensation Orders may be collected by the Director using the same methods otherwise available to them [ESA s.135(2,3); see Chapter 7, s.5(c): "Administrative Enforcement: Payment and Collection of Orders: Collection Methods"].

. Publication

In addition to the above sanctions on conviction of an ESA offence, the ES Director may publish (as they see fit, including on the internet) the identity of the convicted, details of the offence, the date of the conviction and the sentence handed down [ESA s.138.1].

(f) Remedial Orders Where Reprisal Conviction

Where there has been conviction for any of the following offences, the convicting court "shall" (ie. must) also "order that the employer take specific action or refrain from taking specific action to remedy the contravention" [ESA s.133(1)]:
  • (i) a general "reprisal" offence [ESA s.74; see s.2 above];

  • (ii) being a temporary help agency employer and [ESA 74.8(1)4,6,7,10; see Ch.1, s.13(d)]:

    • restricting an assignment employee of the agency from entering into an employment relationship with a client;

    • restricting a client from providing references in respect of an assignment employee of the agency;

    • restricting a client from entering into an employment relationship with an assignment employee; or

    • imposing a restriction that is prescribed as prohibited.

  • (iii) being a client of a temporary help agency and committing a Part XVIII.1 reprisal offence [ESA 74.12; see Ch.1, s.13(g)].
Such 'reprisal' Orders may take the following forms, though they are not restricted to these forms [ESA s.133(2)]:
  • payment of wage compensation to the employee,

  • payment of the employee's losses respecting the contravention, and/or

  • if the conviction is under (i) or (iii) above, reinstatement of the employee to their job.
As well, if the 'reprisal' offence was regarding the lie detector prohibitions as they relate to employment and police officer applicants, then the 'reprisal order' "may" (ie. it is discretionary to the court) also "require that the employer hire the applicant or compensate him or her or both hire and compensate him or her" [ESA s.133(3)] (ie. an "order to hire").

Contravention of any such 'reprisal' remedial Order is itself an offence [ESA s.134]. The penalty for such an offence is:
  • for an individual, a fine of up to $2,000/day of the contravention and/or up to six months imprisonment;

  • for a corporation, a fine of up to $4,000/day of the contravention.
(g) Corporate Personnel Offences

. General

Personnel (officers, directors and agents) of corporate employers have further prosecution liability over and above that to which employers (individual and corporate) are directly subject. These offences relate to their responsibility to ensure that the corporate employer comply with ESA law, and with any ESA Orders.

. Personnel Participation in a Contravention

Firstly - where a corporate employer contravenes any ESA provisions (regardless of whether the employer is convicted of such an offence) - any "officer, director or agent of the corporation or a person acting or claiming to act in that capacity who authorizes or permits the contravention or acquiesces in it is a party to and guilty of the offence" [ESA s.137(1,2,4)]. The phrase "is a party to" is a term in criminal law which means that the main offence provision applies directly to 'party' perpetrator, and they can be charged under the main offence. In this case, it means that the personnel are subject to the same fines and compensation orders that a corporation would be [see (d) "Consequences of Conviction", above].

In such a prosecution, the corporate personnel are subject to a "reverse onus" provision, meaning that they must prove that they did NOT "not authorize, permit or acquiesce in the contravention" [ESA s.137(3)].

The launching of a prosecution against corporate personnel requires the consent of the ESA Director, which may be proven by written document to that effect [ESA s.137(6,7)].

. Director Breach of ESA Director Order

Directors of corporate employers who "fail to comply" with a an ESA "Director" Order (ie. an ESO Order against them AS a corporate Director) for which either: a Review has not been applied, or for which a Review has upheld or revised an Order, are guilty of an ESA offence [ESA s.136(1)]. ESO Orders against corporate Directors are discussed in Ch.7, s.(e): "ESA Administrative Enforcement: Orders and Related Measures: Wage Compensation Orders Against Directors of Employer Corporations".

The penalty for such an offence is a fine of up to $50,000 [ESA s.136(2)].

(h) Employment Standards Officer (ESO) Offences

As the "omnibus" offence provision renders ANY contravention of the ESA to be a prosecutable offence, this can apply to ESOs as well for any breach of THEIR duties as set out in the legislation.

In particular, an ESO can be prosecuted for violating "policies" set down by the ESA Director [ESA s.89(2), 137.1(1)] - although in this case only with the consent of the Deputy Attorney General, which may be proven by written document to that effect [ESA s.137.1(2)]. This is a harsh power for what at most amounts to a staff discipline issue - or at its least (and worst) a legitimate disagreement over legal interpretation. Conceivably an ESO could be convicted under this provision EVEN IF their interpretation and application of law - though it contravened Ministry policy - was in fact legally correct.

(i) Procedural Variations

. General

Generally, the procedure and conduct of an ESA prosecution is governed by the Provincial Offences Act ("POA"). Below however are listed some minor variations from the normal POA procedures.

. Venue and Adjudicator

The POA normally provides that trials are heard in the court for the region in which the offence occured, and may be heard either before a JP (Justice of the Peace) or a full criminal court judge.

However, with ESA prosecutions the (private or public) prosecutor may require that the matter be tried in the court for the region in which the defendant resides [ESA s.138(1)]. Further, and the Attorney-General (directly or through their agent) may require that the matter be tried by a judge (and not a JP) [ESA s.138(1,2)].

. Limitations

No prosecution for an ESA offence may be commenced more than two years after the "date on which the offence was committed or alleged to have been committed" [ESA s.139].

. Evidence

Except as noted below, prosecution of ESA offences will use evidence rules normally accepted in Provincial Offences matters.

In an ESA prosecution, copies of signed ESA Orders or notices of contravention are acceptable proof "of the order or notice and of the facts appearing in it" (ie. originals are not required) [ESA s.140(1)].

In an ESA prosecution, copies or extracts of records or other documents certified by an employment standards officer, or signed by the ES Director - as the case may be - are acceptable proof "of the record or document or the extracted part of the record or document and of the facts appearing in the record, document or extract" (ie. originals are not required) [ESA s.140(2-5)].
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