On November 29, the Open for Business
Act was proclaimed into force in Ontario.
Schedule 9 of the Act amends certain provisions of the Employment Standards Act,
2000(the ESA) allowing for
changes to the employment standards claim process to be implemented
on January 19, 2011.
The amendments are aimed at reducing and eliminating the current
backlog of employment standards complaints by encouraging early
resolution. This is to be accomplished in one of three ways: (i)
completion of certain steps by a complainant before assignment of
the complaint to an Employment Standards Officer; (ii) an
Employment Standards Officer's power to assist parties to
settle complaints; and (iii) an Employment Standards
Officer's power to decide complaints where a party fails to
discharge certain obligations.
1) Completion of steps before assignment of complaint to an
Employment Standards Officer (Officer)
Previously, once a complaint was filed it was immediately
assigned to an Officer for investigation. Now, a complainant must
complete the following steps before his or her complaint will be
assigned to an Officer:
(a) Notify his or her employer of the complainant's
belief that his or her rights under the ESA have been, or
are being, violated by the employer. This notification does not
have to be done face-to-face, as the complainant may contact the
employer through regular mail, email, fax or phone.
(b) Inform the Director of Employment Standards in writing that
he or she has notified the employer of his or her position that
their ESA rights have been or are being violated, and
advise the Director as to the information provided in the notice
given to the employer; the way the information was provided; and
the employer's response, if any.
(c) Provide the Director with any evidence and/or written
information the Director requires of the complainant.
If the complainant fails to do so, the Director will inform the
complainant that the complaint has not been assigned to an Officer.
If the above criteria are still not met within six months of the
filing of the complaint, an Officer shall be deemed to have refused
to issue an order in respect of the complaint.
2) Power of Officer to settle complaints
Under the amendments, an Officer is allowed to assist employers
and employees reach a settlement. This process is completely
voluntary, however if a settlement is reached and the parties
involved fulfil their respective obligations, the complaint is
deemed to have been withdrawn and the Officer's
investigation is terminated. In addition, any proceeding respecting
the complaint is terminated, other than a prosecution.
3) Power of Officer to decide a complaint when a party fails to
discharge certain obligations
The amendments give an Officer additional powers of
decision-making meetings. Under the current ESA regime, an
Officer may require that the parties attend a decision-making
meeting. Parties are given 15 days written notice, and an Officer
may instruct the parties to make various documents and records
available for the meeting. In addition to these powers, the new
amendments permit an Officer to require that parties provide
evidence or submissions within a specified timeline set out in the
notice. If a party fails to abide by these obligations, or fails to
attend the decision-making meeting, the Officer may rule on the
complaint in the absence of the party and/or the submissions or
evidence requested. Officers will consider any evidence or
submissions of parties up to or during the meeting in making their
decision, along with any other considerations they deem
While their ultimate effectiveness remains to be seen, the
amendments have the potential to reduce the backlog currently
experienced by the Ministry of Labour. Of potential benefit to
employers is the mechanism for the early resolution of employments
standards disputes. However, we counsel employers to thoughtfully
respond to employee's concerns regarding their statutory
entitlements, so as to avoid unnecessary ESA complaints.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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