Canada: Beyond "9 To 5": Understanding Ontario's Overtime Rules

Last Updated: September 25 2019
Article by Mary Lou Brady

Aside from some "tweaks", not much has changed when it comes to the Ontario's overtime rules1 in many years.  Why then do I see so much employer non-compliance?  Are employers unaware of their overtime rights and responsibilities?  Or do they simply choose not to comply and hope no one complains?

For those employers into the former category, this blog is for you. 

What is the Basic Overtime Rule?2

Employees must be paid overtime pay for each hour worked in excess of 44 hours in a given workweek.3  The rate of overtime pay is 1.5 times the employee's regular hourly wage rate.

A workweek is any recurring period of seven consecutive days selected by the employer for the purpose of scheduling work.  The ESA uses 12:00 am each Sunday to 11:59 pm the immediately following Saturday as the default workweek when the employer has not selected one.

Does Everyone Get Overtime Pay?

Almost.  There are surprisingly few exemptions to overtime under the ESA and they are narrowly interpreted.

One of the more common exemptions are for managers and supervisors.  However, it applies only if they do not perform non-managerial and non-supervisory tasks on more than an exceptional or irregular basis.

Similarly, another common exemption is for salespersons, but only if: (a) they are paid in part by way of commissions for sales of products and services; (b) these sales are normally made away from the employer's place of business; and (c) they are not a route salesperson.

Other common exemptions include information technology professionals, teachers, farm workers, regulated professionals like doctors, dentists, lawyers, public accountants, engineers, etc. 

But Salaried Employees Must be Exempt?

Not true.  Whether someone is paid a fixed salary or by the hour has no impact on whether they are exempt or not from overtime under the ESA.  To be exempt, they must fall within one of the regulated exemptions.

But Highly Paid Employees Must be Exempt?

Not true.  It does not matter how much someone is paid.  Even highly compensated employees are entitled to overtime under the ESA, unless they fall within one of the regulated exemptions.

But What If the Employee Agreed Not to Get Overtime when Hired?

It likely won't matter.  The agreement will not be enforceable, unless the person falls within one of the regulated exemptions.  This is because it's not possible for an employer and employee to "contract out of" the overtime entitlements under the ESA.  Either the provisions apply or they do not.

But What If I Didn't Know About the Overtime Hours?

Generally, if an employer knows, or reasonably ought to know, about overtime hours being worked, then these are overtime hours that must be compensated under the ESA.  If an employee were to secretly work extra hours – let's say by bringing home work to get caught up in order to avoid having the employer know she is struggling with workload, or to spend extra time preparing for an important customer presentation in order to make a good impression – then it may be that these hours do not attract overtime.  What cannot, however, happen is for an employer to effectively permit an employee to perform overtime work by being "willfully blind" to the overtime hours being worked in the hopes of avoiding owing overtime.

But What If I Never "Approved" the Overtime Hours?

Many employers have a policy that requires management approval of overtime before it can be worked.  When that doesn't happen, you can discipline the employee for working unapproved hours.  But you cannot refuse to provide the employee with his/her overtime entitlements under the ESA if you knew, or reasonably ought to have known, that the overtime hours were being worked.

Do I Count Everything When Calculating Overtime Hours?

All hours worked must be included when determining overtime, except for hours worked on a public holiday if the employee was already paid premium pay for those hours.  Also note that time taken off work as an eating period – whether paid or unpaid – does not count toward overtime.

Can I Provide Lieu-Time Instead of Overtime Pay?

Yes, but only if the employee has agreed to this either electronically or in writing.  Further, the lieu-time must be at the rate of 1.5 hours of paid time off work for each overtime hour worked.  It must be taken within 3 months after it was earned, unless the employee has agreed – again either electronically or in writing – to take it within 12 months after it was earned.4

Are There Other Ways to Reduce Overtime Obligations?

Yes.  The ESA allows employees and employers to enter into agreements, either electronically or in writing, to work excess hours (i.e. more than 8 hours, or their regular workday if longer, in a day; more than 48 hours in a workweek), and to have working hours averaged over periods of up to four weeks for the purpose of calculating overtime entitlements.5  By way of example, where such agreements exist, an employee who works 40 hours in Weeks 1 and 2, 44 hours in Week 3 and 50 hours in Week 4 would not be entitled to overtime compensation as not more than 176 hours were worked in that 4-week period.

Until recently with the passage of Bill 66, the Restoring Ontario's Competitiveness Act 2019, approval from the Director of Employment Standards was required if employers needed employees to work more than 48 hours a week.  Approval was also required if employers wanted to average hours worked over two or more consecutive weeks in order to reduce the cost of overtime.

Since Bill 66 received Royal Assent on April 3, 2019, those approvals are no longer required.  In our experience, the Director typically approved requests for excess hours and/or overtime averaging, so in our view, the removal of this bureaucratic requirement is unlikely to significantly change most employer workplaces.  That said, we do expect removal will result in more employers taking advantage of overtime averaging.

Ooops!  After Reading This, I Think I Owe Overtime.  What Do I Do?

Good question.

To start, contact your employment lawyer to assess the overtime liability and to help you understand your various options, which – depending on your risk profile – may range from continuing with the status quo to back-paying some or all unpaid overtime.

When deciding on course of action, it is important to understand that, for the most part, the ESA is a complaint-driven system.  While there are occasional spot audits by Employment Standards, most situations of non-compliance come to the attention of Employment Standards only when a complaint is made.

Further, there are limits on how far back an Employment Standards Officer can order unpaid overtime to be paid.  Such order can only include overtime pay that became due no earlier than 2 years before the complaint was made or before the matter otherwise came to the officer's attention.  Once outside of the 2-year limit, options are limited on how to recover the older unpaid overtime.  

One strategy, therefore, is to continue with the status quo of non-compliance until caught.  This is clearly a breach of the ESA and certainly not a recommended strategy.  However, employers with a high risk tolerance and who are not concerned about getting on the "bad employer" radar of the Ministry of Labour may choose this option against the advice of legal counsel.

Another strategy is to start to comply with the overtime rules going forward, but in a way that does not advertise to employees that there has been a past breach of the overtime rules and that outstanding overtime may be owed to them.  This is admittedly hard to do as, understandably, employees will be suspicious with sudden unexplained changes in the employer's overtime practices (e.g. receiving overtime pay when they previously did not).

The most legally compliant strategy is, of course, to comply with the overtime rules going forward and to compensate the employee for historic unpaid overtime.  Often employers choose this upfront strategy when the amount of historic unpaid overtime owed, especially in the prior 2-year period, is not significant.

Of course, these listed strategies are not exhaustive, and will depend on the specific circumstances of the employer organization.

Where Do I Get More Information About Overtime Obligations?

For more information, click here.  It will bring you to an excerpt from the Ministry of Labour's Your Guide to the Employment Standards Act on overtime.  For another useful resource, click here.  This will link you to the Ministry of Labour's ES Self-Service Tool, which includes a tool for calculating overtime.

If you have questions about, or need any assistance with respect to, an employer's rights and obligations regarding overtime, you are encouraged to reach out to any member of Siskinds' Labour & Employment Group for advice and direction.


1 This blog only address how overtime works under Ontario's Employment Standards Act, 2000 (the "ESA"), which is the legislation that applies to provincially-regulated employers in Ontario (i.e. roughly 90 percent of the workforce here).  Note that overtime rules differ somewhat from province to province for provincially-regulated employers and, as such, provincially-regulated employers with employees in different provinces will need to understand the overtime rules in each of those province.  In contrast, federally-regulated employers only need to know about the overtime rules under the Canada Labor Code, which governs all of their Canadian employees.

2 There are special overtime rules that apply to certain limited industries or categories of employees in Ontario.  This blog does not address those special overtime rules, details of which can be found on the Ministry of Labour's website.

3 The overtime provisions in the ESA are minimums only.  Employers are free to agree to better overtime entitlements – for example, allow exempt employees to receive overtime, or allow employees overtime at something lower than the 44-hour threshold, or allow employees overtime pay at a rate greater than 1.5 for certain types of overtime hours such as on the weekends.  Where the employer has agreed to better overtime entitlements, the employer will be required to comply with such greater rights or benefits than under the ESA.

4 Note that written agreements can be obtained either in paper or electronic format.

5 Note that, where a union does not represent the employee, the overtime averaging agreement must contain an expiry date that cannot be more than two years from the date that the averaging agreement takes effect.  Where the agreement applies to unionized employees, the expiry date cannot be later than the day the next collective agreement takes effect.  Further, an averaging agreement cannot be revoked by either the employer or the employee before its expiry date, unless both the employer and the employee agree electronically or in writing to revoke it.

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.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Similar Articles
Relevancy Powered by MondaqAI
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions