Part XXIII of the Employment Standards Act, 2000 is subdivided into four sections. The first section consists of sections 116 to 120 and sets out the review process for orders for wages, compensation or reinstatement, orders against directors and compliance orders, as well as the review process for a refusal to issue an order for wages, compensation or reinstatement or compliance. It also provides for the settlement of matters referred to the Ontario Labour Relations Board ("OLRB" or the "Board") by labour relations officers. The second section consist of s. 121, which sets out the process for referrals to the Board by the Director of Employment Standards for a hearing to determine whether there has been a contravention of ESA Part XIII Benefit Plans. The third section consists of s. 122, which sets out the review process for Notices of Contravention. The fourth section consists of ss. 123 and 124, which set out general provisions respecting the Board, including the non-compellability of Board members, the registrar and Board employees to give evidence in civil and administrative proceedings, and the termination and re-institution of proceedings before the Board.

Section 115.1 — Interpretation

This provision was introduced by the Employment Standards Amendment Act (Temporary Help Agencies), 2009, S.O. 2009, c. 9, which came into force on November 6, 2009.

Section 115.1 establishes that any reference to an employee in Part XXIII of the Employment Standards Act, 2000 (i.e., ss. 116 to 124) includes a reference to an assignment employee or a prospective assignment employee. For a discussion of the definition of "assignment employee", see ESA Part I, s. 1(1). For a discussion of the meaning of "prospective assignment employee", see ESA Part XVIII.1, s. 74.8(4).

This provision was necessary to make Part XXIII compatible with ESA Part XVIII.1.

Section 116 — Review

Review — s. 116(1)

Subsection 116(1) sets out the entitlement to a review of an order issued under the following sections:

This subsection provides to a person against whom an order has been issued a right to a review of the order if the person applies in writing for a review and:

  • If the order is an order to recover fees under ESA Part XVIII.1, s. 74.14 or an order to pay wages issued under ESA Part XXII, s. 103, the person against whom the order was issued has paid the full amount of the order to the Director of Employment Standards in trust or provided the Director with an irrevocable letter of credit in that amount that is acceptable to the Director; or
  • If the order is an order against a temporary help agency to pay compensation under ESA Part XVIII.2, s. 74.16, an order against a temporary help agency client to pay compensation under s. 74.17 or an order against an employer to pay compensation under ESA Part XXII, s. 104, the person against whom the order was issued has paid the lesser of:
    • the full amount of the order and (2) $10,000 to the Director in trust, or
    • provided the Director with an irrevocable letter of credit in that amount that is acceptable to the Director.

Note that while orders to pay compensation, like orders to pay wages or recover fees, may cover more than one employee, the amount that must be paid into trust or covered by an irrevocable letter of credit in the case of a compensation order remains at $10,000 regardless of whether the order covers one or several employees.

Note that under s. 116(4), there is a 30-day time limit for applying for a review. Under s. 116(5), the Ontario Labour Relations Board may extend this time limit.

If an applicant for review wishes to provide an irrevocable letter of credit in favour of the Director of Employment Standards rather than paying an amount to the Director in trust in accordance with s. 116(1)(b) or (c), the letter of credit must be acceptable to the Director. While the Director may consider other factors, generally speaking the Director will find a letter of credit to be acceptable if:

  • It is irrevocable
  • It contains a condition providing for its automatic renewal following the expiry date of the letter of credit
  • It contains no other conditions, i.e., conditions other than the automatic renewal condition
  • It permits partial drawings, i.e., the Director can demand and receive payment of less than the entire amount specified in the letter of credit — this is in case the application for review of the order is partially successful and the Ontario Labour Relations Board reduces the amount of the order, and
  • It is issued by a bank or similar financial institution having an office in Ontario.

An information sheet about letters of credit and a template letter of credit that employers may wish to use are available on the Ministry's website.

If an employer believes there are good reasons why the Director should consider a letter of credit to be acceptable despite it not meeting the above criteria, those reasons should be provided to the Director in writing and the Director will consider them. Note that s. 116(1) indicates that a letter of credit must be irrevocable — the Director has no authority to accept a letter of credit that is not irrevocable.

While a director of a corporate employer against whom an order to pay has been issued under ESA Part XXII, s. 106 or s. 107 may apply to have the order reviewed by the Board, there is no requirement that the amount of such an order be paid to the Director in trust or that a letter of credit be provided to the Director. Note also that in the case of a compliance order issued under ESA Part XXII, s. 108, because such an order does not require any payment, the person against whom the order was issued may apply to have the order reviewed by the Board without paying any amount to the Director in trust or providing a letter of credit.

Employee seeks review of order — s. 116(2)

Section 116(2) was amended by the Employment Standards Amendment Act (Temporary Help Agencies), 2009, S.O. 2009, c. 9, effective November 6, 2009 to include references to orders issued under Part XVIII.1.

Section 116(2) establishes the right of an employee to request a review an order in respect of themselves that was issued under:

See s. 116(3) for the right of an employee to review an employment standards officer's refusal to issue certain orders. Such employees include both complainants and non-complainants who are entitled to monies in accordance with the order.

The application for review must be made in writing and must be made within the 30-day period set out in s. 116(4). The requirement that the application for review be in writing is identical to that requirement in s. 116(1). This section should also be read in conjunction with s. 116(5), which allows the Board to extend the time for applying for a review if it considers it appropriate to do so. If an application is made after the 30-day time limit and if an extension is either not requested or not granted, the Board will dismiss the application.

Employees have no entitlement to a review of an order issued against a director under ESA Part XXII, s. 106 or s. 107. Likewise, employees have no entitlement to a review of a compliance order issued under ESA Part XXII, s. 108.

Note that on November 6, 2009, ESA Part XXIII, s. 115.1 came into force. It provides that any reference to an employee in Part XXIII, including s. 116, includes a reference to an assignment employee or a prospective assignment employee.

Employee seeks review of refusal — s. 116(3)

Section 116(3) was amended by the Employment Standards Amendment Act (Temporary Help Agencies), 2009, S.O. 2009, c. 9, effective November 6, 2009 to include references to orders issued under Part XVIII.1.

Subsection 116(3) provides employees who have filed a complaint alleging a contravention of the Act to review the employment standards officer's decision not to issue an order under:

  • ESA Part XVIII.1, s. 74.14: Order to recover fees relating to fees charged by a temporary help agency
  • ESA Part XVIII.1, s. 74.16: Order for compensation relating to certain prohibited activities of temporary help agencies
  • ESA Part XVIII.1, s. 74.17: Order for compensation or reinstatement relating to a reprisal by the client of a temporary help agency
  • ESA Part XXII, s. 103: Order to pay wages
  • ESA Part XXII, s. 104: Order for compensation or reinstatement issued for contraventions of Part XIV Leaves of Absence, Part XVI Lie Detectors, Part XVII Retail Business Establishments and Part XVIII Reprisal
  • ESA Part XXII, s. 108: Compliance order.

See s. 116(2) for the right of an employee to review certain orders that have been issued. The application for a review must be made in writing within the 30-day period set out in s. 116(4). The 30-day time period applies where an employment standards officer refuses to issue an order, as well as where there is a deemed refusal to issue an order under ESA Part XXII, s. 110(2).

The obligation to serve a letter advising a person of a refusal to issue an order is set out in ESA Part XXII, s. 110. Where there is a deemed refusal to issue an order under s. 110(2) because no order or refusal to issue an order is made within the two-year period from the date the complaint was filed, the letter advising the person of the refusal is deemed to have been served on the last day of the second year. This provision exists so that in the rare and unfortunate circumstance where the officer has neither issued an order nor refused to issue an order within the two-year period, the employee will still have the right to apply to have the matter put before the Board.

A refusal to issue an order has been held to include a situation where the officer rescinded an order previously made.

This subsection should also be read in conjunction with s. 116(5), which allows the Board to extend the time for applying for a review if it considers it appropriate to do so. If an application is made after the 30-day time limit and if an extension is either not requested or not granted, the Board will dismiss the application.

Non-complainants have no right of a review under this section. They do, however, have the right to file a complaint for investigation by an employment standards officer and may apply for a review of that officer's determination.

An employee, whether a complainant or non-complainant, has no right to a review of an officer's refusal to issue an order under ESA Part XXII, s. 106 or s. 107 against a director of a corporate employer. This is consistent with s. 116(2), which precludes an employee from seeking a review of an order against a director issued under s. 106 or s. 107.

Note that on November 6, 2009, ESA Part XXIII, s. 115.1 came into force. It provides that any reference to an employee in Part XXIII, including s. 116, includes a reference to an assignment employee or a prospective assignment employee.

Period for applying for review — s. 116(4)

All orders issued under the Act must be served in accordance with ESA Part XXI, s. 95. Likewise, where the Act requires an officer to notify a person that an order has been issued, the requisite letter must also be served in accordance with s. 95. Lastly, a letter advising of the refusal to issue an order under ESA Part XVIII.1, ss. 74.14, 74.16, 74.17 or ESA Part XXII, ss. 103, 104, and 108 must also be served in accordance with s. 95. The following sections establish that service must comply with s. 95:

  • Section 74.14 order to recover fees — s. 74.14(4)
  • Letter advising of order under s. 74.14 — s. 74.14(4)
  • Section 74.16 order for compensation, temporary help agency — s. 74.16(6)
  • Letter advising of order under s. 74.16 — s. 74.16(4)
  • Section 74.17 order re: client reprisal — s. 74.17(3)
  • Letter advising of order under s. 74.17 — s. 74.17(3)
  • Section 103 order for wages — s. 103(6)
  • Letter advising of order under s. 103 — s. 103(7)
  • Section 104 order for compensation — s. 104(4)
  • Letter advising of order under s. 104 — s. 104(4)
  • Section 106 order against a director — s. 106(1)
  • Section 107 further order against directors — s. 107(1)
  • Section 108 compliance order — s. 108(4)
  • Letter advising of order under s. 108 — s. 108(4)
  • Letter advising of refusal to issue order under ss. 74.14, 74.16, 74.17, 103, 104 and 108, including deemed refusal — s. 110

Extension of time — s. 116(5)

Section 116(5) was amended by the Employment Standards Amendment Act (Temporary Help Agencies), 2009 effective November 6, 2009 to include references to orders to recover fees issued under ESA Part XVIII.1, s. 74.14.

Section 116(5) provides that the Board may extend the 30-day time limit for applying for a review set out in s. 116(4) if it considers it appropriate to do so. This discretion is subject to two conditions:

  1. The Board has enquired whether the Director of Employment Standards has already distributed to the employee the wages, fees or compensation assessed in the order and is satisfied that the Director has not; and
  2. The Board has enquired whether collector's fees or disbursements were added to the amount of the order under ESA Part XXIV, s. 128(2) and, if so, is satisfied that they have been paid by the person against whom the order was issued.

The first condition ensures that the Board does not extend the time for applying for a review if, after the monies assessed as owing under the order had been paid into trust, the Director of Employment Standards had already paid those monies out to the employee(s). The second condition is new under the Employment Standards Act, 2000. It ensures that where the monies were not paid into trust within the 30-day time period for applying for a review and the Ministry has subsequently sent the file out for collection, a late application for review is not granted unless the collector's fees and disbursements have been added to the amount of the order and have been paid.

The Board has ruled that it will not consider a request for an extension by an employer or director unless they have paid into trust the monies directed by the order to pay, or provided the Director of Employment Standards with an acceptable, irrevocable letter of credit — see for example Nebenaigoching Heritage Inc. v. Jackson, 2014 CanLII 8971 (ON LRB). Because ESA Part XXIV, s. 128(2) deems collector's fees and disbursements (if any) to be included in the amount of the order, it is anticipated that the Board would likewise not consider a request for an extension unless the amount of any collector's fees or disbursement have also been paid into trust, or are reflected in an irrevocable letter of credit.

Requests for extension that were not granted:

  • Where the employer filed the application 19 days late and could not provide a substantive reason for the delay — see Dynatec Corp. v. Mondoux, 2004 CanLII 24179 (ON LRB)
  • Where the employer filed the application more than three months late due to financial difficulties, legal issues and stress — 1714543 Ontario Inc. (Airport Strip Club) v. Degroot, 2008 CanLII 56582 (ON LRB)
  • Where the employer filed the applications more than two months late due to inadvertence because the employer was dealing with fifteen other matters involving the Ministry of Labour, all of which the employer managed to file on time — Unique Plus Associates Inc. v. Owusu, 2005 CanLII 12700 (ON LRB)
  • Where the employee did not receive the officer’s reasons for decision because he was out of the country and upon receiving the documents waited a further six weeks before filing an application for review — Pozas v. Sokolov (Rainbow Stucco Systems), 2009 CanLII 43034 (ON LRB)
  • Where the employer did not pay the necessary funds into trust because of financial hardship. Note the Employment Standards Act, 2000 does not give any weight to the inconvenience that may be caused to an applicant by virtue of the requirement to pay a specific amount when filing its application for review — see 2030308 Ontario Inc. v. Wherry, 2007 CanLII 5951 (ON LRB)
  • Where the employer was aware of a potential calculation error days after the order to pay was issued and also aware of how to remedy the potential error, yet waited more than three months to file for review once it was contacted by a collection agency — 627148 Ontario Limited (Daily Care Health Services ) v. Langtiwan, 2008 CanLII 29404 (ON LRB)
  • Where the Director of Employment Standards returned the employer’s cheque for funds to be held in trust due to clerical error — 1869461 Ontario Inc. (Regency Family Fitness) v. Kirpal, 2015 CanLII 61368 (ON LRB)

Requests for extension that were granted:

  • Where the employee’s application was filed three weeks late because she was waiting to see if the employer sought a review and the employer delayed providing its email address — see Peters v. Cypriot Homes Association, 2016 CanLII 45338 (ON LRB)
  • Where the employer filed its application for review filed ten days late but had announced its intention to file an application for review and had paid the monies into trust in advance of the filing deadline — see Halley’s Camps Inc. v. Penner, 2016 CanLII 60452 (ON LRB)
  • Where the employee did not receive the officer’s decision because it was incorrectly delivered to his neighbour’s house but made reasonable enquiries to determine what happened to it, obtained a copy of the decision and filed his application shortly thereafter — see Feng v. Ping Li, 2015 CanLII 54406 (ON LRB)
  • Where the employer sought the reduction of the amounts ordered by wage overpayments that were not discovered until the employment had ended. The Board granted the extension even though the application was filed several months late because the employer was not challenging the underlying orders, therefore the proceedings were not prejudicial to the parties — see Cristiano v. 1509212 Ontario Limited operating as Oakridge Heating, 2016 CanLII 43411 (ON LRB)

Note that on November 6, 2009, ESA Part XXIII, s. 115.1 came into force. It provides that any reference to an employee in Part XXIII, including s. 116, includes a reference to an assignment employee or a prospective assignment employee.

Hearing — s. 116(6)

Section 116(6) requires the Board to hold a hearing for the purposes of the s. 116 review, subject only to ESA Part XXIII, s. 118(2). Section 118(2) allows the chair of the Board to make rules that allow the Board not to hold a hearing to expedite decisions about the Board's jurisdiction. At the time of writing, no such rule had been made. Aside from this exception, the language of the section is mandatory: the Board shall hold a hearing. This means that the Board must hold a hearing into a s. 116 review application as long as the conditions of application are met, i.e., the 30-day time limit and payment of the amount ordered into trust or guaranteed by an irrevocable letter of credit.

In Jannock Limited and Armtec Inc. o/a Jannock Steel Fabricating Company et al. v. United Steelworkers of America et al. (November 27, 1995), ESC 3506A (Randall), a case under the former Employment Standards Act, an employer argued that the powers exercised by the referees under the old s. 68 employer-review section were judicial and appellate in nature and offended s. 96 of the Constitution Act, 1867, and were therefore ultra vires or void. The employer's argument was rejected by the referee on the basis that although the referees were performing judicial or quasi-judicial functions, they did so as a necessarily incidental aspect of the broader policy goal of providing minimum standards of protection. The referee also held that the hearing under s. 68 was in the nature of a review, rather than an appeal. It continues to be the Ministry's view that the hearings under s. 116 are in the nature of a review rather than an appeal.

Parties — s. 116(7)

Section 116(7) was amended by the Employment Standards Amendment Act (Temporary Help Agencies), 2009 effective November 6, 2009 to include references to orders under Part XVIII.1.

Section 116(7) identifies those who are considered to be parties to the s. 116 review, and empowers the Board to add relevant persons as parties to the review. Having the status of a party to a hearing means that one is bound by the decision of the Board. Also, only parties to the hearing can apply for judicial review of the Board's decision.

The fact that the Director of Employment Standards is automatically made a party to the hearing may impact on the relevance of the doctrine of issue estoppel in applications for review. Issue estoppel is a doctrine that parties sometimes use to prevent issues that have already been determined in a prior proceeding from being re-litigated. For example, an employer may try to raise the doctrine if an employee files an Employment Standards Act, 2000 complaint under the pregnancy leave provisions after she has already received an unfavourable decision on her application to the Human Rights Tribunal of Ontario.

It may be that, because of s. 116(7), the doctrine of issue estoppel may never apply to applications for review. This is because in order for issue estoppel to apply, the issues and the parties to the prior proceeding must be the same as the issues and the parties to the proceedings in which the issue estoppel is raised. By virtue of s. 116(7), the parties to an application for review include the Director of Employment Standards. Because it is unlikely that the Director will have been a party to any prior proceedings (for example, a human rights complaint), the doctrine of issue estoppel could not apply — see Garner Travel International Inc. #744797 o/a Goliger's Travel v. Parsonage (December 11, 1998), 3422-97-ES (ON LRB), which was a case under the former Employment Standards Act.

Note that this provision must be read in conjunction with ESA Part XXIII, s. 115.1 which provides that any reference to an employee in s. 116 includes a reference to an assignment employee or a prospective assignment employee.

Parties given full opportunity — s. 116(8)

Section 116(8) states that the Board must give the parties to the hearing a full opportunity to present their evidence and submissions.

This section should be read subject to ESA Part XXIII, s. 118(2), which allows the chair of the Board to make rules regarding certain matters that may limit the extent of the Board's obligation to give full opportunity to the parties to present their evidence and submissions.

Practice and procedure for review — s. 116(9)

Section 116(9) states that Board shall determine its own practice and procedure with respect to a review under this section.

This section should be read in conjunction with ss. 116(6), (7) and (8), which require the Board to hold a hearing, permit parties to be added and, subject to ESA Part XXIII, s. 118(2), give parties full opportunity to present their evidence and make submissions.

Section 117 — Money held in trust pending review

Money held in trust pending review — s. 117(1)

This provision was amended by the Employment Standards Amendment Act (Temporary Help Agencies), 2009, S.O. 2009, c. 9, effective November 6, 2009 to include a reference to orders to recover fees issued under s. 74.14.

Subsection 117(1) indicates that s. 117 applies where money has been paid to the Director in trust with respect to an application for review of an order issued under s. 74.14 (for fees), s. 75.16 (for compensation (temporary help agency), s. 75.17 (order re: client reprisal), s. 103 (for wages) or s. 104 (for compensation).

Interest-bearing account — s. 117(2)

This provision is similar in part to the corresponding section (s. 70(1)) of the former Employment Standards Act. Section 117(2) requires that any money paid to the Director in trust in the context of a s. 116 application for review of an order for wages, fees or compensation be put into an interest-bearing account pending the review. This includes the money paid in respect of wages, fees and compensation, as well as the administrative costs.

For information regarding the delegation of the Director's non- discretionary power to receive monies into trust under this section, see Delegation of Powers in the Manual for further information.

If settlement — s. 117(3)

This provision is similar in part to the corresponding sections (s. 69.1(6), 70(3) and s. 70(4)) of the former Employment Standards Act. Section 117(3) requires the Director of Employment Standards to distribute, in accordance with the terms of a settlement of a s. 116 (application for review) proceeding at the Ontario Labour Relations Board, any money that is held in trust subject to provisions regarding the payment of administrative costs as set out in ss. 112(6) and 120(6). Section 117(3) applies whether the settlement is facilitated by an employment standards officer under s. 112 or by a labour relations officer under s. 120.

The distribution of administrative costs on a settlement under s. 117(3) is subject to s. 112(6) and s. 120 (6). These sections provide that where there is a settlement of an order, the Director is still entitled to be paid a proportion of the administrative costs assessed under the order. That proportion is calculated as the amount paid to the employee under the settlement, divided by the amount assessed as owing to the employee under the order. For further discussion of s. 112(6) and s. 120(6) see ESA Part XXII and ESA Part XXIII.

Section 117(3) also requires the Director to pay interest on the monies paid out under the settlement that were held in trust (wages, compensation and administrative costs), at the rate and calculated in the manner determined by the Director under s. 88(5).

If no settlement — s. 117(4)

This section is similar in part to the corresponding section (s. 70(1)) of the former Employment Standards Act. Section 117(4) sets out the Director's obligation to pay out the funds in trust once the Board renders its decision. The Director must distribute the funds as the Board's decision specifies. Subject to an order from the Board to the contrary, it is the general policy of the Trust Funds Unit of the Employment Practices Branch to hold the monies in trust for 30 days following the date of receipt of the decision, in case there is a judicial review and stay application by one of the parties.

The section further requires that the money be paid out according to the Board's decision, along with interest on the money at the rate and calculated in the manner determined by the Director under s. 88(5).

Section 118 — Rules of practice

Rules of practice — s. 118(1)

This provision is similar to the corresponding section (s. 68(11)) of the former Employment Standards Act.

Section 118(1) allows the chair of the Board to make rules governing the Ontario Labour Relations Board's practice and procedure in s. 116 cases, and to provide for forms to be used.

The Board published new Rules of Procedure governing all matters that arise before it, including the former Employment Standards Act cases, in August 1999. The rules were subsequently amended and were also made applicable to cases under the Employment Standards Act, 2000.

Among other things, rules made pursuant to this section:

  • Require applications for review to be made on the Board's Form A-103;
  • Require the Director of Employment Standards to provide the following documents or information to the Board within twenty (20) days after the date of the letter or notice from the Board informing the Director that an application has been filed:
    • The name and address of every affected employee, employer and director;
    • A copy of the employment standards officer's narrative report;
    • A copy of the Order to Pay and officer's Worksheets, or the letter advising the employee of the Order, or the letter advising of the refusal to issue an Order or a copy of the Notice of Contravention, if applicable;
    • Proof of payment to the Director in trust or a statement that an irrevocable letter of credit acceptable to the Director has been provided, if applicable;
    • Verification (including the certificate of the employment standards officer made under s. 103(7) and/or s. 95(10) (at the time of writing, the Board's Rules referred to s. 113(4) of the ESA which is substantively the same as s. 95(11), but was repealed on November 6, 2009) that the Order or Notice of Contravention or the letter advising the employee of the Order, as applicable, as referred to in paragraph iii, have been served, together with precise information about how, when and where the documents were delivered;
    • Verification that the letter referred to in paragraph iii, advising of the refusal under section 110 to issue an order has been served, together with precise information about how, when and where the documents were delivered; and
    • In the case of an application under section 116(1) of the ESA, precise information as to whether the Director has paid the wages or compensation to the employee and whether a collector's fee or disbursements have been added to the amount of the Order under section 128(2) of the ESA, and if so, whether the fees and disbursements were paid by the persons to whom the Order was issued.

Where the Director fails to provide the information required under paragraph vii, in the way required by these Rules, the Board may be satisfied that the Director has not paid to the employees the wages or compensation that were the subject of the Order and the Board may be satisfied that any collector's fees or disbursements that may have been added to the amount of an Order under s. 128(2) of the Employment Standards Act, 2000 were paid by the person to whom the Order was issued.

  • A responding party that files a response or other document with the Board must, at the same time, deliver copies to all other parties and must verify in writing that it has done so. For greater certainty, this Rule applies to the documents provided by the Director of Employment Standards.
  • The Director of Employment Standards must file a response to an application to review a Compliance Order issued under s. 108 of the Employment Standards Act, 2000, and must file a response to an application to review a Notice of Contravention issued under s. 113 of the ESA. The response must comply with the Board rules and must be filed with the Board not later than twenty (20) days after the date of the Confirmation of Filing sent by the Board.
  • Allow parties in applications for review to request the Board to reconsider its decision in their case. The request must be made in writing, including everything the party is relying on in support of the request, and be filed with the Board no more than 20 business days after the date of the Board's decision (except with permission of the Board). Generally, the Board will not reconsider its decision unless the requesting party has new evidence that would be practically conclusive of the case and that it could not have reasonably obtained earlier, or the party has new objections or arguments that it had no opportunity to raise earlier. The Board does not treat its reconsideration power as either a tool for a party to repair the deficiency of its case nor an opportunity to reargue it. If the requesting party relies on matter that could reasonably have been raised at the original hearing, the Board will not normally reconsider its decision.

Expedited decisions — s. 118(2)

This provision is essentially unchanged from the corresponding section (s. 68(12)) of the former Employment Standards Act.

This section qualifies the requirements of ss. 116(6) and (8) for the Board to hold a hearing and give full opportunity to the parties to present their evidence and make submissions in a s. 116 review application. It provides that the chair of the Board can make rules to expedite decisions about the Board's jurisdiction that exempt those requirements. At the time of writing, no such rules had been made.

Effective date of rules — s. 118(3)

This provision is similar to s. 68(13) of the former Employment Standards Act. It was amended by the Good Government Act, 2006, S.O. 2006, c. 19, effective June 22, 2006 to provide that only those rules made to expedite decisions about the Board's jurisdiction require an order of the Lieutenant Governor in Council to come into force.

Previously s. 118(3) required that all rules made by the chair of the Board under s. 118, including rules made under s. 118(1) regarding the Board's practice, procedure and exercise of its powers and providing for forms and their use, came into force on a date determined by the Lieutenant Governor in Council.

Conflict with Statutory Powers Procedure Act — s. 118(4)

This section is essentially the same as the corresponding section (s. 68(14)) of the former Employment Standards Act.

This section states that rules made by the chair of the Board under s. 118 apply, notwithstanding the requirements of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22 ("SPPA").

The SPPA (as amended) Part 1 ''Minimum Rules for Proceedings of Certain Tribunals'', s. 3(1) states that, subject to s. 3(2), Part I applies to proceedings ''by a tribunal in the exercise of a statutory power of decision conferred by or under an Act of the Legislature, where the tribunal is required by or under such Act or otherwise by law to hold or to afford to the parties to the proceeding an opportunity for a hearing before making a decision.'' In effect, the Part I SPPA rules for holding and conducting a hearing, do not apply if they conflict with the Board's rules.

Rules not regulations — s. 118(5)

This provision is essentially the same as the corresponding section (s. 68(15)) of the former Employment Standards Act.

Section 118(5) simply states that rules made by the chair of the Board under s. 118 are not regulations within the meaning of Part III (Regulations) of the Legislation Act, 2006, S.O. 2006, c. 21, Sched. F.

Section 119 — Powers of board

Powers of board — s. 119(1)

Section 119(1) states that s. 119 sets out the Ontario Labour Relations Board's powers with respect to a review under ESA Part XXIII, s. 116.

Persons to represent groups — s. 119(2)

Section 119(2) provides that when there are multiple parties with the same or substantially the same interest in a hearing, the Board may designate one or more of the parties as representatives for the entire group.

Quorum — s. 119(3)

This section indicates that the chair or a vice-chair of the Board constitutes a quorum and is sufficient for the exercise of all the jurisdiction and powers of the Board under ESA Part XXIII, s. 116.

Posting of notices — s. 119(4)

Section 119(4) empowers the Board to order a person (which could include a trade union) to post notices that the Board considers appropriate, even if the person is not a party to the review. See the discussion of the definition of person in ESA Part I, s. 1. For example, where a director appeals an order issued under ESA Part XXII, s. 106, the Board could require the employer to post a notice even if the employer was not a party to the review hearing.

Same — s. 119(5)

Section 119(5) provides that where a person has been required to post a notice under s. 119(4), it must be posted and kept posted in a conspicuous place or places in or upon the premises of that person where it is likely to come to the attention of other persons having an interest in, or who are affected by, the review.

Powers of board — s. 119(6)

Together with s. 119(7), this section sets out the Board's powers to arrive at a particular decision respecting an application for review.

The Board has all of the powers of an employment standards officer: it can make any order that an officer can make, and can order the production of records or documents that the officer could have ordered produced for inspection. In applications to review an order, the Board can amend, rescind or affirm the order, or issue a new order. Because the Board has all the powers of an officer, it is the Program's position that the Board can amend an order by increasing or decreasing the amount of the order. In applications to review the refusal to issue an order, the Board can issue an order or affirm the refusal.

The Board may also reconsider one of its own decisions — see the discussion at ESA Part XXIII, s. 118(1).

Dealing with order — s. 119(7)

Section 119(7) more particularly spells out the Board's powers to issue a decision on a review as set out in s. 119(6).

Labour relations officers — s. 119(8)

This section allows the Board to, during a review, direct one of its labour relations officers to examine records or conduct any other inquiries that the Board feels are necessary for the review. The Board is explicitly prohibited from directing an employment standards officer to do any of those things.

This section should be read in conjunction with s. 119(9), which states that ESA Part XXI, ss. 91 and 92, whichset out the powers of an employment standards officer as well as the compliance required of people involved in an investigation by an employment standards officer, apply with respect to labour relations officers directed under s. 119(8).

Powers of labour relations officers — s. 119(9)

Section 119(9) states that ESA Part XXI, ss. 91 and 92, which set out the powers of employment standards officers and the compliance required of people involved in an investigation by an employment standards officer, apply to labour relations officers who are directed to examine records or conduct other inquiries under s. 119(8).

Wages or compensation owing — s. 119(10)

Section 119(10) was amended by the Employment Standards Amendment Act (Temporary Help Agencies), 2009, S.O. 2009, c. 9, effective November 6, 2009 to include a reference to orders to recover fees issued under s. 74.14.

Section 119(10) states that s. 119(11) applies if, during a review under ESA Part XXIII, s. 116, the Board finds any portion of the wages, fees or compensation is owing to the employee, or the parties agree such a portion is owing to the employee.

Note that on November 6, 2009, ESA Part XXIII, s.115.1 came into force. It provides that any reference to an employee in Part XXIII, including s. 119, includes a reference to an assignment employee or a prospective assignment employee.

Interim order — s. 119(11)

Section 119(11) provides that where, under s. 119(10), the Board finds that a specified amount of wages, fees or compensation is owing to the employee, or the parties agree such an amount is owing to the employee, the order shall be affirmed to that extent or an order issued to that extent. As a result, that specified amount of wages, fees or compensation may be paid out before the hearing ends, or even before it begins.

Note that on November 6, 2009, ESA Part XXIII, s. 115.1 came into force. It provides that any reference to an employee in Part XXIII, including s. 119, includes a reference to an assignment employee or a prospective assignment employee.

This section is designed to enable moneys to be paid out to an employee who is entitled to it as soon as possible. Note that the language of this section is mandatory: the Board is obliged to issue or affirm the order to a certain extent without delay. See Northern Air Systems v. MacLean, 1999 CanLII 19493 (ON LRB), where the Board observed that none of the issues raised in the employer's written application would disentitle the employee to termination pay and, before a hearing was convened, directed that the monies held in trust be released to the employee in accordance with s. 68(23) of the former Employment Standards Act.

Interest — s. 119(12)

Section 119(12) was amended by the Employment Standards Amendment Act (Temporary Help Agencies), 2009, S.O. 2009, c. 9 effective November 6, 2009 to include a reference to orders to recover fees issued under ESA Part XVIII.1, s. 74.14.

Section 119(12) allows the Board to order employers, clients of temporary help agencies or directors to pay interest on any money they are ordered to pay in respect of an order for wages, fees or compensation at the rate and calculated in the manner determined by the Director under ESA Part XXI, s. 88(5).

Decision final — s. 119(13)

Section 119(13) provides that the results of an application for review under ESA Part XXIII, s. 116 are final and binding. However this section must be read subject to the right to apply to the Board for reconsideration of that decision or to a judicial review of the decision in accordance with s. 119(14). See the discussion regarding reconsideration requests at ESA Part XXIII, s. 118(1).

Section 116(7) specifies upon whom the results of a review application are binding: the parties to the hearing, including parties whom the Board specified as such. Decisions under ESA Part XXIII, s. 116 have technically, then, no binding effect on anyone who was not a party. Furthermore, where the Board hears subsequent cases with different parties than those in the original hearing, the Board is not bound by the original decision, although it may have some persuasive value.

Judicial review — s. 119(14)

This provision codifies the right to apply for a judicial review and establishes the standard of review. It provides that s. 119(13), which provides that the Board's decisions are final and binding, does not limit a court's ability to review a decision of the Board but also provides that the Board's decision with respect to the interpretation of the Act cannot be overturned unless it was unreasonable.

Standard of review

In Halloran v. Sargeant, 2002 CanLII 45029 (ON CA), the Ontario Court of Appeal held that a referee's decision should not be overturned unless it is unreasonable. The unreasonable standard is a somewhat less deferential standard, however, the decision in question does not have to be correct in law.

In s. 119(4), the Legislature has expressly stated that a decision of the Ontario Labour Relations Board concerning the interpretation of the Act should not be overturned unless it is unreasonable. Interestingly, the Ontario Court of Appeal in the National Automobile, Aerospace Transportation and General Workers Union of Canada (C.A.W. — Canada) Local No. 27 v. London Machinery Inc., 2006 CanLII 8711 (ON CA) ruled that the decision of an arbitrator concerning the interpretation of the Act should not be overturned unless it is patently unreasonable. In so ruling, the Court did not discuss s. 119(4).

Prematurity

Several court decisions have addressed the issue of premature judicial review applications; that is, when a party has gone directly to judicial review after the officer's decision, rather than first applying for a review of the decision under the former Employment Standards Act. All of the following decisions dealt with the former Employment Standards Act and before jurisdiction over reviews was transferred to the Ontario Labour Relations Board, but it is anticipated that these principles will apply to the Employment Standards Act, 2000 as well.

The courts have said that employers could not circumvent the former s. 68 review process (now ESA Part XXIII, s. 116), except in rare circumstances. Instead, employers were required to rely on the adjudication provisions of the former ESA before seeking judicial review. In Susan Shoe Industries Ltd. v. Ricchiardi, 1994 CanLII 1313 (ON CA) the employer took the employment standards officer's order directly to the Divisional Court on judicial review, and the order was quashed. The officer appealed to the Court of Appeal, which restored the order and said that given the existence of specialized referees appointed under the former Employment Standards Act, "Except in exceptional circumstances . . . the courts ought not to interfere before the procedures under the Act have been exhausted." The court found that in this case there was no compelling reason to go outside of the normal processes provided for by the former Employment Standards Act and therefore the employer should have gone before a referee under the Act prior to seeking judicial review.

This issue was also considered in Stelco Inc. v. Nelson (October 21, 1994) (ON SC). The Divisional Court in Stelco followed the rule in Susan Shoe Industries Ltd. v. Ricchiardi and said that the administrative processes under the former Employment Standards Act were not to be circumvented; that is, matters were not to be brought to judicial review prematurely. In 949198 Ontario Inc. v. Koskie (March 4, 1993) (ON SC) the courts considered the issue of what would constitute exceptional circumstances such that parties could seek judicial review without first following the course contemplated by the former Employment Standards Act. Such exceptional circumstances included the applicant's being unable because of financial hardship to put money into trust in application for a s. 68 (now ESA Part XXIII, s. 116) appeal; personal liability at issue for an individual employer; or a case where there was a severe breach of the principles of natural justice.

None of these exceptional circumstances was present in either the Stelco case or Susan Shoe case.

In the 550551 Ontario Ltd. v. Framingham, 1991 CanLII 7388 (ON SC) case, however, one of these exceptional circumstances existed: that is, personal liability of an individual with regard to an order to pay of several million dollars. In that case, the court allowed judicial review of the employment standards officer's order, even without a referee's decision.

Section 120 — Settlement through labour relations officer

Settlement through labour relations officer — s. 120(1)

Subsection 120(1) provides that the Ontario Labour Relations Board may authorize a labour relations officer to try to settle any cases that are before the Board under ESA Part XXIII, s. 116.

Certain matters not bar to settlement — s. 120(2)

Subsection 120(2) confirms that a settlement of an application for review proceeding at the Ontario Labour Relations Board is valid and binding even in the two circumstances that are set out:

  1. The employment standards officer whose decision is the subject of the proceeding does not participate or is not advised of the settlement; or
  2. The proceeding has already started.

Compliance orders — s. 120(3)

This provision precludes the settlement by a labour relations officer of a compliance order issued by an employment standards officer under ESA Part XXII, s. 108 in the absence of the approval of the Director of Employment Standards.

Note that where a settlement is effected under ESA Part XXII, s. 112, that settlement will not void a compliance order. This is because such settlements are made without the approval of the officer — the parties are only required to inform the officer of the settlement.

Effect of settlement — s. 120(4)

This subsection sets out the effect of settling a matter raised in an application for review under ESA Part XXIII, s. 116. Any settlement entered into by the parties to the proceeding is binding, if the parties to the settlement do what they have agreed to do under the settlement. Such a settlement is binding despite the prohibition against contracting out of the ESA Part III, s. 5. Note that the persons that may enter into such a settlement include an agent acting on behalf of the employee. Subsection 120(4) also provides that where the settlement concerns the review of an order, that order is void and the review is terminated.

Subsection 120(4) must be read subject to s. 120(5), which allows a settlement to be voided if an employee can demonstrate to the Board that they entered into the settlement as a result of fraud or coercion.

Note that on November 6, 2009, ESA Part XXIII, s. 115.1 came into force. It provides that any reference to an employee in Part XXIII, including s. 116 and s. 120, includes a reference to an assignment employee or a prospective assignment employee.

Application to void settlement — s. 120(5)

Subsection 120(5) sets out the situation in which a settlement of an application for review under ESA Part XXIII, s. 116 proceeding at the Ontario Labour Relations Board can be set aside. It provides that if upon an application to the Board, the employee can demonstrate that he or she entered into the settlement as a result of fraud or coercion, the settlement will be voided, the employment standards officer's order (if any) is restored, and the proceeding that was terminated shall be resumed.

Note that on November 6, 2009, ESA Part XXIII, s. 115.1 came into force. It provides that any reference to an employee in Part XXIII, including ss. 116 and 120, includes a reference to an assignment employee or a prospective assignment employee.

In George v. 1008810 Ontario Ltd., 2004 CanLII 33763 (ON LRB), an employee sought to have a settlement agreement made pursuant to s. 120 regarding her claim for termination and vacation pay treated as null and void on the basis that the employer refused to pay the agreed-to amount. The Board concluded that as there had been no fraud or coercion, but rather non-compliance by one party, the settlement could not be voided under s. 120(5). Instead, the Board reasoned that the appropriate remedy was to require the employer to pay the claimant the money she was owed pursuant to the settlement and held that if the employer did not comply, the Board could issue an order to pay under ESA Part XXIII, s. 119(6) together with an administrative fee. Failure to pay that order would result in collection proceedings. The Board also noted that the employee was free to pursue any other claims against the employer including the human rights complaint she had discontinued in accordance with the settlement. (Note: the Program does not agree with the OLRB’s view that the remedy for non-compliance with a settlement term is to enforce the settlement. It is the Program’s position that the wording of s. 120(4) clearly provides that where a party does not do what they agreed to do under the terms of the settlement, the settlement fails and the review application picks up where it left off.)

In Dufresne v. InnVest Hotels GP Ltd. operating as Comfort Inn — Innvest Hotels Group, 2017 CanLII 4460 (ON LRB), the claimant sought to void a settlement agreement on the basis of coercion by the labour relations officer. The Board noted that coercion is the use of force to persuade an unwilling person to do something. The Board set out a number of principles, including: advising a party about the risks and likelihoods of a case does not amount to coercion; the fact that an offer is time-limited does not make it coercive; and where a party understands that they have a choice of accepting a settlement or proceeding to a hearing, the Board is not likely to find that the party was coerced into settling. The Board found that the Labour Relations Officer’s explanation of the potential risks of not signing a settlement did not constitute coercion, and that the claimant had already agreed to the settlement in principle before even speaking to the Labour Relations Officer. Therefore, the Board upheld the settlement agreement.

Distribution — s. 120(6)

Subsection 120(6) was amended by the Employment Standards Amendment Act (Temporary Help Agencies), 2009, S.O. 2009, c. 9, effective November 6, 2009 to include a reference to orders to recover fees issued under ESA Part XVIII.1, s. 74.14. The Fair Workplaces, Better Jobs Act, 2017, S.O. 2017 c. 22 further amended this provision to provide for the recovery of a proportion of a collector’s fees and disbursements based on the amount an employee is entitled to receive under a settlement made under s. 116.

Clause 120(6)(b)(i) allows the Director of Employment Standards to distribute, in accordance with the terms of a settlement of an application for review proceeding at the Ontario Labour Relations Board pursuant to ESA Part XXIII, s. 116, any money respecting wages, fees or compensation that is held in trust and all or part of the administrative costs that were paid. Out of the money held in trust that is attributable to administration costs, the Director is entitled to be paid an amount that is proportionate to the amount of wages, fees or compensation ordered to be paid and the amount the employee is entitled to receive under the settlement, despite the fact that the order is voided by the settlement under s. 120(4)(b).

Clause 120 (6)(b)(ii) establishes the director’s entitlement to be paid a proportionate amount of the collectors’ fees and disbursements when a settlement is reached under an application for review proceeding under ESA Part XXIII, s. 116 between an employer and an employee if the order has been assigned to a collector. Out of the money that is attributable to the collection fees, the Director is entitled to be paid an amount that is proportionate to the amount of wages, fees, or compensation ordered to be paid to the employee and the amount the employee is entitled to receive under the settlement.

While this provision states that it is the Director who is entitled to the collector’s fees and disbursements, the Director may authorize the collector to exercise the powers specified in an authorization and collect the fees and disbursements under ESA Part XXIV, s. 127.

For example, consider an order issued for $1,000 in wages plus a $100 administrative fee. Assuming the director has authorized the collector to collect 20% of the order to pay in respect of the collector’s fees, in accordance with ESA Part XXIV, s. 127(3), a collection fee of $220 (($1,000 + $100) × 20%) would be added to the order. If the employer and the employee enter into a settlement under s. 120 of $800 (80% of the amount owing to the employee), the collector would be entitled to a proportional amount of the fee in the amount of $176 ($220 × 80% = $176), based on the settlement reached.

Note that on November 6, 2009, ESA Part XXIII, s. 115.1 came into force. It provides that any reference to an employee in ESA Part XXIII, including ss. 116 and 120, includes a reference to an assignment employee or a prospective assignment employee.

See also the discussion of ESA Part XXII, s. 112(6) regarding the payment of administrative costs and recovery of collector’s fees and disbursements, where a settlement is reached between the parties.

Subsection 120(6) should be read in conjunction with ESA Part XXIII, s. 117(3), which requires the Director to pay interest on any money, which will include any administrative costs, they are required to hold in trust and that is subsequently paid out under a settlement, at the rate and calculated in the manner determined by the Director under ESA Part XXI, s. 88(5).

Section 121 — Referral

Referral — s. 121(1)

This provision is similar to the corresponding section (s. 33(4) and s. 69) of the former Employment Standards Act, although the authority for the Director of Employment Standards to refer matters to the Ontario Labour Relations Board extended to potential contraventions of any provision of the Employment Standards Act, 2000, not just those involving Part XIII (Benefit Plans) provisions.

Section 121(1) gives the Director discretionary power to refer an issue to the Ontario Labour Relations Board where the Director believes that an employer, an organization of employers or employees, or a person acting directly on their behalf, may have contravened Part XIII. Part XIII prohibits discrimination in the provision of employment related benefit plans (pension, life insurance, disability insurance, health insurance or a health benefit plan) on the basis of age, sex, marital status or same-sex partnership status of an employee.

The section allows a referral to the Board whether the Director's belief arose as the result of a complaint or not. For example, the referral could be made on the basis of information discovered in the course of an inspection. Since this is not an application for review, but rather a reference by the Director, the power to set it into motion has not been delegated to the Board. The Director retains that power.

Hearing — s. 121(2)

This section is similar to the general reference provisions in s. 69 of the former Employment Standards Act, that it makes it mandatory for the Board to hold a hearing if a matter regarding a contravention of Part XIII (Benefit Plans) has been referred (under s. 121(1)) to it by the Director.

Under the former Employment Standards Act, the s. 69 hearing was compared to a "reference" by at least one referee, Ritchie and Associates v. Flemming et al. (January 2, 1980), ESC 676 (Franks): that is, to a procedural hearing at common law, where a judge decides, at the request of one of the parties involved, a point of law or issue of fact that has been the subject of dispute. One case said that a hearing under s. 69 was more a fact-finding exercise than an adversarial proceeding: John Patrick Sheridan et al. v. United Steelworkers of America, Local 4440 (May 6, 1994), ESC 94-97 (Novick).

Generally, the employer in a s. 69 hearing did not bear the same degree of onus as it did in a s. 68 employer review hearing under the former Employment Standards Act.

Powers of board — s. 121(3)

This provision is similar to the corresponding sections (s. 69(5) and (6)) of the general reference provisions in the former Employment Standards Act.

Under this section, the Board may determine that there has been a contravention of Part XIII (Benefit Plans) of the Act and may direct that person to cease contravening Part XIII and take whatever action is necessary to do so. For example, the Board's order making power could extend to a corporate director acting on behalf of the employer. However, the order compensating the employee(s) for any loss or disadvantage in that case would be subject to the provisions regarding director's liability in Part XX of the Act.

The Board may also order the person to compensate any person or persons who may have suffered a loss or been disadvantaged because of the contravention.

Certain review provisions applicable — s. 121(4)

This section provides that certain sections of s. 116 (applications for review), s. 118 (the Board's rules of practice), s. 119 (the powers of the Board) and s. 120 (settlements through labour relations officers) apply, with necessary modifications, with respect to the s. 121 reference. Those sections are:

 

  • Section 116(8): Board's obligation to give parties full opportunity to present evidence and make submissions,
  • Section 116(9): Board's power to determine its own practice and procedure
  • Section 118(1): power of the chair of the Board to make rules governing the Board's practice and procedure and providing for forms
  • Section 118(3): rules made under s. 118 come into force on a day determined by an order of the Lieutenant Governor in Council
  • Section 118(4): rules made under s. 118 apply despite a conflict with the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22
  • Section 118(5): rules made under s. 118 are not regulations within the meaning of Part III (Regulations) of the Legislation Act, 2006, S.O. 2006, c. 21, Sched. F
  • Section 119(1): provides that s. 119 applies to a review under s. 116 (and as modified by s. 121(4), to a reference under s. 121)
  • Section 119(2): power of the Board to designate one or more parties who have substantially the same interest in a proceeding to be a representative of the entire group
  • Section 119(3): stipulates what constitutes a quorum of the Board
  • Section 119(4): power of the Board to require the posting of notices
  • Section 119(5): power of the Board to require notices be posted and kept posted in a conspicuous place
  • Section 119(8): Board may direct a labour relations officer to examine records and conduct other inquiries
  • Section 119(9): states that ss. 91 and 92 (powers of employment standards officer's and compliance required of people involved in an investigation by an employment standards officer) apply to labour relations officers directed under s. 119(8)
  • Section 119(13): provides that the decision of the Board is final and binding
  • Section 119(14): allows for the Board's decision to be reviewed by the courts and decision not to be overturned unless it is unreasonable
  • Section 120(1): allows the Board to authorize a labour relations officer to effect a settlement
  • Section 120(4): settlement effected by labour relations officer is binding and the order is void and review is terminated if parties do what they have agreed to do
  • Section 120(5): settlement effected by labour relations officer may be voided, the order (if any) reinstated and the review resumed, if the employee demonstrates it was entered into as a result of fraud or coercion

 

Section 122 — Review of notice of contravention

Review of notice of contravention — s. 122(1)

This provision was introduced in the Employment Standards Act, 2000. It establishes a right of review of a notice of contravention issued under ESA Part XXII, s. 113. It limits the right of review to a person against whom the notice was issued. As a result, an employee has no right to apply for a review of a notice of contravention issued against their employer or a client of a temporary help agency.

ESA Part XXIII, s. 121(1) requires that the application be made within 30 days after the date the notice is served. See the discussions of the service requirements for a notice of contravention in ESA Part XXII, s. 113(3) and ESA Part XXI, s. 95.

In contrast to an employer's application for review of an order issued under ESA Part XXII, s. 103 or s.104, there is no requirement to pay the amount of the notice into trust.

The Ontario Labour Relations Board may extend the time for applying for a review, as it considers appropriate.

Note that ESA Part XXIII, s. 115.1 provides that any reference to an employee in Part XXIII includes a reference to an assignment employee or a prospective assignment employee.

Hearing — s. 122(2)

This section imposes a mandatory obligation on the Board to hold a hearing for a review of a notice of contravention if the application has been made within 30 days of the date of the service of the notice or within the extended period allowed by the Board under s. 122(1).

Parties — s. 122(3)

Section 122(3) identifies the parties to a review of a notice of contravention as the person against whom the notice was issued, and the Director of Employment Standards.

Onus — s. 122(4)

Section 122(4) places the onus on the Director of Employment Standards to show, on a balance of probabilities, that the person against whom the notice of contravention was issued has contravened the provision of the Employment Standards Act, 2000 that was the subject of the notice.

The balance of probabilities standard of proof is consistent with the standard applied in proceedings before an administrative tribunal and in civil proceedings. It requires the Director to convince the Board that the evidence shows it is more likely than not that the person against whom the notice was issued committed the contravention. This standard is less onerous than that applied in criminal proceedings where it must be proved beyond a reasonable doubt that the crime was committed.

Decision — s. 122(5)

This section lists the findings that the Board may make on a review of a notice of contravention. The Board has three options:

  1. It may find that the person did not commit the contravention and so rescind the notice;
  2. It may find that the person did commit the contravention and affirm the notice; or
  3. It may find that the person committed the contravention but amend the notice by reducing the penalty.

The third option may apply, for example, where the officer has imposed a higher penalty for the contravention on the basis that it was the second time the employer had contravened the same provision of the Employment Standards Act, 2000 (for a contravention of ss. 2, 15 or 16) or has multiplied the penalty by the number of employees affected (for a contravention of a provision other than ss. 2, 15 or 16). See O. Reg. 289/01 for the schedule of penalties. In either case, the Board could reduce the penalty if, for example, it determined that this was only the first time the employer contravened ss. 2, 15 or 16 of the Employment Standards Act, 2000 or, in the case of a contravention of a provision other than ss. 2, 15 or 16, that the number of employees affected was less than the number found by the employment standards officer.

The Board's options do not extend to amending the notice by increasing the penalty. For example, where the employer standards officer had assessed the penalty based on a finding that an employer had contravened ESA Part XI, s. 33 with respect to five employees and on review, the Board determines that, in fact, 10 employees were affected by the contravention of s. 33, the Board could not increase the penalty.

Collector's fees and disbursements — s. 122(6)

This section provides that where the Board has extended the time for applying for a review and subsequently finds that the person applying for the review contravened the Employment Standards Act, 2000, it must enquire whether any collector's fees and disbursements were added to the notice under ESA Part XXIII, s. 128(2). If they were, the Board must advise the person to whom the notice was issued that such amounts are owing, when it issues its decision.

ESA Part XXIV, s. 128(2) provides that when a file is sent for collection, the collector's fees and disbursements are added to the amount of the order or notice of contravention.

Certain provisions applicable — s. 122(7)

This section provides that certain sections of ESA Part XXIII, s. 116 (applications for review), ESA Part XXIII, s. 118 (the Board's rules of practice) and ESA Part XXIII, s. 119 (the powers of the Board) apply, with necessary modifications, with respect to a review of a notice of contravention. Those sections are:

  • Section 116(8) — Board's obligation to give parties full opportunity to present evidence and make submissions;
  • Section 116(9) — Board's power to determine its own practice and procedure;
  • Section 118(1) — power of the chair of the Board to make rules governing the Board's practice and procedure and providing for forms;
  • Section 118(3) — rules made under s. 118 come into force on a day determined by an order of the Lieutenant Governor in Council;
  • Section 118(4) — rules made under s. 118 apply despite a conflict with the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22;
  • Section 118(5) — rules made under s. 118 are not regulations within the meaning of Part III (Regulations) of the Legislation Act, 2006, S.O. 2006, c. 21, Sched. F;
  • Section 119(3) — stipulates what constitutes a quorum of the Board;
  • Section 119(4) — power of the Board to require the posting of notices;
  • Section 119(5) — power of the Board to require notices be posted and kept posted in a conspicuous place;
  • Section 119(13) — provides that the decision of the Board is final and binding;
  • Section 119(14) — allows for the Board's decision to be reviewed by the courts and decision not to be overturned unless it is unreasonable.

Section 123 — Persons from board not compellable

Persons from board not compellable — s. 123(1)

This provision is substantially the same as the corresponding section (s. 69.2(1)) of the former Employment Standards Act. Section 123(1) provides that the consent of the Board is required before an Ontario Labour Relations Board member, the Registrar, or any employee of the Board can be required to give testimony in any civil proceeding, Board proceeding, or proceeding before another tribunal respecting any information obtained in the exercise of his or her powers or the discharge of his or her duties under the Employment Standards Act, 2000.

Note that criminal proceedings are not covered by this provision.

Non-disclosure — s. 123(2)

This provision is substantially the same as the corresponding section (s. 69.2(2)) of the former Employment Standards Act. Section 123(2) ensures the confidentiality of settlement discussions with the Ontario Labour Relations Board's labour relations officers by providing that information or material revealed during the course of dealing with a labour relations officer is not to be disclosed unless authorized by the Board. See for example a decision under the former Employment Standards Act, Hammond v. 748403 Ontario Limited o/a Happy Landing Truck Stop (June 7, 1999), 3160-98-ES (ON LRB).

Section 124 — When no decision after six months

When no decision after six months — s. 124(1)

Section 124(1) provides that s. 124 applies if the Ontario Labour Relations Board has not made a decision six months after the last day of a hearing on a review of an order issued under any the following sections:

  • Section 74.14 order to recover fees
  • Section 74.16 order for compensation, temporary help agency
  • Section 74.17 order re client reprisal
  • Section 103 order for wages
  • Section 104 order for compensation or reinstatement
  • Section 106 order against a director
  • Section 107 further order against directors
  • Section 108 compliance order

Section 124 also applies if the Board has not made a decision six months after the last day of a hearing on a review of a notice of contravention under s. 122 or on a review under s. 116 of a refusal to issue an order under the any of the following sections of the Employment Standards Act, 2000:

  • Section 74.14 order to recover fees
  • Section 74.16 order for compensation, temporary help agency
  • Section 74.17 order re: client reprisal
  • Section 103 order for wages
  • Section 104 order for compensation or reinstatement
  • Section 108 compliance order

This section provides the parties and the Board with a mechanism to ensure a timely decision on a review.

Termination of proceeding — s. 124(2)

Where the condition in s. 124(1) is present, s. 124(2) enables the chair to terminate the proceeding on the application of a party in the proceeding.

Re-institution of proceeding — s. 124(3)

Section 124(3) allows the chair to re-institute proceedings it has terminated under s. 124(2), on terms and conditions it considers appropriate. The re-institution of proceedings under this section will enable the chair to direct, for example, that a decision be made within a specified period of time.