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Federally Regulated Employers: Understanding what laws govern your workplace.

Approximately 90% of workplaces in Ontario are governed by the employment laws enacted by the Ontario government. However, some Canadians do not fall under that provincial jurisdiction, but instead are considered “federally regulated”. Federally regulated workplaces are governed by legislation enacted by the Government of Canada instead of the Province of Ontario.

Most Ontario employment law articles or publications focus on the law and issues applicable to the majority. However, if you are a federally regulation employee or employer, it is important to understand how these federal employment laws differ from the Ontario employment law.

What is a Federally Regulated Employer or Workplace?

The answer to this questions goes back to confederation. So you don’t fall asleep, I will keep it very brief. When Canada was formed, the provinces and the federal government divided up power and responsibilities into discrete buckets. Those areas which were assigned to the federal government, to this day, are the industries that are governed by the Government of Canada and it’s laws.

The industry sectors that are federally regulated, include:

  • Banks
  • Marine shipping, ferry and port services
  • Air transportation, including airports, aerodromes and airlines
  • Railway and road transportation that involves crossing provincial or international borders
  • Canals, pipelines, tunnels and bridges (crossing provincial borders)
  • Telephone, telegraph and cable systems
  • Radio and television broadcasting
  • Grain elevators, feed and seed mills
  • Uranium mining and processing
  • Businesses dealing with the protection of fisheries as a natural resource
  • Many First Nation activities
  • Most federal crown corporations, and
  • Private businesses necessary to the operation of a federal act

Is my Workplace Federally Regulated?

The Canadian Government keeps records of all Federally regulated corporations with 100 or more employees across Canada a copy of the most recently published list from 2017 can be searched through here:

List of Federally Regulated Employers

1456998 Alberta Ltd.

1507953 Ontario Inc. (Inactive)

1791949 Ontario

2635-8762 Québec Inc.

2701545 Canada Inc.

3903214 Canada Inc.

4Tracks Ltd.

591182 Ontario Ltd.

6240143 Canada Inc.

6422217 Canada Inc.

9007-6720 Québec Inc.

9064-4287 Québec Inc.

9736140 Canada Inc.

A. Beaumont Transport Inc.

A.J. Bus Lines Ltd.

Acadia Broadcasting Limited

Access Communications Co-operative Limited

Accessible Media Inc.

ADM Agri-Industries Ltd.

Administration portuaire de Montréal

Aéroport de Québec Inc.

Aéroports de Montréal

Aevitas Inc.

Agri-Marché Inc.

Agrifoods International Cooperative Ltd.

Agris Co-operative Ltd.

Air Canada

Air Canada Rouge LP

Air Creebec Inc.

Air Georgian Limited

Air Inuit Ltd/Ltée

Air North Charter & Training Ltd.

Air Tindi Ltd

Air Transat inc.

Airbus Helicopters Canada Limited

Airport Terminal Services Canadian Co.

AirSprint Inc.

Algoma Central Corporation

ALL Communications Network

All-Can Express Ltd.

Alliance Pipeline Ltd.

Alliance Pulse Processors Inc.

Alpine Aerotech LP

Alpine Helicopters Inc.

American Airlines, Inc.

Amex Bank of Canada

Andy Transport Inc. (90 employees in 2018)

Apex Motor Express Inc.

APPS Cargo Terminals Inc.

Archipelago Marine Research Ltd.

Ardent Mills

Armour Transport Inc.

Arnold Bros. Transport Ltd.

Association des employeurs maritimes

ATCO Structures & Logistics

ATI Telecom International Co.

Atlantic Towing Limited

ATS Andlauer Transportation Services LP.

ATS Services Ltd.

Autobus Campeau Inc.

Autobus Idéal Inc.

Aveda Transportation and Energy Services Inc.

Avex Flight Support Inc.

Avmax Aviation Services Inc.

AYR Motor Express Inc.

B&R Eckel’s Transport Ltd.

Bandstra Transportation Systems Ltd

Bank of America National Association, Canada Branch

Bank of Canada

Bank of Montreal

Banque Laurentienne du Canada

Banque Nationale du Canada

Bay Ferries Limited

Bearskin Lake Air Service LP.

Bell Canada

Bell Solutions Techniques Inc.

Bessette & Boudreau Inc.

Big Freight Systems Inc.

Bison Transport Inc.

Blackburn Radio Inc.

Blue Ant Media Inc.

BNP Paribas

Bradley Air Services Limited

Bragg Communications Inc.

Brasseur Transport Inc.

Brett-Young Seeds Limited

Brian Kurtz Trucking Ltd.

Bridgewater Bank

Brink’s Canada Limited

British Columbia Maritime Employers Association

Bruce Power LP

Bruce R. Smith Limited (Inactive)

Business Development Bank of Canada

BWXT Nuclear Energy Canada Inc. / BWXT ITG Canada, Inc.

C.A.T. Inc.

Calm Air International LP

Cam-Scott Transport Ltd.

Cameco Corporation

Can-Am West Carriers Inc.

Canada Cartage System Limited Partnership

Canada Council for the Arts

Canada Deposit Insurance Corporation / La Société d’assurance-dépôts du Canada

Canada Malting Company Ltd.

Canada Mortgage and Housing Corporation

Canada Pension Plan Investment Board

Canada Post Corporation

Canadian Air Transport Security Authority

Canadian Broadcasting Corporation / Société Radio-Canada

Canadian Commercial Corporation

Canadian Imperial Bank of Commerce

Canadian Light Source Inc.

Canadian Museum for Human Rights

Canadian Museum of History

Canadian Museum of Nature

Canadian National Railway Company

Canadian North Inc.

Canadian Nuclear Laboratories

Canadian Pacific Railway Limited

Canadian Payments Association

Canadian Press Enterprises Inc.

Canadian Tire Bank

Canadian Western Bank

Cancrew Enterprises Ltd.

Candu Energy Inc.

Canpar Express Inc.

Capital One Bank (Canada Branch)

Cardinal Couriers Ltd.

Cargair Ltd.

Cargill Limited

Cargo Airport Services Canada Inc.

CargoJet Airways Ltd.

Caron Transportation Systems Partnership

Cascade Aerospace Inc.

Cascade Energy Services LP

Cassens Transport ULC

Cassidy’s Transfer & Storage Limited

Cathay Pacific Airways Limited

Cavalier Transportation Services Inc.

Central Mountain Air Ltd.

CEVA Freight Canada Corp.

CEVA Logistics Canada, ULC

Challenger Motor Freight Inc.

Chartright Air Inc.

CHC Helicopter Group of Companies

Chemin de fer QNS&L

Citibank Canada

City of Ottawa

Clean Harbors Canada Inc.

Coastal Pacific Xpress Inc.

Cogeco Connexion Inc.

Cogeco Média Acquisitions Inc.

Colispro Inc.

Comwave Networks Inc.

Conair Group, Inc.

Concentra Bank

Connors Transfer Limited.

Consolidated Fastfrate Inc.

Contrans Flatbed Group LP

Contrans Services LP

Contrans Tank Group LP

Cooney Group Inc.

Corporation des Pilotes du Saint-Laurent Central inc.

Corporation du Fort St-Jean

Corus Entertainment Inc.

Cougar Helicopters Inc.

CWS Logistics Ltd.

D&W Forwarders Inc.

D.C.T. Chambers Trucking Ltd.

Day & Ross Inc.

Defence Construction (1951) Ltd.

Delta Air Lines, Inc.

Denny Bus Lines Ltd.

Desgagnés Marine Cargo Inc.

DHL Express (Canada), Ltd.

Dicom Transportation Group

Direct Limited Partnership

Distributel Communications Limited

Doug Coleman Trucking Ltd.

DP World (Canada) Inc

Dufferin Communications Inc.

Earl Paddock Transportation Inc

Eassons Transport Ltd.

ECL Carriers LP

Edmonton Regional Airports Authority

Elgin Motor Freight Inc.

Enbridge Employee Services Canada Inc.

ENTREC Corporation

Envoy Air Inc.

Equitable Bank

Erb Enterprises Inc.

Execaire, a division of I.M.P. Group

Execulink Telecom Inc.

Executive Flight Centre Fuel Services Ltd.

Expertech Network Installation Inc./Expertech Bâtisseur de reseaux Inc

Export Development Canada

F. Ménard Inc.

Fairchild Radio Group Ltd.

Fairchild Television Ltd.

Farm Credit Canada

Federal Express Canada Corporation

Fedex Freight Canada Corp.

FedEx Ground Package System, Ltd.

Fednav Limited

Ferus Inc.

Fibernetics Corporation

Field Aviation Company Inc.

First Canada ULC

First Team Transport Inc.

Floradale Feed Mill Limited

Flying Colours Corp

Formula Powell L.P.

Freshwater Fish Marketing Corporation

Fugro Canada Corporation (INACTIVE)

G. Zavitz Limited

G3 Canada Limited

Gardewine Group Limited Partnership

GCT Canada Limited Partnership

Gestion TForce Inc.

Gilbert M. Rioux et Fils Ltée.

Glen Tay Transportation (Inactive)

Golden West Broadcasting Ltd.

Grace Transport Inc.

Grain Millers Canada Corp.

Great Canadian Railtour Company Ltd.

Great Slave Helicopters Ltd.

Greater Toronto Airports Authority

Greyhound Canada Transportation ULC.

Grimshaw Trucking L.P.

Groupe Galland

Groupe Guilbault Ltée

Groupe Robert

Groupe Transport Morneau inc.

Groupe TVA Inc.

Groupe TYT Inc.

Groupe V Média

H & R Transport Limited

Halifax Employers Association

Halifax International Airport Authority

Hallcon Crew Transport Inc.

Hammond Transportation Ltd.

Hapag-Lloyd (Canada) Inc

Harvard Broadcasting Inc.

Hélicoptères Canadiens Limitée/Canadian Helicopters Limited

Helijet International Inc.

Henri Sicotte inc

Hensall District Co-operative Inc.

Highland Moving and Storage Ltd.

HomeEquity Bank

HSBC Bank Canada

Hudbay Minerals Inc.

Hudson Bay Railway Company

Hughson Trucking Inc. (Inactive)

Hutton Transport Limited

Hyndman Transport Limited

ICICI Bank Canada

ILTA Grain Inc.

IMP Group Limited – Aerospace Division

Industrial and Commercial Bank of China (Canada)

Information Communication Services

Inmarsat Solutions (Canada) Inc.

Innotech Aviation, a division of IMP Group Limited

Instech Télécommunication Inc.

Intek Communications Inc.

International Air Transport Association

International Development Research Centre

International Truckload Services Inc

Iron Range Bus Lines Inc.

Island Tug and Barge Ltd.

J & R Hall Transport Inc.

J & T. Murphy Limited

Jade Transport Ltd.

Jay’s Transportation Group Ltd.

Jazz Aviation L.P.

Jervis B. Webb Company of Canada, Ltd.

Jet Transport Ltd.

Jim Pattison Industries Ltd.

Jones Feed Mills Limited

JPMorgan Chase Bank, N.A.

KEB Hana Bank Canada

Keewatin Air LP

Keith Hall & Sons Transport Limited

Kelowna Flightcraft Group of Companies

Keltic Transportation Incorporated

Kenn Borek Air Ltd.

Kindersley Transport Ltd.

Kleysen Group Ltd.

Kriska Holdings Limited

Kunkel Bus Lines Ltd.

L. Bilodeau et Fils ltée

L. Hansen’s Forwarding Ltd.

L. Simard Transport Ltée

L3 Technologies MAS inc

Laidlaw Carriers Bulk LP

Laidlaw Carriers Van LP

Lakehead Freightways Inc.

Le Groupe de Sécurité Garda Inc

Le Groupe Océan Inc.

Ledcor Industries Inc.

Les Distributions Carl Beaulac Inc.

Les Investissements Nolinor Inc.

Les Services JAG Inc.

Linamar Transportation Inc.

Link-on Communications Inc.

Lockheed Martin Commercial Engine Solutions

Logistec Arrimage Inc.

Lomak Bulk Carriers Corp. (Inactive)

Louis Dreyfus Company Canada ULC.

Lower Lakes Towing Ltd.

Mackie Moving Systems Corporation

Maersk Supply Service Canada Ltd.

Mantei’s Transport Ltd.

Manulife Bank of Canada

Marine Atlantic Inc.

Maritime Broadcasting System Limited

Masterfeeds Inc.

McClay Group Ltd.

McKeil Marine Limited

McKevitt Trucking Limited

Mediterranean Shipping Company (Canada) Inc.

Menzies Aviation (Canada) Ltd.

Midland Transport Limited

Minimax Express Transportation Inc.

Moe’s Transport Trucking Inc.

Montship Inc.

Morningstar Air Express Inc.

MTU Maintenance Canada Ltd.

MUFG Bank, Ltd., Canada Branch

Mullen Oilfield Services L.P.

Mullen Trucking Corp.

Multiboard Communications Inc.

My Broadcasting Corporation

National Arts Centre Corporation

National Capital Commission

National Gallery of Canada

National Museum of Science and Technology / Musée national des sciences et de la technologie

NAV CANADA

New Hope Transport Ltd.

New United Goderich Inc.

New-Life Mills, a Division of Parrish & Heimbecker, Limited

Nordion (Canada) Inc.

Normandin Transit Inc.

North Cariboo Flying Services Ltd.

Northern Communications Services Inc.

Northumberland Ferries Limited

Northwestel Inc.

Nuclear Waste Management Organization

Oceanex Inc.

Oculus Transport Ltd.

Office d’investissement des régimes de pensions du secteur public

Offshore Recruiting Services Inc.

Ontario Potato Dist. (Alliston) Inc. 1991

Ontario Power Generation

OpsMobil

ORANO Canada Inc.

Ornge Global Air Inc.

Ottawa Macdonald-Cartier International Airport Authority

P&H Milling Group, a division of Parrish & Heimbecker, Ltd.

Pacific Coastal Airlines Ltd.

Pacific Western Transportation Ltd.

Papineau Int. S.E.C. (Transport Papineau International)

Parrish & Heimbecker, Limited

Paterson GlobalFoods Inc.

Paul’s Hauling Ltd.

Pe Ben Oilfield Services L.P.

Pelmorex Corp.

Pembina Pipeline Corporation

Penske Logistics LLC

Perimeter Aviation LP

Pioneer Hi-Bred Production Company

Plains Midstream Canada

Pole Star Transport Incorporated

Polymer Distribution Inc.

Portage Transport Inc.

Porter Airlines Inc.

Premier Aviation Quebec inc.

Presidents Choice Bank

Primus Management ULC.

Prince Rupert Grain Ltd.

Provincial Aerospace Ltd.

Purolator Inc.

Q-Line Trucking

Quik X Transportation Inc.

Radio-Onde Inc.

Rawlco Radio Ltd.

Raytheon Canada Limited (The North Warning System)

Remorquage St-Michel Inc.

Richardson International Limited

Ridley Terminals Inc.

Rigel Shipping Canada Inc.

Rio Tinto Alcan, Installations Portuaires

RNC MEDIA INC.

Rockwater Energy Solutions

Rogers Communications Inc.

Rogers Foods Ltd.

Rosedale Transport Limited

Rosenau Transport Ltd.

Roxborough Bus Lines Limited

Royal Bank of Canada

RSB Logistic Inc. (Inactive)

Ryder Truck Rental Canada Ltd.

S.G.T. 2000 Inc.

Safeco Driver Services Inc.

Sander Geophysics Limited

Sanimax EEI Inc.

Scamp Transport Ltd.

Schneider National Carriers Canada

Scoular Canada Ltd.

Seaboard Liquid Carriers Limited

Seaspan ULC

Secunda Canada LP

Securiguard Services Ltd.

Securitas Transport Aviation Security Ltd.

Sentrex Communications Co.

Serco Canada Inc.

Service Trans-West inc.

Shaw Communications Inc.

Sheffield Moving & Storage Inc

Sirius XM Canada Inc.

SITA Information Networking Computing Canada Inc.

Sky Regional Airlines

Skyservice Aviation Inc. and Sky Service F.B.O Inc.

Snowbird Aviation Services Limited Partnership

Société de transport de l’Outaouais

Société du Vieux-Port de Montréal inc.

Sogetel inc.

Spearing Service L.P.

Speedy Transport Group Inc.

Standard Aero Limited

Standard Aero Ltd.

State Street Bank & Trust Company – Canada Branch

Stericycle ULC.

Steve’s Livestock Transportation (Blumenort) Ltd

Stingray Radio Inc.

Strategic Aviation Services Ltd.

Sunbury Transport Limited

Sunwest Aviation Ltd.

Sunwing Airlines Inc.

Sutco Contracting Ltd.

Swissport Canada Inc.

Symcor Inc.

Systèmes Danfreight inc.

Systemex Communications (S.C.) Inc.

T&T Trucking Ltd.

Tangerine Bank

Tata Communications (Canada) Ltd

Tbaytel

Teekay Shipping (Canada) Ltd.

TekSavvy Solutions Inc.

Téléfilm Canada

Telesat Canada

TELUS Communications Company

Tenold Transportation Ltd

TeraGo Networks Inc.

TFI Transport 5 LP

TFI Transport 7 LP

TForce Final Mile Canada Inc.

The Bank of Nova Scotia

The Calgary Airport Authority

The CSL Group Inc.

The Jacques Cartier and Champlain Bridges Incorporated

The Royal Canadian Mint

The St. Lawrence Seaway Management Corporation

The Toronto Terminals Railway Company Limited

The Toronto-Dominion Bank

The Trimac Group of Companies

Thompsons Limited

Thompsons Moving Group Limited

Three Star Trucking Ltd.

Thunder Airlines Limited

Tier2 Technologist LTD

Titanium Transportation Group Inc.

Top Aces Inc.

Toronto Port Authority

Total Oilfield Rentals Ltd

Trailwood Transport Ltd.

Trans Mountain Canada Inc.

Trans-Frt. McNamara Inc.

TransCanada Pipelines Limited

Transit Windsor

Transport A. Laberge & Fils Inc.

Transport Bellemare International

Transport Bernières inc. (Groupe Bernières)

Transport Bourret inc.

Transport Couture

Transport Gilmyr inc

Transport Grayson Inc.

Transport Guilbault Inc.

Transport Guy Bourassa Inc.

Transport Hervé Lemieux (1975) Inc.

Transport Inter-Nord Inc.

Transport Jacques Auger Inc.

Transport Jocelyn Bourdeau Inc.

Transport Lyon Inc.

Transport Sylvester & Forget Inc.

Transport TFI 1, SEC

Transport TFI 15 S.E.C. (Transport Grégoire)

Transport TFI 16 SEC

Transport TFI 19 SEC (Durocher International)

Transport TFI 22, S.E.C.

Transport TFI 23, S.E.C./TFI

Transport TFI 4 SEC

Transport TFI 6 S.E.C. (Transport Besner)

Transport Transbo Inc.

Transwest Air Limited Partnership by its General Partner Transwest Management Ltd.

TransX Ltd.

Trappers Transport Ltd.

Travelers Transportation Services Inc.

Trentway-Wagar Inc.

Tri-Line Carriers LP

TRJ Telecom Inc.

Trouw Nutrition Canada Inc.

Troyer Ventures Ltd.

TST Solutions L.P.

Universal Coach Line Ltd.

UPS Canada

V.A. Inc.

V.T.L. Express Inc.

Van-Kam Freightways Ltd.

Vancouver Airport Authority

Vancouver Fraser Port Authority

Vector Aerospace Engine Services – Atlantic

Vedder Transport Ltd.

Verreault Navigation inc.

Verspeeten Cartage Ltd.

VIA Rail Canada Inc.

Vianet Inc.

Vidéotron ltée

Vista Radio Ltd.

Viterra Inc.

Voyageur Aviation Corp.

Wallenstein Feed & Supply Ltd.

Warren Gibson Limited

Wasaya Airways Limited Partnership

Wells Fargo Bank N.A., Canadian Branch

West Wind Aviation LP

Westcan Bulk Transport Ltd.

Westcoast Energy Inc.

Western Logistics Inc.

Western Stevedoring Company Limited

WestJet, an Alberta Partnership

Westman Media Cooperative Ltd.

Westower Communications Ltd.

Westshore Terminals Limited Partnership

Wills Transfer Limited

Wilson’s Transportation Ltd.

Windsor Disposal Services Ltd.

Winnipeg Airports Authority Inc.

WireComm Systems (2008), Inc.

Withers L.P.

XPO logistics Freight Canada, Inc.

XTL Transport Inc

Yellowhead Helicopters Ltd.

YRC Freight Canada Company

Zayo Canada Inc.

Zim Integrated Shipping Services (Canada) Co. Ltd.

What are the differences between Federally Regulated and Provincially Regulated workplaces?

The difference between federally regulated and provincially regulated workplaces comes down to the difference in the written laws (statutes) that govern. While most Ontario workplaces are governed by the Employment Standards Act, the Ontario Human Rights Code, and the Occupational Health and Safety Act, federally regulated workplaces are governed by the Canada Labour Code and the Canadian Human Rights Act.

Employment Standards Act vs the Canada Labour Code

While both the federal and provincial governments have established minimum employment standards to protect employees, the differences between the Employment Standards Act and the Canada Labour Code are significant, especially in the area of termination and wrongful dismissal.

In Ontario, under the Employment Standards Act, employers can fire employees at any time for any non-discriminatory reason. However, under the Canada Labour Code, employees in non-management positions cannot be terminated without just cause. In Wilson v Atomic Energy Canada, the  Supreme Court of Canada confirmed that a federally regulated employer cannot simply dismiss an employee on a “without cause” basis and provide severance arrangements.

In other words, most federally regulated employees cannot be fired unless they are guilty of serious misconduct (i.e. just cause) or if their position is legitimately no longer required (i.e. after the closure of a business). Unlike most Ontario employees, employees regulated by the Canada Labour Code have a right to keep their job.

As I discussed in more detail in my article on Termination of the Employment Relationship: “Termination for cause has been described by the Ontario courts as the “capital punishment” of the employment relationship. It is typically very difficult for an employer to prove willfull misconduct or cause.” Accordingly, federally regulated employees have much greater job protection than the majority of Ontario workers.

Human Rights

In terms of Human Rights law the difference between federal and provincial employers is minimal. All employers are entitled to work free from discrimination.


Contact Justin W. Anisman

Contact Justin W. Anisman, the author of this blog, about any employment law related questions or issues you may be facing. Call 416-304-7005 or email him at janisman@btlegal.ca.

Justin W. Anisman is an Employment Lawyer at the Toronto law firm Brauti Thorning LLP. Justin advises both companies and individuals in all aspects of employment law including wrongful dismissal, human rights and discrimination.


The publications made on this website are provided and intended for general introductory information purposes only. They do not constitute legal or other professional advice, or an opinion of any kind. Speak to a professional before making decisions about your own particular circumstances.

Temporary Layoffs: What Everyone Needs to Know

Temporary layoffs are an attractive option for employers facing economic downturn, business or financial troubles, or a global pandemic like COVID-19. While it may appear to be a good way to eliminate staff without paying termination pay or severance, there are many misconceptions that both employers and employees have.

This article aims to help you understand everything you need to know about temporary layoffs under Ontario employment law and should be used as a guide whether you are a business owner considering laying off staff or an employee who was laid off.

Temporary Layoffs Are Not Allowed for Most Employees

The first and most important thing to understand about temporary layoffs is that in most situations they are not allowed. There is no implied right to layoff an employee. Even though the ESA provides guidelines concerning the maximum length of a temporary layoff, the Ontario Courts do not permit an employer to layoff, or suspend an employee, without pay, unless:

  1. It is one of the written terms in the employment contract; or
  2. The layoff or suspension was agreed to by both employee and employer—this agreement can take the form of a written contract, a well-communicated policy or indirectly through a widely known practice within your employer’s organisation or industry (i.e. seasonal workers, construction industry, etc…).

Any layoff (even a temporary one) that doesn’t meet the above test is a constructive dismissal. The foundational case on this issue is Stolze v. Addario, 1997 CanLII 764, by the Ontario Court of Appeal, in which the Court wrote:

… the absence of evidence of a policy or practice within the employer company of laying off “key” employees, constitutes the lay-off a repudiation of a fundamental term of this employee’s contract. He was, therefore, constructively dismissed.

Read my earlier article Termination of the Employment Relationship in Ontario for more information.

Only if the employer makes it over this first and difficult hurdle, does the law concerning temporary layoffs become relevant.

What is a Temporary Layoff?

A temporary layoff is when a employee’s hours are reduced or eliminated on a short term basis with the intention that they will shortly be recalled. At the time an employee is laid off, an employer is not required to provide a specific recall date, however, if they do, they must generally comply with it.

The maximum length of a temporary layoff is specifically defined in the Employment Standards Act (“ESA”). If an employee’s layoff lasts even just one day longer than the specified time set out in the ESA, then the employee has been terminated retroactive to the first date of the layoff. As a result, that terminated employee is entitled to pay in lieu of notice and severance. 

The definition of temporary layoff according to the Employment Standards Act is as follows:

What constitutes termination
56 (1) An employer terminates the employment of an employee … if, …

(c) the employer lays the employee off for a period longer than the period of a temporary lay-off.

Temporary lay-off
(2) For the purpose of clause (1) (c), a temporary layoff is,

(a) a lay-off of not more than 13 weeks in any period of 20 consecutive weeks;

(b) a lay-off of more than 13 weeks in any period of 20 consecutive weeks, if the lay-off is less than 35 weeks in any period of 52 consecutive weeks and,

(i) the employee continues to receive substantial payments from the employer,

(ii) the employer continues to make payments for the benefit of the employee under a legitimate retirement or pension plan or a legitimate group or employee insurance plan,

(iii) the employee receives supplementary unemployment benefits,

(iv) the employee is employed elsewhere during the lay-off and would be entitled to receive supplementary unemployment benefits if that were not so,

(v) the employer recalls the employee within the time approved by the Director, or

(vi) in the case of an employee who is not represented by a trade union, the employer recalls the employee within the time set out in an agreement between the employer and the employee;

If the specific requirements for a layoff to be considered “temporary” are not met than that layoff is a termination. In a nutshell (and explained in more detail below), if your layoff lasts longer than the temporary layoff time periods or does not meet any of the conditions set out above, the employer is considered to have terminated the employee’s employment. The employee will therefore be entitled to termination pay, severance or damage for wrongful dismissal

Temporary Layoffs of More than 13 Weeks but less than 35 Weeks

A layoff more than 13 weeks but less than 35 weeks, can only be considered temporary where at least one of the following conditions are met:

  1. The employee continues to receive substantial payments from the employer;
  2. The employer continues to make RRSP, pension plan, or group health and/or dental insurance plan contributions;
  3. The employee receives supplementary unemployment benefits (or would be entitled to receive this benefits if not for the employee having alternative employment during this period); or
  4. the employer recalls the employee within the time approved by the Director.

Ongoing “Substantial Payments” or Benefit Plan Contributions by Employer

The payments contemplated under 1 and 2 need to have been made throughout the entire period of the temporary layoff in order to satisfy this condition. If the employer did not make regular and on going payments during the first 13 weeks of the temporary layoff or stopped making payments at any time, this condition is not satisfied.

The term “substantial payment” is not defined and will likely depend on any individuals particular employment circumstances. Employers and employees should consider getting legal advice on this requirement because it will be highly case specific.

With respect to benefit plans, specifically, the terms of the plans provided by the employer must be the same as before the layoff began (unless the employee specifically agreed to an amendment to the plan or the amendment was made for a legitimate cause such as a legislative change). Employers cannot drastically cut benefits and then continue making the reduced payment in an attempt to get around this requirement.

Supplementary Employment Benefit (SUB) Plans

The Government of Canada offers a program called the Supplementary Unemployment Benefit Plans (SUB Plans) that provides employers with the ability to set up and provide additional financial assistance to employees during a period of layoff due to temporary stoppage of work, training, or illness, injury or quarantine.

If an employer has a SUB plan, employees will likely already know about it. This plan provide to employees a top up of some amount over and above EI. For more details consider the Government of Canada’s Guide to Supplementary Employment Benefit Program.

Approval by Director of the Ministry of Labour

In special circumstances the Director of the Ministry of Labour can provide exceptions to certain employers. Employers would be obliged to inform their employees.

Other Frequently Asked Questions

How do employees recall temporarily laid off employees?

During a temporary layoff, an employer upon notice to their employee, can set a recall date requiring the employee to return. Typically, this is done by the employer providing a “recall notice” informing the employee of the return to work date.

What happens if an employee is recalled in a situation where the layoff was wrongful or not temporary?

If an employee is provided with a recall date that either (a) falls outside or afoul of the temporary layoff provisions in the ESA, or (b) in the course of a layoff that was never permitted in the first place, then the employee has two options:

  1. Return to work and abandon his claim to termination pay, severance pay and/or damages for wrongful dismissal; or
  2. Refuse to return to work and claim constructive dismissal,

Only in rare circumstances are both options available. If an employee refuses to return to work and claim constructive dismissal they would be obliged to comply with their Duty to Mitigate.

What happens if an employer is unable to recall an employee during a temporary layoff? 

If an employer is unable to recall the laid off employee for any reason, even if doing so was unintentional or through no fault of their own, the layoff becomes a termination and the employee is entitled to termination pay, severance pay and/or damages for wrongful dismissal.

What if an employee’s job is no longer available?

Generally, an employee should be recalled to the job they had before the layoff. However, if the job is no longer available, the employee must be given a similar or comparable position with the same or greater benefits and pay.

What if an employee refuses to return after a temporary layoff?

Employees are considered employed during a temporary layoff and, therefore, are required to return upon being recalled by their employer. A refusal to return may be considered job abandonment.

What about temporary layoffs for unionised workers?

The above legal information is generally applicable only to non-unionized employees. If you are in a union you need to speak with your union representatives.

What about temporary layoffs because of COVID-19?

The COVID-19 pandemic is novel and unprecedented. While it may not have an effect on the current law, it is important to understand that there is no way to know for certain how Ontario employment law might change or how the Courts may react. If you are facing a particular employment issue because of COVID-19, you should speak to a lawyer. 


Contact Justin W. Anisman

Contact Justin W. Anisman, the author of this blog, about any employment law related questions or issues you may be facing. Call 416-304-7005 or email him at janisman@btlegal.ca.

Justin W. Anisman is an Employment Lawyer at the Toronto law firm Brauti Thorning LLP. Justin advises both companies and individuals in all aspects of employment law including wrongful dismissal, human rights and discrimination.


The publications made on this website are provided and intended for general introductory information purposes only. They do not constitute legal or other professional advice, or an opinion of any kind. Speak to a professional before making decisions about your own particular circumstances.

Termination within Probation Periods

Probation at the start of employment may seem simple, but they don’t always automatically allow employers to fire someone in their first 3 months free and clear. Probationary periods are actually legally intricate.

Employees terminated during probationary periods often accept their fate without seeking legal advice when in many cases they may be eligible for severance payments (even severance payments of several months or more). Likewise, employers may dismiss an employee within a probationary period only to be surprised and unprepared when they’re told termination pay for wrongful dismissal is owed.

Purpose and Effect of Probation Periods

The reason for probationary periods in employment contracts is to provide a safeguard to employers. It allows an employer a period of time to assess a new hire on their suitability for the role. This benefits employees to the extent that an employer may be more willing to take a chance on an employee they are not certain about, if they have a period of time to change their mind without consequence.

The Ontario Employment Standards Act (“ESA“) does not define probation or probationary period. Instead, it allows an employer to terminate an employee without cause in the first three months of employment, without notice or pay in lieu of notice. It frequently doesn’t matter, therefore, for the purposes of the Employment Standards Act whether an employment contract contains a probationary clause (although it is important that the probationary clause does not provide for less notice than the minimums required under the ESA). If an employee is employed less than 3 months, under the ESA, he or she gets no ESA notice. If an employee is employed 3 months or more they are entitled to ESA notice. The existence, or lack thereof, of a probationary clause doesn’t change this.

The true purpose of a probationary period in an employment contract is to rebut the common law rule that employees are entitled to reasonable notice.

It may come as a surprise to some that even if you’ve been employed for a single day (or even if you haven’t started yet), the Courts have declared that terminated employees are entitled to some form of notice or pay-in-lieu of notice. In fact, recent trends in case law, suggest that short term employees (people employed only a few months) may be entitled to even more notice. A properly drafted and enforceable probationary clause may rebut this presumption and disentitle employees on probation to notice.

Termination within Probation Periods

In order for an employee to be subject to a probationary clause it generally must be:

  1. expressed (in writing) – the courts will not imply the existence of a probation period;
  2. it must be neither vague or ambiguous; and
  3. it must not provide for less notice than the minimums set out in the ESA

Further, and most critically, in order for an employer to be relieved from paying reasonable notice to the terminated probationary employee, it must act in good faith. This means that it must have provided the employee with a fair opportunity to demonstrate their suitability for the role and acted fairly in determining that the employee was unsuitable for the role.

Suitability

Defining “suitability” can be challenging. The Courts recognise that assessments of probationary employees involve the consideration of factors that are intangible and subjective. As a result, they often extend wide discretion to employers. Overall, the grounds used to establish unsuitability must be reasonable and must demonstrate that employees are given a fair chance to meet the requirements of the job.

Example of factors that may be taken into consideration to determine suitability of a probationary employee are as follows:

  • Performance
  • Attitude and compatibility
  • Capability and skill
  • Capacity to meet future production requirements

Clear and Unambiguous

Courts pay strict attention to the wording and language of any probationary periods. They must be clear and unambiguous. The court will not likely imply a probationary clause from the contract term “employee performance will be reviewed after three months”. However, in at least one case, the Ontario Court of Appeal concluded that the clause “Probation… six months” was enforceable and that the word “probation” in that case had a clear and unambiguous meaning that the employer could rely on to limit the employee’s notice. See for example: Nagribianko v. Select Wine Merchants Ltd., 2017 ONCA 540 (CanLII)

Best Practices for Employers

Best practice is for an employer to take steps to document the specific actions taken to determine suitability or unsuitability. Employers should:

  • Communicate the expected reasonable standards;
  • Inform the employee of any deficiencies as they arise;
  • Explain that any failure to address and try to improve deficiencies will result in termination of employment at the end of the probation period; and
  • Provide the employee with a chance to show that they tried to improve.

The important thing for employers to do, is to honestly treat the probationary period as a time for evaluation and training. The employer should work with the employees on a regular basis to determine if they can be transitioned into the role successfully. Actions taken to carefully assess, advise and remedy performance issues should be evident. Any decision about dismissal should not be made at the last moment, give regular performance review so that a decision to terminate prior to the end of the probationary period isn’t a surprise to anyone.

If you are interested in learning how to update your employment contracts to include a probation period, take a look at my article “How to Change Employment Contracts” or feel free to contact me.

Tips for Employees

Anyone terminated from their employment, whether within a probationary period or otherwise, should seek legal advice. 


Contact Justin W. Anisman

Contact Justin W. Anisman, the author of this blog, about any employment law related questions or issues you may be facing. Call 416-304-7005 or email him at janisman@btlegal.ca.

Justin W. Anisman is an Employment Lawyer at the Toronto law firm Brauti Thorning LLP. Justin advises both companies and individuals in all aspects of employment law including wrongful dismissal, human rights and discrimination.


The publications made on this website are provided and intended for general introductory information purposes only. They do not constitute legal or other professional advice, or an opinion of any kind. Speak to a professional before making decisions about your own particular circumstances.

Negotiating Maximum Termination Pay and Severance Pay

Often, people who lose their job assume that if they receive any termination pay, severance pay, or pay in lieu of notice then they must have been properly compensated for being fired. This is far from the case. There are many factors and considerations a person should be aware of when figuring out what their termination entitlements are and more often than not an employment lawyer can help them get what is fair.

Statutory Minimum Notice Periods VS Common Law Notice Periods

Upon being fired, an employee is entitled to receive either (1) working notice, or (2) pay-in-lieu of notice. Working notice is not unusual but more often than not an employee is unhappy about being fired and an employer is concerned that the employee may do something to hurt the employer’s business while working to the end of the notice period. For that reason, employers usually chooses to terminate the employee immediately and, provide pay in lieu of notice.

The Employment Standards Act contains only the minimum entitlements that employees must receive on termination. Likewise, the Canada Labour Code sets out the minimum notice periods and severance entitlements for federally regulated employees (i.e. banking and telecommunications). However, just like the minimum wage, most employees should get a lot more than the minimums.

Judge made law or otherwise the law made by the Courts is called the “common law”. It entitles most employees to “reasonable notice”. Reasonable notice is much greater than the statutory minimums. Employees default to getting common law reasonable notice, unless they have a written employment contract that says otherwise.

There is no set formula to calculate common law notice. Generally, it is accepted that the average short-term employee is owed three to six months of notice, a long-term employee in a senior position may be owed up to 24 months or more, and somewhere in the middle for the other lengths of employment. How senior the employee’s position is will also be a factor. For example, a vice president or manager may be entitled to higher pay in lieu of notice that an employee doing a low level job, even for the same length of time. The employee’s age and the availability of alternative employment are also factors the Courts consider.

You can learn more about ‘Reasonable Notice’ and what the appropriate length is for different employees in my earlier article on “How much notice/severance should I get after being fired?.”

Termination Clauses

A termination clause in an employment contract alters an employee’s entitlements to common law reasonable notice. While it could technically provide for more, more often than not, employers include termination clauses to limit what an employee would otherwise get after being fired. Termination clauses cannot limit entitlements to below the minimums.

Where there is a valid and enforceable termination clause, an employee would not be successful if they attempted to seek more in a wrongful dismissal action. Fortunately, the Courts are often persuaded to strike out termination provisions. There are a number of different reasons that a court might find a termination clause unenforceable, such as pressure being put on the employee at the time of signing of the contract or where the limits on the severance pay are less than the minimums. If the termination clause is successfully struck out common law notice applies.

An experienced employment lawyer can offer advice on options on how to deal with terminations — for example whether one should sue for wrongful dismissal or alternately file a claim for termination pay or severance pay with the Ministry of Labour. It should be noted that a person cannot do both – sue for wrongful dismissal and file a claim for termination or severance pay. Seeking legal advice on rights is recommended to make the right decision. An employment lawyer can also help ensure payments for common law notice are maximized either through court action or a negotiated settlement.

When are termination clauses unenforceable?

In Movati Athletic Group v Bergeron, an employee had worked for about 16 months before she was terminated without cause. Purporting to rely on the termination clause in her contract, the company gave her the minimum entitlements under Ontario’s Employment Standards Act, 2000 (ESA). The employee claimed damages for wrongful dismissal arguing that the termination clause in her employment contract was not clear enough to rebut the presumption that she was entitled to common law reasonable notice of termination.

The court found the termination clause not clear and as a result, the employee received three months’ pay in lieu of reasonable notice of termination instead of her statutory minimum entitlements. This case illustrates how important it is for employers to make all efforts to expertly craft termination clause wordings and how important it is for employees to have their employment contracts checked by a lawyer before deciding whether it is actually enforceable.

A court will not enforce a termination clause that excludes minimum statutory entitlements upon dismissal as set out in the ESA or Canada Labour Code. It is illegal for an employer to provide less than the minimum standards of the ESA or Code, even if the employee has voluntarily agreed to accept a lower amount. Additionally, a court will not enforce a termination clause if it has not been properly drafted. Poorly drafted clauses are very common and any ambiguity in the language in the termination clauses usually acts against the employer.

Termination Provisions must use the clearest possible language when trying to limit an employee’s rights upon termination. Failing to use explicit language leaves the door open for varying views and interpretations of intention and, therefore, the clause may be set aside by a court for ambiguity.  Courts resolve drafting ambiguities in favour of employees.

Laws on termination clauses continue to evolve. It is important to keep abreast of changes and consult with employment lawyers when employers are drafting clauses or when you, an employee, are terminated


Contact Justin W. Anisman

Contact Justin W. Anisman, the author of this blog, about any employment law related questions or issues you may be facing. Call 416-304-7005 or email him at janisman@btlegal.ca.

Justin W. Anisman is an Employment Lawyer at the Toronto law firm Brauti Thorning LLP. Justin advises both companies and individuals in all aspects of employment law including wrongful dismissal, human rights and discrimination.


The publications made on this website are provided and intended for general introductory information purposes only. They do not constitute legal or other professional advice, or an opinion of any kind. Speak to a professional before making decisions about your own particular circumstances.

Time to Update your Workplace ESA Poster

The Ministry of Labour has just released version 8.0 (January 2019) of its mandatory Employment Standards Act poster. The poster is available in multiple languages on the Ministry of Labour website, but you can downloaded it English right here:

All workplaces governed by the Employment Standards Act (the “ESA“) are required to:

  1. Display this poster in a conspicuous place;
  2. provide a copy to each current employee;
  3. provide a copy to all new employees within 30 days of hiring.

Employees can be provided with a physical copy of the the poster or it can be sent to them electronically. Failure to do the above is a breach of the ESA and can have serious consequences for employers.


Contact Justin W. Anisman

Contact Justin W. Anisman, the author of this blog, about any employment law related questions or issues you may be facing. Call 416-304-7005 or email him at janisman@btzlaw.ca.

Justin W. Anisman is an Employment Lawyer at the Toronto law firm Brauti Thorning Zibarras LLP. Justin advises both companies and individuals in all aspects of employment law including wrongful dismissal, human rights and discrimination.


The publications made on this website are provided and intended for general introductory information purposes only. They do not constitute legal or other professional advice, or an opinion of any kind. Speak to a professional before making decisions about your own particular circumstances.

Uber Class Action Given the Green Light to Proceed by Ontario Court of Appeal

The Ontario Court of Appeal has now ruled that the proposed class action law suit against Uber is not barred by the Arbitration Clause in Uber’s contract.

I last wrote about the case of Heller v. Uber Technologies Inc. in March 13, 2018 in my article Arbitration Clause in Employment Contract puts the Breaks on the Uber Class Action in Ontario. At that time, the Honourable Mr. Justice Paul M. Perell found, among other things, that:

  • the plain language of the Employment Standards Act (the “ESA“), does not restrict the parties from arbitrating; and
  • the arbitration clause was not unconscionable.

Interestingly, Justice Perell seemed to believe that the legal result was “absurd public policy”.

It will come as a relief not only to the thousands of Uber Drivers but many employees in Ontario, that the Court of Appeal has reversed this decision.


Contact Justin W. Anisman

Contact Justin W. Anisman, the author of this blog, about any employment law related questions or issues you may be facing. Call 416-304-7005 or email him at janisman@btzlaw.ca.

Justin W. Anisman is an Employment Lawyer at the Toronto law firm Brauti Thorning Zibarras LLP. Justin advises both companies and individuals in all aspects of employment law including wrongful dismissal, human rights and discrimination.


The publications made on this website are provided and intended for general introductory information purposes only. They do not constitute legal or other professional advice, or an opinion of any kind. Speak to a professional before making decisions about your own particular circumstances.

Right to Disconnect

Ontario’s Bill 148 may have created a right to disconnect – even for supervisors and managers

The right to disconnect – to leave your work at work, instead of buzzing in your pocket – is regarded as an aspiration instead of a reality for most Ontario employees. But there may already be a legal basis for the right to disconnect sitting right under our noses, in none other than the Employment Standards Act the (“ESA”).

What is the right to disconnect?

Given the ease of communication that modern technology has afforded, the lines between an employee’s work and private life are blurring more than was ever possible. Constant connection to the workplace has become the norm — even the expectation for many jobs.

The right to disconnect is a statutorily-protected right to ignore work-related calls, e-mails, and other electronic messages off-work hours. France was the first jurisdiction to legally adopt the right to disconnect in 2016.

Do Canadian employees have a right to disconnect?

No right to disconnect has been formally adopted in Canada, although the federal government is considering a right to disconnect for employees in federally-regulated industries, such as banks and telecommunications.

Is there any right to disconnect in Ontario?

Up until (arguably) the recent amendments to the ESA, no right to disconnect existed for Ontario employees. While being required to answer calls or e-mails on a Saturday morning, for instance, could entitle an employee to overtime pay, categorically refusing to do so could (in many cases) constitute misconduct.

Enter Bill 148’s new scheduling requirements

In 2017, Ontario passed Bill 148 – a retrofit of its employment standards to adapt to the changing realities of the modern workplace.  One of the changes to the ESA was the addition of Part VII.2, which deals with scheduling and on-call work.

Among other things, Part VII.2 of the ESA says this: in most cases, if your employer requires you to work on a day for which you’re not scheduled, they must provide you with: (a) at least 3 hours’ pay, regardless of how much time is actually spent working; and (b) at least 96 hours’ notice of the work. Without 96 hours’ notice of the work, the employee may refuse to work in most cases.

What do the scheduling requirements have to do with the right to disconnect?

The scheduling requirements in Part VII.2 of the ESA might mean that employees on a day off, for all intents and purposes, have a right to disconnect. That hinges on whether answering e-mails or phone calls constitutes “work” under the ESA.

While “work” is not defined under the ESA, Courts and Tribunals interpret the ESA in a way that extends maximum protection to employees. A court or tribunal is very likely to consider a requirement to answer phone calls or e-mails as “work”. That means that, for instance, if your boss emails you an urgent question about budget reports on Saturday morning, you are likely entitled to wait until Monday to figure out the answer.

What about supervisors and managers?

The conventional wisdom in Ontario is that, since supervisors and managers are exempt from all of the ESA’s rules regarding hours of work, those jobs are 24/7 gigs and employees must stay on top of work e-mails, even on their days off.

Interestingly, however, supervisors and managers are NOT exempt from the scheduling requirements Part VII.2 of the ESA. That means that, if a supervisor or manager has a right to specific days off, that employee also likely has the same right to disconnect as any other employees on those days.

Can employers get around this with creative scheduling?

Since this is fundamentally a matter of scheduling, one might wonder whether employers can get around this by simply “scheduling” their employees to answer work e-mails.

For non-managerial and non-supervisory employees, there are going to be at least some days where employees have a right to be off the grid; all such employees are guaranteed at least 24 hours free from work each week, and at least 48 hours free from work every 2 weeks. Employees cannot be required to work during those periods.

It is less clear whether employers can use this technique on supervisors and managers; there is nothing in the ESA preventing supervisors and managers from being on-call 24/7. However, Courts and Tribunals generally seek to avoid interpretations that allow employers to skirt the ESA and might easily reject an employer’s argument that the job requires 24/7 attention unless that is clearly borne out by the evidence.

Does that mean I can turn my work phone off when I’m not at work?

Probably not, due to the limits on the right to refuse work in this context. First, the right to refuse work only arises in respect of entire days off – for instance, it does not address after-hours e-mails on a workday. Second, the right to refuse work only arises if you have been given less than 96 hours’ notice. Third, the sections require an employee refusing work to “notify the employer of the refusal as soon as possible”, which in many cases sounds like more trouble than it’s worth.

What can I do about it?

We recognize that most employees do not want to create a conflict by insisting on their strict legal rights. If and when things get contentious, speak to a specialized employment lawyer. Call us today for advice on your workplace issue.

 


Contact Nicholas Goldhawk

Contact Nicholas Goldhawk, the author of this article, about any employment law related questions or issues you may be facing. Call 416-304-7010 or email him at ngoldhawk@btzlaw.ca.

Nicholas is an Associate of the Management-side Labour Group at BTZ. In this role, he advises management on all aspects of employment and labour law, including representation before administrative tribunals, collective agreement negotiations, arbitrations, wrongful dismissal defence, breach of contract, breach of fiduciary duty, and human rights.

Before joining BTZ, Nicholas articled and worked as an associate at a boutique labour and employment firm in Toronto where he assisted both employee and employer clients in formulating practical solutions for a wide variety of workplace-related issues.

Nicholas was called to the bar in 2017, after earning a J.D. from Osgoode Hall Law School. Prior to attending Law School, Nicholas obtained his Honours Bachelor of Journalism from Carleton University.

Before attending law school, Nicholas worked as an investigative journalist for a Canadian current affairs TV program.

Nicholas Goldhawk


The publications made on this website are provided and intended for general introductory information purposes only. They do not constitute legal or other professional advice, or an opinion of any kind. Speak to a professional before making decisions about your own particular circumstances.

How to Change Employment Contracts

Anytime you ask an existing employee to sign a new employment contract, it’s important to proceed cautiously. There are risks and pitfalls that wary employers may wish to avoid when making a change to their employment contracts. A misgauged approach may result in an unenforceable contract, or worse, result in a costly claim of constructive dismissal.

As set out below, the Ontario Courts have clarified generally two methods to change employment contracts. The first method is for when an employee consents and agrees to the changes, and the second is how to change employment contracts when the employee refuses.

Read more

Hours of Work and Breaks

The Law about Hours of Work

In Ontario, the Employment Standards Act (“ESA”) sets out the maximum daily and weekly limits on the hours of work. In general, the maximum number of daily and weekly hours are:

  • Eight (8) hours in a day or, if the employer establishes a regular work day of more than eight hours, the number of hours in its regular work day; and,
  • 48 hours of work per week.

An employee’s daily hours of work may exceed the maximum limits in the ESA if the employer and employee agree in writing. Likewise, an employee’s weekly hours of work may exceed the maximum limits if (a) the employee agrees, and (b) the employer obtains approval from the Director of Employment Standards. In addition to the employee’s agreement and the Director’s approval (for excess weekly hours), an employer must provide the employee with the most recent documents published by the Director of Employment Standards on Hours of Work.

If you are looking to apply to the Director of Employment Standards for excess weekly hours, or any reason, please do not hesitate to reach out to me.

Rescinding an Agreement for Excess Work

An employee can revoke an agreement to work excess hours on two weeks notice to the employer. An employer can revoke an agreement to work excess hours on reasonable notice to the employee.

Hours Free from Work

In general, an employee must receive at least:

  • eleven (11) consecutive hours off work each day;
  • eight (8) hours off work between shifts (if combined shifts exceed thirteen (13) hours);
  • either twenty-four (24) consecutive hours off work every week, or forty-eight (48) hours off work in every consecutive two-week period;

Daily Rest: the 11 Hour Rule

The daily rest requirement is mandatory. An employee and an employer cannot agree to less than eleven (11) consecutive hours off work each day. This maximum applies even if there is an excess daily hours of work agreement or an excess weekly hours of work agreement approved by the Director of Employment Standards.

This rule does not apply, however, to an employee who is on call and called in during a period in which the employee would not otherwise be expected to perform work for his or her employer.

It also does not apply in “exceptional circumstances”. The exceptional circumstances exception only applies if the employee is required to avoid serious interference with the ordinary working of the employer’s establishment or operations:

  • To deal with an emergency.
  • If something unforeseen occurs, to ensure the continued delivery of essential public services, regardless of who delivers those services.
  • If something unforeseen occurs, to ensure that continuous processes or seasonal operations are not interrupted. or,
  • To carry out urgent repair work to the employer’s plant or equipment.

Breaks and Lunch

Eating Periods, a.k.a. Lunch Breaks

An employer must provide an employee with an uninterrupted 30-minute eating period (lunch break) at intervals to ensure that the employee goes no more than five consecutive hours of work without a break to eat. If an employee and an employer agree, then the employee can be given two eating periods (i.e. two 15-minute breaks) in each consecutive five-hour period.

Unless the employee’s contract says otherwise, lunch breaks are unpaid. Further, lunch breaks are not included for the purpose of calculating hours of work, rest provisions, overtime pay or minimum wage entitlements under the ESA.

Coffee and Other Breaks

Besides eating periods, employees are not entitled to any other breaks.

If an employer elects to give other breaks to an employee then that break must be paid and included in calculating hours of work, rest provisions, overtime pay or minimum wage entitlements under the ESA, unless that employee is not required to remain at the place of employment.


Contact Justin W. Anisman

Contact Justin W. Anisman, the author of this blog, about any employment law related questions or issues you may be facing. Call 416-304-7005 or email him at janisman@btzlaw.ca.

Justin W. Anisman is an Employment Lawyer at the Toronto law firm Brauti Thorning Zibarras LLP. Justin advises both companies and individuals in all aspects of employment law including wrongful dismissal, human rights and discrimination.


The publications made on this website are provided and intended for general introductory information purposes only. They do not constitute legal or other professional advice, or an opinion of any kind. Speak to a professional before making decisions about your own particular circumstances.

Equal Pay in the Ontario Workplace

Over the past 30 years there has been a gradual progression to establish equal pay in the Ontario Workplace. For employers and human resource managers it’s important to recognize what your obligations are concerning equal pay and that these obligations are increasing.

The Pay Equity Act

For its time, the Pay Equity Act was revolutionary. Enacted in 1987, it requires equal pay between the sexes, not within one job classification, but for work of all job types that are of equal value. The classic example is the receptionist (which is female dominant) and the warehouse worker (which is male dominant). Both jobs are of equal value but the male dominant role is typically paid more.

The Pay Equity Act requires employers to assess the value of each job class and assign it a value based on the following factors:

  1. What qualifications are required?
  2. How much responsibility does the job class require?
  3. What level of effort is required (physical and mental)?
  4. What are the working conditions like (physical danger, stress-level, customer facing)?

If upon completing this analysis, two jobs are of equal value to the company then those jobs should be equally paid.

Equal Pay Under the Employment Standards Act

While the Pay Equity Act legislates equal pay for different work but of equal value, the Employment Standards Act (“ESA”) mandates that employers pay equally for work that is substantially the same. If two employees engage in work that requires the same skill, effort, responsibility, under the same working conditions and in the same establishment, those employees should be equally paid.

The equal pay provisions of the ESA extend beyond gender discrimination to employment status. Since April 1, 2018, employers must not only pay males and females equally, but part time, temporary and seasonal workers must be paid the same as full time workers so long as they are performing substantially the same job.

There are exceptions, however. differences in pay are permitted so long as they are the result of:

  1. a seniority system – a system that pays employee based on length of service;
  2. a merit system – a system that pays employees based on merit: their skills, education, competence, etcetera;
  3. a system that measures earnings by quantity or quality of production – a piecemeal system or similar; or
  4. any other factor other than sex or employment status.

I wrote about the new Equal Pay provisions in the ESA as the changes were taking effect at the beginning of April. Read more details about this section in my post Equal Pay for Part Time Work begins April 1, 2018

Employers should be careful to ensure that any system they are using to determine employee pay is being implemented fairly and communicated to employees in advance. Any measurements of quantity or quality should to the greatest extent possible be objective and recorded.

Further, the ESA considers hourly/salary pay, along with overtime and commission. It does not however, specifically discuss whether it includes benefits, stock options or bonuses. Nevertheless, it may be prudent to consider how these extras are distributed to employees and ensure they are done so fairly.

Bill 203, the Pay Transparency Act, 2018.

On April 26, 2018, the Ontario legislature passed the Pay Transparency Act, 2018. This Act continues the Ontario governments trend towards pay equalization by establishing requirements for employers on disclosing compensation information of employees and prospective employees. Ontario is the first province in Canada to have legislation of this kind.

The major pillars of this legislation are as follows:

  1. Employers will be prohibited from asking for or seeking out information on what a prospective employee was or is being paid;
  2. Employers will be required to include expected compensation or range of compensation in any publicly advertised job posting; and
  3. Certain employers (likely those with a larger payroll) will be required to prepare and post publicly “pay transparency reports.” These reports are to include anonymized wage data with respect to gender and other prescribed characteristics, specifically information about the employer, the employer’s workforce composition, and differences in compensation in the employer’s workforce.

These transparency measures come into force and effect on January 1, 2019. The same day as the $15 minimum wage. Employers with more than 250 employees will have to submit their first pay transparency report by no later than May 15, 2020. Employers with between 100 and 249 employees will have submit their first pay transparency report by no later than May 15, 2021.

The Human Resources Take Away

Employers of all sizes need to consider whether they are maintaining pay equity and equal pay in accordance with the Pay Equity Act and the ESA. With the recent increase to minimum wage and the new April 2018 equal pay requirements, now is the right time to review employee wages across the board and ensure there is no unintended breaches of these Acts.

There is also a need to prepare for the Pay Transparency Act. Even if it may not immediately apply to smaller employers, it may be a good corporate practice to implement.

Leslie Dizgun, the co-author of this article conducts a sophisticated commercial litigation and employment law practice at the law firm of Brauti Thorning Zibarass LLP. For further information on this topic, Leslie’s contact information can be found online at BTZLaw.ca

This post has been republished by HR Insider. If you’re a subscriber to HR Insider you can see the article there at: https://hrinsider.ca/equal-pay-in-the-ontario-workplace/ 


 

Contact Justin W. Anisman

Contact Justin W. Anisman, the author of this blog, about any employment law related questions or issues you may be facing. Call 416-304-7005 or email him at janisman@btzlaw.ca.

Justin W. Anisman is an Employment Lawyer at the Toronto law firm Brauti Thorning Zibarras LLP. Justin advises both companies and individuals in all aspects of employment law including wrongful dismissal, human rights and discrimination.


The publications made on this website are provided and intended for general introductory information purposes only. They do not constitute legal or other professional advice, or an opinion of any kind. Speak to a professional before making decisions about your own particular circumstances.