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Employment Standards Overhaul in Ontario - Will it be a Toothless Tiger?

· Employment Law

The Ontario Government recently announced changes based on an extensive overhaul of the Employment Standards Act of Ontario. It has been touted in the media as potentially one of the largest overhauls of employment and labour law in Ontario, rivalling those of the Mike Harris government. Leading voices on the side of labour and management have weighed in with their positions despite the very limited information which has been made available to the public. The areas of review which have been mentioned relate to mandating paid sick days for employees, increasing the minimum wage and increasing the minimum entitlement to paid vacation from two to three weeks.

Typically, those representing employers’ interests are warning about the dire consequences and drastic choices which will have to be made so that businesses will be able to survive should new laws and regulations be too onerous. This happens each time a government indicates an intention to increase the minimum wage or that it will enhance certain leave benefits. Those who represent employees counter these arguments by suggesting that increased compensation provides increased spending power which assists the economy and that, historically, these changes haven’t caused the drastic economic downtown which had been predicted.

Regardless of the merits of these arguments there is a larger issue which, I believe, should be considered:

  • Any statutory right is only as strong and effective as is the ability to exercise and enforce it. The current Employment Standards Act, for instance, states that overtime must be paid to an employee who works in excess of 44 hours in a week. That is a right to which the employee is entitled. However, if that doesn’t happen the employee must initiate a complaint with the Ontario Labour Relations Board (OLRB) which then appoints an officer to investigate. The appointed official has significant investigative powers under the Act. If the investigation has merit the official can issue an order to pay. However, as has been shown by an independent investigation undertaken by the Toronto Star, a large proportion of these orders have remained unpaid for extended periods of time.
  • The timeliness of the investigation depends upon the availability of an investigator. Its thoroughness also depends upon manpower and volume of complaints. Sadly, enforcement of orders suffers from the same considerations. During this period the employee can be significantly out of pocket. For many workers, particularly those in precarious jobs, this can have a devastating effect. Unfortunately, as currently written, the Employment Standards Act, except in one limited circumstance, does not allow an employee who has initiated a claim with the OLRB to sue in civil court. An employee must first withdraw its claim within two weeks of its having been filed. If outside of this two-week period the employer can have the civil proceeding stayed. Further, unless the lawyer or paralegal is prepared to work on a contingency basis, the costs could be prohibitive. If the employee has begun its action in civil court she or he is precluded from pursuing any recourse with the OLRB.
  • In addition to changes to the substance of the law, the government should amend the Employment Standards Act to allow an employee to engage the services of a legal professional as well as seeking redress with the OLRB. The parties can decide between themselves which procedure to suspend until the other is completed. This would allow an employee to choose to make use of the OLRB to investigate the complaint and issue an order but still provide recourse to the courts if that order remains unpaid. At that point a legal professional would be more inclined to accept a contingency retainer as the likelihood of recovery is greater than at the outset. This would also give the employee greater control over the process which is sadly lacking as things currently stand.

The past has shown that relying on the government bureaucracy doesn’t provide sufficient protection. Even with additional inspectors little is likely to change. Unless the amendments allow employees to independently assert their legislative rights, the Employment Standards Act will remain a toothless tiger.

Disclaimer

The materials provided on this site are for information purposes only. These materials constitute general information relating to areas of employment law familiar to employment lawyer, Shelley Brian Brown. They do NOT constitute legal advice or other professional advice and you may not rely on the contents of this website or blog as such.

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