Monday, 18 May 2015

There is More to Employment Law in Ontario than Just the Employment Standards Act

There is more to employment law in Ontario than just the Employment Standards Act, 2000. While this point should be obvious, a recent article in the Toronto Star, Ontario allowing employers to fire workers without cause begs for this point of clarification.

I will be the first to concede that Ontario’s employment laws are complicated, confusing, and cumbersome. First, there are a number of statutory laws that govern any number of daily activities, which partially illustrates the point. But second, overlaid on top of the statutory law is the judge-made law, often referred to as “the common law” or “precedent.” Ignoring these two facts leaves both employees and employers with an incomplete picture of how ‘the law’ actually works.

The Statutory Law

A statute, according to the Merriam-Webster dictionary, is “a law enacted by the legislative branch of a government.” The Employment Standards Act, 2000 (Ontario), is a statute. Rules created by such laws are called “statutory” because they come from a statute. For example, in Ontario “Family Day” is a ‘statutory holiday’ because the Employment Standards Act, 2000 says so.

But, in the same way that speeding is both ‘illegal’ and not contrary to the provisions of the Criminal Code of Canada (in Ontario speeding is a violation of the provincial Highway Traffic Act), more than one statute governs the relationship between employees and employers in Ontario.

Speeding and the Criminal Code also highlights a second point about the statutory law of Canada: statutes in Canada come from different levels of government. The Criminal Code of Canada is a law, a statute, which was passed by the Federal parliament. The Highway Traffic Act is also a statute, however it was passed by the Provincial government. As is explained in substantially more detail on our page Which Laws Apply?, given the constitutional division of powers not all employees who work in Ontario are protected by the provisions of the Employment Standards Act, 2000; some employees work in federally regulated industries, to which the Employment Standards Act, 2000 does not apply at all. Again, for those perplexed by this statement of law, have a look at the page Which Laws Apply?.

Presuming for a moment that the employer is provincially regulated, there is a second point to be made from the speeding example: more than one statute exists in Ontario. While the Employment Standards Act, 2000 certainly does establish minimum standards with respect to employment in Ontario, it is not the only statute to do so. For example, the Occupational Health and Safety Act establishes rules governing health and safety in Ontario’s workplaces. The Human Rights Code establishes rules prohibiting discrimination on the basis of a number of protected grounds and protects employees dismissed for a prohibited reason, including because the worker became pregnant or was injured on the job and claimed benefits from the Workplace Safety and Insurance Board. And, of course, there are more laws governing a whole host of aspects of employment law in Ontario. To look only at the Employment Standards Act, 2000 is to fail to appreciate the totality of the situation.

The Common Law

While it is unquestionably important for employers and employees to appreciate that more than one statute may be applicable to their situation, it is equally important for both sides to also recognize the existence of the common law.

The source of the common law, as compared to statutory law, is the courts. This body of law is ever changing, but there are certain concepts of which both employers and employees must be aware. The most important common law concept about which employers and employees must be aware is that of wrongful dismissal. More on that in a second, and in context.

What Was Said in The Toronto Star

Here is how the article in the Toronto Star, cited above, starts:

Show up to work one day and get fired for no reason?

Sorry about your luck.

In Ontario, not a single worker is protected from wrongful dismissal under the Employment Standards Act.

Hit with the flu and can’t make it into the office?

Consider sucking it up, because chances are you won’t get paid. You’ll be lucky to keep your job, in fact.

Have to put in extra hours one week to get the job done?

Whatever you do, don’t expect overtime pay. Or even to get paid at all.

Ontario’s outdated employment laws, currently under review, were designed to create basic protections for the majority of the province’s non-unionized workers.

Instead, millions are falling through the gaps created by a dizzying array of loopholes, from the dangerous to the downright bizarre.

These three points (employees can be fired for no reason, employees can be fired for getting sick, and no one is entitled to overtime pay) are proffered by the author as examples of the ways in which the Employment Standards Act, 2000, presently under review by the provincial government, is broken. However, by focusing exclusively on that one piece of legislation, that single statutory law, the author leaves readers with the dangerous impression that employees have no rights and employers can act with impunity. Neither is wholly true.

Can the system be improved upon? Certainly. I have personally argued that a number of workplace issues need to be addressed by either the government or the courts; but the same does not mean that there is currently a paucity of law altogether.

The ESA and “Wrongful Dismissal”

Of the three points raised by the author in the Toronto Star article, this post will only address the issue of terminations without cause. Needless to say I have concerns with everything that is said in the article, but I do not want a post of unmanageable length.

As is explained on the page What is Wrongful Dismissal?:

Firing an employee without any ‘good reason’ is not “wrongful dismissal” under Ontario employment law. Employers are generally permitted to fire employees at any time during the employment relationship, subject only to the requirement to provide “reasonable notice.” An employee can be the absolute best employee ever and the employer can still legally let the person go. It may not be a wise business decision to let a top performer go, but it's legal.

“Wrongful dismissal”, as known to Ontario law, is the failure to provide sufficient notice of termination. Arguably, the Employment Standards Act does not protect employees against “wrongful dismissal” because wrongful dismissal is a common law concept, not a statutory one. So the author is correct, “In Ontario, not a single worker is protected from wrongful dismissal under the Employment Standards Act.” But, just because the Employment Standards Act does not prevent against wrongful dismissal, that does not mean that workers have no rights. More importantly, the law does prescribe certain terminations as illegal, meaning that if the employer fires the employee for a prohibited reason, e.g. because the worker becomes pregnant and asks for maternity leave, the employer can apply for reinstatement and the Ontario Ministry of Labour has the power to order the employer to take the employee back.

What is more, the Employment Standards Act is not the only statute that governs the workplace. Employees terminated in contravention of the Human Rights Code may apply to the Human Rights Tribunal of Ontario for a number of remedies, including reinstatement with back pay. As is canvassed more fully in the post Appeals Court Upholds Employee’s Reinstatement 9 Years After Termination, in the case of Fair v. Hamilton-Wentworth District School Board, 2013 HRTO 440, upheld by the Divisional Court for reasons reported at 2014 ONSC 2411, an employee dismissed for having a disability was ordered to be reinstated to her former job and to be paid nine years of back pay by the Human Rights Tribunal. The ESA may not have protected Ms. Fair, but another law did.

Second, and far more common, is the belief that an employee’s rights to notice of termination and severance are governed exclusively by the Employment Standards Act. That belief is simply wrong.

Although beyond the scope of this one post, as is explained on our page What is Wrongful Dismissal?, both employers and employees would be prudent to note that typically one’s entitlement to severance goes well beyond what is provided for in the ESA.

Perhaps the best illustration I can provide of the fact that an employee’s entitlements on termination go beyond what is in the Employment Standards Act is the case of Wellman v. The Herjavec Group Inc., 2014 ONSC 2039 (CanLII). In that case an employee who was employed for just 51 weeks (less than one year) was awarded four months of pay in lieu of notice by the Ontario Superior Court of Justice. Had Mr. Wellman only considered the Employment Standards Act, he would have only been entitled to one week of pay in lieu of notice. For more on the Wellman case and how the court arrived at a figure of four months see the post ONSC Awards Four Months Notice to Employee With Less Than One Year of Service.

By focusing solely on the Employment Standards Act, as the author in the Star does, employers and employees overlook a very important aspect of Ontario employment law. For employers, it is dangerous to believe that most employees may be dismissed upon the provision of only the minimum amount of notice prescribed by that statute. Doing so may lead to a costly wrongful dismissal case. For employees, it can be substantially costly to believe that one is entitled to no more than what is prescribed by the ESA. In both cases it would be highly prudent to speak with an experienced employment lawyer before forming any opinions about one’s situation.

Contact Me

Regardless of whether you are an employer or an employee, the employment lawyers at Ottawa’s Kelly Santini LLP would be happy to provide you with experienced, professional legal advice with respect to your employment law questions. (Subject to our hourly rates and other professional obligations, of course.)

To reach the author of this blog, Sean Bawden, email or call 613.238.6321 x260.

To subscribe to Labour Pains enter your email address:

Delivered by FeedBurner


As always, everyone’s situation is different. The above is not intended to be legal advice for any particular situation. It is always prudent to seek professional legal advice before making any decisions with respect to your own case.

Sean Bawden, publisher of Labour Pains, can be reached by email at or by phone at 613.238.6321.

Sean P. Bawden is an Ottawa, Ontario employment lawyer and wrongful dismissal lawyer practicing with Kelly Santini LLP. He is also a part-time professor at Algonquin College teaching Trial Advocacy for Paralegals and Small Claims Court Practice.

No comments:

Post a Comment