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Employment - Subjects Table of Contents (D-F)
DEPENDENT CONTRACTOR
'Dependent contractor' is an intermediate legal status between employees and independent contractors (ie. proprietors). It has few to no legal rights due to that status - except a right of reasonable notice of termination due, to their economic dependency on the payor.
Employment Cases - Dependent Contractor
DIGITAL PLATFORM WORKERS
Digital Platform Workers' Rights Act, 2022
Digital Platform Workers’ Rights Act, 2022 [in force 01 July 2025] (allocated, not split)
OLRB Website Materials
. Information Bulletin #38 Applications for Review under the Digital Platform Workers’ Rights Act, 2022
. Form A-153 Application for Review (Digital Platform Workers’ Rights Act, 2022)
. Rule 21: Applications under the Employment Standards Act, Employment Protection for Foreign Nationals Act, 2009 and Digital Platform Workers’ Rights Act, 2022
DIRECTOR OF EMPLOYMENT STANDARDS
ESA s.85(1-3) Director of Employment Standards
ESA s.88(1,4) Powers and Duties of Director
ESA s.88(2) Director May Make Policy (1/2)
ESA s.88(3) Director May Authorize Employment Standards Officers (ESOs) (1/2)
ESA s.88(9) No Hearing Required for Director Decision
ESA s.1(1) Definitions [“Director”]
DIRECTOR (CORPORATE) LIABILITY FOR WAGES
The main business corporation statutes, both Ontario [at s.131] and federal [at s.119], have provisions that make corporate directors personally liable for six month's unpaid wages of the corporation's employees. As well, the OBCA [at s.108(5)] and the CBCA [at s.146(5)] have unanimous shareholder agreement (USA) provisions which - if implemented - can relieve directors from liability under the USA, including from these 'employee wage' liabilities.
Director's Liability for Wages
ESA s.79 Definition (Director Liability) ["director"]
ESA s.80(1-4) More Exceptions to Director Liability Rules
ESA s.81(1-10) Corporate Directors Jointly and Severally Liable for Wages; Exceptions
ESA s.83 Civil Remedy Against Director Not Affected by this Part (1/2)
OBCA s.131 Directors’ liability to employees for wages
CBCA s.119 Liability of directors for wages
Employment Cases - OBCA Director's Liability for Unpaid Wages
No Waiver and Indemnification from Director Liability for Wages
These are 'no-contracting out' provisions, meant to prevent corporations from protecting corporate directors from ESA employee protections.
ESA s.82(1-2) No Waiving of Director from Liability for Wages; Director Indemnification Allowed
ESA s.83 Civil Remedy Against Director Not Affected by this Part (2/2)
DUTY OF GOOD FAITH
The 'duty of good faith' is an over-arching term for a growing collection of relatively new contractual duties (such as the 'duty of honesty') [see Contracts - Duty of Good Faith]. It can apply to employment contracts as well.
Employment Cases - Duty of Good Faith
ELECTIONS (ESA) BY EMPLOYEE-EMPLOYER
As is explained in the very useful Ontario government ESA publication: Employment Standards Act Policy and Interpretation Manual [here regarding ESA s.1(3-4) 'Agreements in writing'], employers and employees may 'elect' some variability (in a number of areas) regarding what are otherwise firm ESA standards.
For example, under ESA s.17(2) they may agree that the employee "will work up to a specified number of hours in a day in excess of the limit". Section 1(3) ['Agreements in writing'] requires that such agreements shall be in writing.
ESA s.1(3) Agreements in writing
ESA s.1(1) Definitions ["employment contract"]
ELECTRONIC MONITORING
ESA s.41.1.1(1-8) Electronic Monitoring (Written Policy and ESA Complaints)
ELECTRONIC WORK CONNECTION
ESA s.21.1.2(1-4) Policy Regarding Disconnecting From Electronic Work Connection
ESA s.21.1.1 Definition [“Disconnecting from work”]
EMPLOYEE
Defining Employees
ESA s.1(1) Definition [“employee”]
ESA s.1(2.1) Definition re Training (Training includes trial periods)
Reg 285/01 Exemptions, Special Rules and Establishment of Minimum Wage, s.1.1 When Work Deemed to be Performed
Other
ESA s.5.1(1) No treating as if not employee (General Offence by Employer)
ESA s.7 Employee's Agent
EMPLOYER
ESA s.1(1) Definition ["employer"]
ESA s.1(1) Definition ["establishment"]
EMPLOYER ASSOCIATIONS
Employment Cases - Employer Associations
EMPLOYMENT STANDARDS
ESA s.1(1) Definitions ["employment standard"]
EMPLOYMENT STANDARD OFFICERS (ESOs)
Employment Standards Officers (ESOs) are first-line ESA officials, having initial 'carriage' of complaints.
ESA s.86(1-2) ESO Appointments
ESA s.88(3) Director May Authorize ESOs re Director Powers (2/2)
ESA s.89(1-2) ESO Powers and Duties
ESA s.89(3) No Hearing Required for ESO Decision
EQUAL PAY FOR EQUAL WORK
ESA s.41.2-42(1-5) Equal Pay for Equal Work
EVIDENCE (ESA)
Below are some evidence provisions regarding ESA proceedings. Evidence law is treated more fully at Administrative Law - Evidence and Evidence.
ESA s.90(1-2) ESO Evidence in Civil Litigation
ESA s.91(10) ESO-Certified Copies in Evidence (2/2)
ESA s.140(1-5) Official Document Evidence
FOREIGN NATIONAL
There is separate legislation [the Employment Protection for Foreign Nationals Act, 2009 (EPFNA)] regarding 'foreign nationals' as employees. This law is addressed thoroughly by the Ontario government in the EPFNA, 2009 Policy and Interpretation Manual, located in the larger Employment Standards Act Policy and Interpretation Manual. I have not yet integrated the EPFNA into this website.
ESA s.1(1) Definition ["foreign national"]
Employment Protection for Foreign Nationals Act, 2009
FORUM, CHOICE OF (ONTARIO)
COMMENT
Ontario employment law can allow an aggrieved party (almost always an 'employee') a choice between remedial forums, that is between (a) the Court system (Small Claims Court up to $50,000; Superior Courts for more), and (b) the administrative Employment Standards Officer (ESO) regime [with subsequent OLRB tribunal 'appeals' (properly referred to as 's.116 reviews').
While in uncommon situations (see 'Choosing Both', below), disputes within one employment relationship can be 'split' over both different forums (ie. court and administrative) in separate proceedings - if they warrant meritorious claims in both areas.
However this is unusual. In the vast majority of cases, the prospective employee-litigant need only focus on the main practical and tactical advantages in deciding 'either/or' between the two forums. Key factors are: (a) a consideration of the estimate of total monetary recovery in light of the potentially several claims that they have (primarily termination pay-in-lieu and benefits, but there can be others), and (b) the time limitations that govern your situation.
On the first of these factors (monetary recovery), in the typical 'wrongful dismissal' context the law will almost always favour the court forum with it's more generous common law entitlements. If in doubt (and even without this wrongful dismissal pay-in-lieu advantage), as a general rule aggrieved terminated employees are usually better served by pursuing their rights in the courts, with it's one-stop procedure and more generous and clear-cut two-year limitation period. This is in contrast to the procedurally-atomized ESO complaint procedures, and it's several confusing (not to mention shorter and over-lapping) ESO complaint limitation periods. The best single argument for preferring the ESO complaint administrative system over the courts is that of 'ease of effort', but - IMHO - the employee can risk much in the hope of reduced stress and effort.
Forum Jurisdictions
Employment - Forum - Court Jurisdiction
ESA s.8(1) Civil proceedings unaffected
Procedures
Notice to ESA Director Where Employee Sues in Court
ESA s.8(2-5) Notice to ESA Director When Employee Suing
Exception Where Lawsuit May Be Commenced
ESA s.97(4) Exception Allowing Suing Where Complaint Withdrawn in Two Weeks
'Choosing Both'
The separate 'choices' between court and the ESA administrative regime are set out below in the complementary s.97(1)/98(1) (unpaid wages and benefit plans) and 97(2)/98(2) (termination entitlements) provisions. The procedural division in these 'rights' categories seems to be related to the practical reality that employment disputes can be categorized in two - the first where the employment relationship continues (ie. unpaid wages and benefit plans) and the second where the relationship is, for whatever reason, terminated.
So, an example of where the employee may want to 'choose both' is where the employer is behind in wage payment, the employee complains, and then employer consequently terminates. In that scenario, a lawsuit for the termination entitlements and then a separate ESO complaint regarding unpaid wages is possible.
As explained above though, usually the employee-litigant will not need to decide to 'split' their case across the two forums, but rather to decide 'either/or forum' for all their claims. In the above example (termination after unpaid wage complaint), the employee may advance all their rights in either forum, though of course if they proceed in the ESO system they must sacrifice their (usually richer) common law termination rights. However the corollary sacrifice does not occur - since if they do proceed in the court, they can still claim the ESA termination and severance entitlements, perhaps as an expressly pleaded 'alternative' (back-up) claim.
Unpaid Wages and Benefits
ESA s.97(1) ESA Complaint re Unpaid Wages and/or ESA Benefit Rights Bars Civil Proceeding
ESA s.98(1) Civil Proceeding Bars Complaint Regarding Wage or Benefit Claims
Termination Entitlements
ESA s.97(2) ESA Complaint re Termination and Severance Pay Bars Civil Proceeding
ESA s.98(2) Civil Proceeding for Wrongful Dismissal Bars Complaint Regarding Termination or Severance Pay
FRUSTRATION
'Frustration' is a contractual doctrine addressing when the performance of the contract is defeated by external events - such as natural disasters like fire or hurricanes, or disease (like COVID, in some circumstances). See Contracts - Frustration. In this context 'frustration' normally arises to justify the employer terminating the employment, and - collaterally - in employment insurance claims.
Employment Cases - Frustration
ESA s.56(1)(a) What constitutes termination (encompasses frustration)
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