Barrister and Solicitor
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7. Employer Self-Audits
As of 20 May 2015 an employment standards officer (ESO) can, by written Notice, require employers to engage in 'self-audits' of their employment records and practices and report truthfully [ESA 91.1(11) - was that really necessary?] back the results thereof [ESA 91.1(1,2)].
Such a Notice shall specify [ESA 91.1(3)]:
and it may specify [ESA 91.1(4)]:
- the time period to be examined;
- the provisions of the ESA and/or regulations to be addressed;
- the due date for the report.
and it may require in the report [ESA 91.1(5-8)]:
- the method of conducting the audit;
- the format of the report, and
- such additional information as the ESO considers appropriate.
Where wages are found owing as a result of the employer's self-audit report, and are confirmed by an ESO, then the ESO may issue a Wage Compensation Order [see Ch.7, s.4(c)] or an Injunction Order [see Ch.7, s.4(d)] to that effect.
- "an assessment of whether the employer has complied with this Act or the regulations";
- if the above assessment shows non-compliance, then "an assessment of whether one or more employees are owed wages", and;
- if wages are found owing, a requirement that the employer pay any such wages found owing and that the employer specify in the report: the name, amount of wages owing, an explanation of how the amount owing was determined, and if necessary, proof of payment of such wages,
- if wages are not found owing, "a description of the measures that the employer has taken or will take to ensure that this Act or the regulations will be complied with."
Use of the self-audit procedures - and in particular an employer's report indicating (positive) ESA compliance - does not preclude an ESO from the normal administrative enforcement measures set out in this chapter [ESA 91.1(9,10)].
8. Service of Documents
"Service" refers to the legal formalities of bringing documents to the attention of parties. The term "filing" generally refers to service of documents on governmental authorities. Service issues under the ESA arise primarily in relation to the triggering of Review or appeal time limits, which typically "start to count" when a decision (eg. an Order or a refusal to issue an Order) is legally held to have been brought to the attention of the parties concerned.
This section addresses service rules that apply to all ESA administrative service situations except the following (for which see the referred-to sections elsewhere in this Legal Guide) [ESA s.95(1)]:
(b) Service Methods
- OLRB procedures (see Ch.8, s.5)
- applications to the ESA Director for hours-of-work extension agreements [see Ch.4, s.3]
- applications to the ESA Director for overtime averaging agreements [see Ch.4, s.2(c)]
- notices of civil proceedings [see Ch.2, s.2(c)]
Service of a document really means service of a copy of a document, not the original.
Keep in mind that the below rules are permissive, and not mandatory. Service a document in accordance by any of the below-listed methods is acceptable service, but it does not rule out a determination by the OLRB that other forms of service are also adequate [see "Substituted Service" below]. That said, it is best to abide by these rules whenever possible:
However other methods might also achieve the same goal. This determination can be made by the OLRB, when it is requested by the ESA Director to consider the issue [ESA 95(1)(g),(7-9)]. These rules appear to have been put in place to allow for pre-approval of other service methods (this is called 'substituted' service) but on a generous reading they may also be interpreted to 'post-approve' earlier irregular service methods (this is called 'validating service'). If the OLRB makes such an order, it shall also set out when such service is effective.
- Personal Service
Personal service on a person is achieved by simply leaving a copy of the document with them. Personal service on a corporation is achieved "by leaving a copy of the document with an officer, director or agent of the corporation, or with an individual at any place of business of the corporation who appears to be in control or management of the place of business" [ESA 95(1)(a,b),(2)]. Such service is effective immediately.
- Alternative to Personal Service
What is generally known as 'alternative to personal service' may be achieved "by leaving the document, in a sealed envelope addressed to the person, with an individual who appears to be at least 16 years of age at the person’s last known business or residential address" [ESA 95(1)(f),(2)]. The reference to "person" here includes a corporation [Legislation Act, s.87]. Such service is effective immediately.
- Mail Service
Mail service is achieved by using any mail method that allows delivery to be verified, sent either to the person's last known business or residential address. The reference to "person" here includes a corporation [Legislation Act, s.87]. Such service is effective five days after mailing [ESA 95(1)(c),(3)]. However, such service is not effective if the intended recipient later "establishes that the service was not effective at the time specified .... because of an absence, accident, illness or cause beyond the person’s control" [ESA 95(6)].
- Fax or Email
Fax or email service is allowed if the recipient is equipped to receive the same [ESA 95(1)(d),(4)]. If sent on a Saturday, Sunday, holiday or any day after 5pm, such service is effective the next regular day. However, such service is not effective if the intended recipient later "establishes that the service was not effective at the time specified .... because of an absence, accident, illness or cause beyond the person’s control" [ESA 95(6)].
Courier service is adequate service [ESA 95(1)(e),(6)]. Such service is effective two days after the document is given to the courier. However, such service is not effective if the intended recipient later "establishes that the service was not effective at the time specified .... because of an absence, accident, illness or cause beyond the person’s control" [ESA 95(6)].
- Substituted Service
It is important to note that the service methods listed above are permissive, not mandatory - so if used they will be presumed to have adequately delivered the subject document to the attention of the recipient.
(c) Proving Service
When necessary (such as for a hearing), service of a document is proved by means of certificates completed by the party or ESO officer performing the service [ESA 95(10-11)].
9. Employers and Employees Act
The "Employers and Employees Act" is separate (ie. non-ESA) Ontario legislation that entitles employees to bring wage claims of up to $500 before justices of the peace for enforcement.
However, the provisions are effectively obsolete in face of the ESA provisions and the small dollar limit imposed.
Employers and Employees Act