Barrister and Solicitor
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8. Pre-Hearing Procedures
This section addresses a varied range of proceedings and issues that may arise before an OLRB hearing commences.
(b) Order Payout Delayed When Appeal
While the commencement of an employer's Review application requires payment (to the ES Director) of the amount of the ESO Order (or posting of security for the Order) [see s.2(c), above], such monies received by the ES Director will be held by the Director (ie. not distributed to the employees) until either [ESA 109(1)]:
Monies so held as a result of an employer's Review application are held in an interest-bearing account [ESA 117(1,2)], to be credited as per the settlement or Review order that resolves the Review [see s.11(c): "Post-Hearing Payment of Funds Held in Trust: Accrued Interest Paid Out"].
- the standard time for filing a Review has expired, or
- if a Review has been filed within that time, the Review has been completed.
. Party-Party Settlements
The employee and employer parties to a Review may engage in a party-party settlement of the matter which is subject of a Review in the same fashion that they might settle the matter before a ESO Order is made [ESA s.112]. Procedures for this are explained in Ch.7, s.4(f): "Administrative Enforcement: Orders and Related Measures: Party-Party Settlements".
Note however that such settlements do not apply to settle Notice of Contravention proceedings [ESA s.112(3)].
. OLRB Mediated Settlements
Additionally, once an Order is being reviewed, the OLRB may attempt to achieve a settlement with the assistance of a Labour Relations Officer (LRO) [ESA 120(1); Rule 40.10]. The ESO who issued the original Order (or refusal) under Review need not be involved in such a settlement [ESA 120(2)]. Further, labour relations officers are required to keep confidential any "information and material" that they receive in the course of their ESA duties, except from the OLRB itself or with OLRB authorization [ESA 123(2)].
Note that these 'mediator' settlement provisions do not apply to Notice of Contravention Reviews [see s.13: "Notice of Contravention Reviews", below].
Such "Review" settlements generally only require the consent of the involved parties, but not the ES Director (who is also technically a "party"). The exception is Reviews of s.108 compliance Orders [ie. "Injunctions", as discussed in Ch.7, s.4(d): "ESA Administrative Enforcement: Orders and Related Measures: Injunction Orders"], which can only be settled if all the parties - including the ES Director - so consent [ESA 120(3)].
The legal effect of such a settlement, if fully complied with, is to void any Orders being reviewed and to terminate the related Review proceedings [ESA 120(4)]. However, if an employee - on application to the Board - shows that the settlement was entered into as a result of "fraud or coercion", the Board may void the settlement and reinstate any Order and proceedings in question [ESA 120(5)].
The application form and OLRB "Procedural Guide" for such applications are linked here:
Application to Void Settlement
OLRB Procedural Guide (see p.49)
If the ES Director holds monies in trust for payment towards any original Order, it shall pay it out to the parties in accordance with the settlement terms [ESA 120(6)]. In such a case however the Director is still entitled to its administrative costs, calculated in the proportion that the settlement amounts bear to the original Order amounts.
(d) OLRB Investigative Authority
Generally in a Review proceeding, the OLRB may "exercise the powers conferred on an employment standards officer under this Act", which include investigative powers [ESA 119(6,8,9)].
The investigative authority so granted is exercised directly by a "labour relations officer" (LROs), who is an employee of the Board. More specifically, LROs have the same investigative powers as ESOs [see Ch.7, s.6: "Administrative Enforcement: Employment Standards Officer Inspection and Investigative Authority"] (except the s.102 power to require parties to attend meetings)] and may "examine any records or other documents and make any inquiries it considers appropriate" [ESA 91,92, 119(8,9)].
Labour relations officers are required to keep confidential any "information and material" that they receive in the course of their ESA duties, except from the OLRB itself or with OLRB authorization [ESA 123(2)].
(e) Interim Orders
. OLRB Jurisdiction Regarding Interim Orders in ESA Matters
The OLRB Rules of Procedure [Rule 19] establishes procedures for the making of "interim Orders" (ie. Orders during uncompleted proceedings, as opposed to "final" Orders disposing of the matters before the Board).
The Rule preamble notes several provisions of the Labour Relations Act (re unions) corresponding to issues which can arise before the Board for which interim Order procedures are expressly applicable, but is silent on their application to any specific ESA procedures.
However the ESA expressly mentions one circumstance (only) where an interim-type order may be made by the Board. This is when - either on its own fact-findings or where the respondent party does not dispute - "a specified amount of wages, fees or compensation is owing." Such interim Orders may be in the form of an affirmation of all or part of an original Order, or in the form of a new Order [ESA 119(10-11)]. Basically, if only part of an ESO Order is under Review while the balance is undisputed, this provision allows the undisputed portion of the Order to stand and the monies to be paid to the employee. This circumvents the "stay" that would otherwise prevent that part of the Order from being collected [see Ch.7, s.4(c): "Finality"].
Given the specificity (above) of the ESA s.119(10-11) interim Order authority, in my opinion it is is highly doubtful that the Board's interim Order jurisdiction respecting ESA matters extends beyond these limited 'undisputed amount' circumstances. Contrast this with the broad corresponding Labour Relations Act interim Order provisions:
LRA s.98(1)While it is tempting to argue from the above analysis - assuming it is correct - that the Board has no other 'procedural' interim Order jurisdiction, this result is tantamount to stripping it of necessary day-to-day case management authority. As such the best conclusion seems to be that the Board lacks interim Order authority regarding substantive (ie. rights) matters other than as set out in ESA s.119(10-11) above, but that it still has broad procedural interim orders authority.
On application in a pending proceeding, the Board may,
(a) make interim orders concerning procedural matters on such terms as it considers appropriate;
(b) subject to subsections (2) and (3), make interim orders requiring an employer to reinstate an employee in employment on such terms as it considers appropriate; and
(c) subject to subsections (2) and (3), make interim orders respecting the terms and conditions of employment of an employee whose employment has not been terminated but whose terms and conditions of employment have been altered or who has been subject to reprisal, penalty or discipline by the employer.
. Interim Order Procedures
The Board has prescribed several forms for interim Order applications, linked here:
A-14: Application for Interim Order under SPPA or LRA
A-15: Response to Application for Interim Order
C-11: Notice to Responding Party and/or Affected Party of Application for Interim Order
The OLRB Procedural Guide (p.7) also addresses interim Order procedures.
As well, some variations in delivery requirements and duties apply in the case of interim Orders. See OLRB Rules of Procedure (Rules 6.4, 6.9, 6.11, and 6.13].
(f) Constitutional Issues
In those rare cases where constitutional issues (most frequently, under the Canadian Charter of Rights and Freedoms) are relevant to a case, the party wishing to raise them must properly - and promptly - notify the Board and other parties of this intention [Rule 4.1], using the Board-prescribed form:
OLRB Notice of Constitutional Question
The primary law dealing with this is located in the Courts of Justice Act [s.109(6)]:
s.109(1)A full discussion of substantive (rights) and procedural Charter law is beyond the scope of this Employment Law (Ontario) Guide, but parties facing such issues should consult a lawyer as soon as possible. Failure to properly provide "Notice of Constitutional Question" is grounds for disallowing such issues from consideration in the case [CJA s.109(2)]. Further:
Notice of a constitutional question shall be served on the Attorney General of Canada and the Attorney General of Ontario in the following circumstances:
1. The constitutional validity or constitutional applicability of an Act of the Parliament of Canada or the Legislature, of a regulation or by-law made under such an Act or of a rule of common law is in question.
2. A remedy is claimed under subsection 24 (1) of the Canadian Charter of Rights and Freedoms in relation to an act or omission of the Government of Canada or the Government of Ontario.
CJA s.109(2.2)On the subject of the Charter generally, readers may want to have reference to the informative Canadian Charter of Rights Decisions Digest produced by the Canadian Legal Information Institute.
The notice shall be served as soon as the circumstances requiring it become known and, in any event, at least fifteen days before the day on which the question is to be argued, unless the court [or Board: R4.2] orders otherwise.
9. Summary Procedures
Administrative procedures, like court procedures, sometime have provisions for the expedited dismissal of a case on a variety of grounds, such as it being "frivolous and vexatious", an "abuse of process", or more commonly by way of "non-suit". A "non-suit" is terminology drawn from civil litigation that refers to the situation where the allegations made - even if assumed to be true - do not support allowing the applicant to succeed in their case.
While the ESA itself contains no such provisions, it does defer to the rule-making authority of the OLRB, and the Board has its own broad rule in this regard:
Rule 39.1In light of the discussion of the Board's limited ESA "interim Order" jurisdiction [s.8(e), above], and the absence of any procedures for the making of "motions", it would appear that the ways in which this authority might be brought to bear are limited. The issue could be raised by the Board on its own initiative - or alternatively by a party at a hearing. Practically however there is nothing to stop a party from raising the issue by way of letter to the Board [in which case be careful to properly serve and file it as per s.5 ["Service and Filing of Other Documentary Materials"], above.
Where the Board considers that an application does not make out a case for the orders or remedies requested, even if all of the facts stated in the application are assumed to be true, the Board may dismiss the application without a hearing or consultation. In its decision, the Board will set out its reasons.
(b) Summary Resolution of Jurisdictional Issues
There is however one express 'summary' type of procedure anticipated in the ESA. This is regarding jurisdictional issues (which decide whether the subject matter of the case is properly before the OLRB):
ESA 118(2)This authority has been expressly taken up by the Board in its Rule 41, which also has application to a range of labour relations (union) situations. Care must be taken when considering the topic of "jurisdiction" in the OLRB context not to confuse inter-union jurisdictional disputes (eg. which union has 'jurisdiction' over any given type of work being assigned by the employer), with other non-union jurisdictional issues.
The chair of the Board may make rules to expedite decisions about the Board's jurisdiction, and those rules,
(a) may provide that the Board is not required to hold a hearing; and
(b) despite subsection 116 (8), may limit the extent to which the Board is required to give full opportunity to the parties to present their evidence and to make their submissions.
In any event, the Board's procedures for "expedited" jurisdictional proceedings in this one limited ESA "jurisdictional" situation give it a large range of ill-defined authority, as follows:
In order to expedite proceedings, the Board or Registrar may, on such terms as either considers advisable,
- consult with the parties,
- conduct a pre-hearing conference,
- issue any practice direction,
- shorten or lengthen any time period,
- change any filing or service requirement,
- schedule a hearing, if any, on short notice, or cancel such hearing, OR
- make or cause to be made such examination of records or other inquiries as either considers necessary in the circumstances.
Where the Board is satisfied that a case can be decided on the basis of the material before it, and having regard to the need for expedition in labour relations matters, the Board may decide an application by limiting the parties' opportunities to present their evidence or to make their submissions, or without a hearing.
10. Hearing Procedures
Subject to any abbreviation of proceedings by summary methods [s.9, above] applicants and parties to a Review application are entitled to a "full opportunity to present their evidence and make their submissions" [ESA s.116(6,8)].
Hearings may be presided over by as few as one OLRB members as long as they (or at least one of them) is either the Chair or a Vice-Chair of the Board. The OLRB also has "members", appointed in equal numbers from management and labour (union) backgrounds [ESA 119(3)], though such panels sit primarily in labour relations (ie. union) cases.
While the Statutory Powers Procedures Act (SPPA) does not formally apply to OLRB hearings, useful general information on administrative hearing procedures and practice is located in the Isthatlegal.ca Administrative Law (Ontario)(SPPA): Ch.4: Hearings
Under the common law, any 'person' who has a 'legal interest' (by far the most common of which is a financial interest) in the subject matter of the case is entitled to be a 'party' the proceeding and - of course - its hearing. Conventionally, "parties" have the full right to adduce evidence, cross-examine other parties, and make legal submissions (argument) before the tribunal.
For present purposes, 'person' includes a corporate employer, and as well a union [ESA s.1(1) defns].
Typical parties to an ESA Review hearing include any employee/s, employer/s, any directors of employer corporations who were themselves subject of an ESO Order - and as well the Director of Employment Standards [ESA s.116(7)].
Where a director of a corporate employer is the Review applicant, all other directors of the corporate employer who were served with the original Order are also parties to the proceeding.
In addition, the Board's Rules of Practice state broadly that:
Rule 1.5The Board also has a general authority to add parties:
In these Rules
(k) "party" includes a person named in an application, a person asking to participate in a case, or a person added as a party by the Board, but does not include a person who the Board has decided is not a party;
(l) "person" includes a partnership, company, employer, employers' organization, trade union and council of trade unions;
Rule 40.8 (c) Joinder and Representative Parties
The Board may direct that any person be added or removed as a party or be sent any document, as the Board considers advisable.
Where the Board has several cases before it involving the same parties and/or issues, it may be inclined to "join" or consolidate them together into one hearing procedure: Rule 40.9.
Very similar in effect is the Board's authority to order that a group of persons with "the same interest or substantially the same interest" be represented by one or more 'representative parties' [ESA 119(2)]. Typically this authority would be used where there are a large number of employees effected by a legal issue in the same way.
Evidence rules governing administrative tribunal proceedings such as the OLRB's are largely the same as (though generally more relaxed than) the rules used in Ontario civil courts. This Isthatlegal.ca chapter: Administrative Law (Ontario)(SPPA): Ch.6: Evidence provides an overview of general evidence rules and principles used before administrative tribunals.
Additional evidence provisions that are specific to ESA-related proceedings are explained below.
. ESA-Related Documentation
In any ESA proceedings, copies of signed ESA Orders or notices of contravention are acceptable proof "of the order or notice and of the facts appearing in it" (ie. originals are not required) [ESA s.140(1)].
In any ESA proceedings, copies or extracts of records or other documents certified by an employment standards officer (ESO) or signed by the ES Director, as the case may be, are acceptable proof "of the record or document or the extracted part of the record or document and of the facts appearing in the record, document or extract" (ie. certified copies are acceptable) [ESA s.140(2-5)].
. Copies of Documentation Obtained From Investigations
The investigative authorities of ESOs are discussed in Ch.7, s.6: "Administrative Enforcement: Employment Standards Officer Inspection and Investigative Authority".
Copies of documentation obtained by an ESO, and certified by the ESO as being true copies, are admissible in ESA proceedings as though they were originals [ESA 91(10)]. This provision is designed to allow the owners (typically employers) of the documents continued use of the originals despite their use for ESA enforcement.
. Summons to Witness
The procedure for compelling a witness to attend a hearing, available to any party, is the "summons" (aka "subpoena"). The OLRB will supply summons forms to parties on request, though parties should be sure to properly serve them - with required attendence and travel fees - well in advance of the hearing.
See the above Isthatlegal.ca link ["Administrative Law (Ontario)(SPPA): Ch.6: Evidence"], which explains summons procedures [s.9(c)].
. OLRB Officials Not Compellable as Witnesses
"Compellable" is an evidence term used to describe the legal 'availability' of a person to be compelled by summons to witness at a legal proceeding. Under the common law, if a person is not "compellable" then a summons served on them will be ineffective in law. Not being "compellable" however does not prevent them from witnessing if they choose to.
The following OLRB officials are not compellable witnesses in ESA Review proceedings (or any civil or administrative proceedings for that matter - including court cases) "with respect to information obtained while exercising his or her powers or performing his or her duties under this Act", except where the Board itself consents [ESA s.123(1)]:
Further, labour relations officers are required to keep confidential any "information and material" that they receive in the course of their ESA duties, except from the OLRB itself or with OLRB authorization [ESA 123(2)].
- an OLRB member,
- the OLRB Registrar,
- any OLRB employee.
. General OLRB Disclosure Authority
The Board has general authority to compel a party or a witness to provide "further information, document or thing that the Board considers may be relevant to a case and to do so before or during a hearing" [Rule 40.6].
(e) Notice of Hearing
The issuance of "notice" of a hearing is such a basic aspect of natural justice that sometimes it is overlooked as an important issue. The ESA does not address the issue directly but leaves it primarily to the Board's rule-making authority and discretion, which the Board has taken up in the following Rules:
Rule 38.1Overwhelmingly the practice will be simply to mail Notices of Hearing to the parties by regular mail (but in cases of short notice, recall the five-day mail delay before mail service is effective: Rule 6.7).
Where a hearing or consultation will be held in a case, written notice will be given to all parties setting out the time, date and place of the hearing or consultation.
Additionally however, the Board has broad authorities to engage in alternative "notice" methods, particularly by requiring parties and others to post notices [see s.7(f): "Service and Filing Methods and Related Rules: Posting of
Rule 38.2 (f) Adjournments
Where the Registrar considers that it is impractical to give written notice of the hearing or consultation, the Registrar may give verbal or other notice of the hearing or consultation.
The Board or Registrar may give directions as either considers necessary to provide notice to any person.
The Board or Registrar may require any person to post notices. The Board or Registrar may also give any directions about the posting, including when the notices must be posted, where, how many and for how long.
It is a basic aspect of the functioning of any court of administrative tribunal that it have the authority to control the timing of its own processes, and the OLRB is no exception in this regard:
Rule 38.3Factors that are typically relevant to a party's request for adjournment are discussed at this link:
The Board or Registrar may adjourn a case if either considers that the adjournment is consistent with the purposes of the relevant act. The Board or Registrar may adjourn on such terms as either considers advisable.
Administrative Law (Ontario)(SPPA): Ch.4, s.8: Hearings: Adjournments.
(g) Consequences of Non-Attendence at Hearing
There is a tradition in civil court procedure to severely curtail a party's rights if they have, by inaction after proper notice, failed or refused to participate actively in the legal proceedings. Typical consequences are loss of any right to further notices and unfavourable fact-finding presumptions.
Consistent with this tendency, the Board's Rules provide that:
Rule 38.6 (h) Types of Hearings
Where any person has been notified of a hearing or consultation in the way required by these Rules and fails to attend (in the case of an oral hearing or consultation) or to participate (in the case of a written or electronic hearing), the Board may decide the application without further notice to that person and without considering any document filed by that person.
Traditionally, the vast majority of legal hearings are conducted in some version of the 'trial' model that readers will be familiar with from television: the calling of witnesses, cross-examination, legal argument, etc.
Recently the province, like many jurisdictions, has been experimenting with alternative models of hearing procedure: namely written and electronic (almost always telephone) hearings. See the following Isthatlegal.ca link:
Administrative Law (Ontario)(SPPA): Ch.4, s.3: Hearings: Types of Hearings.
critically discussed ranted about these alternative hearing forms at length in another legal context, which may be reviewed at this Isthatlegal.ca link:
ODSP Guide, Ch.12 Appeals and Other Remedies, s.2 Appeal Hearings.
The procedures discussed and analysed at that link are generated primarily from tribunal rule-making authorities established in the Statutory Powers Procedures Act (SPPA), which - as discussed [s.1(b), above] - does not apply to these OLRB ESA Review procedures. However, as the OLRB's provisions - discussed below - are very 'bare bones' in setting out procedures to be used for these alternative hearing methods, parties may be wise to review the above-linked SPPA procedures and issues when assigned a hearing type that may be inappropriate or prejudicial
to their interests.
. Written Hearings
The OLRB Rules define a "written hearing" as one "held by means of the exchange of documents, whether in written form or by electronic means". [Rule 1.5].
The Board has broad discretion to decide when a written hearing is appropriate, although at common law and in general legal practice they are considered best suited to situations where there are no evidence disputes, only legal argument:
Rule 38.4This provision allows the Board to impose a written hearing for procedural issues, such as may arise as under the "Summary Procedures" discussed in s.9 above. However even if substantive (rights) issues are involved, the parties only have a right to present objections to the manner of proceeding. Typically written hearing procedures are quite inappropriate for any case involving credibility issues and the calling of contested evidence.
The Board may conduct a written hearing in any case before it, as the Board considers advisable. Unless the only purpose of the hearing is to deal with procedural matters, the Board will not conduct a written hearing if a party satisfies the Board that there is good reason for not doing so.
. Electronic (Telephone)
The OLRB Rules define an "electronic hearing" as one "held by conference telephone or some other form of electronic technology allowing persons to hear one another" [Rule 1.5].
While telephone hearings are marginally better than written hearings when fact-findings are required, many parties (and professionals) find them alienating and awkward. As is the case however with written hearings (above), the Board has broad discretion in deciding when to schedule a matter for electronic hearing:
Rule 38.5 (i) Orders
The Board may conduct an electronic hearing in any case before it, as the Board considers advisable. Unless the only purpose of the hearing is to deal with procedural matters, the Board will not conduct an electronic hearing if a party satisfies it that holding an electronic hearing is likely to cause the party significant prejudice.
Generally in a Review proceeding, the OLRB may "exercise the powers conferred on an employment standards officer under this Act" [ESA 119(6)]. More specifically, when resolving a Review of an ESA Order or refusal, the OLRB may do any of the following [ESA 119(6,7)]:
The Board may (ie. at its discretion) also add interest to any Orders that it makes respecting wages, fees and compensation in accordance with the Board's standard interest policy [couldn't find any online] [ESA 119(12)].
- amend any Order made,
- rescind (ie. cancel) any Order made,
- affirm any Order or refusal made,
- issue its own Order and in so doing "may substitute its findings for those of the officer who issued the order or refused to issue the order."
+++ continue here, re above interest issue (find a link)
(j) OLRB Delay in Issuance of Order
If the OLRB has not issued its Order on a Review within six months after a hearing has terminated, the Chair may - on application of a party - "terminate the proceeding", subject to being re-instituted on further application of a party to the Chair on such "terms and conditions as the chair considers appropriate" [ESA 124]. This provision is unfortunately reminiscent of similar "limitation" provisions applicable to ESO Orders, where administrative delay in Order issuance can result in employee claims simply being dismissed [see for comparison Ch.7, s.3: "ESA Administrative Enforcement: Limitations"].
11. Post-Hearing Payment of Funds Held in Trust
As noted in s.2(c) ["Review Application Procedure: Employer-Initiated Review Applications"], monies held by the Director in payment of most ESA Orders are held back until the time for filing a Review expires - or if a Review is filed in that time, until it is resolved.
(b) Proportional Distribution to Employees
After a Review hearing is resolved, such money [including any amounts paid toward administrative costs] can be distributed as is appropriate to the result, but if inadequate in amount to pay all the outstanding Orders, then it will be distributed in proportion to the amount owed to each of the employees effected by those Orders [ESA 109(2)].
For example, if employee A is owed $1,000 and B $2,000, and $600 is available for payout: A will get $200 and B will get $400.
(c) Accrued Interest Paid Out
Monies held in trust as a result of a review are held in an interest-bearing account, to be paid out as per the settlement or Review order that resolves the review [ESA 117(1-4)].
Interest will be calculated as per the Director's adopted manner and rate of interest determination [ESA 88(5)] [couldn't find any online].
12. Benefit Plan Issue Referrals
While possible "benefit plan" contraventions [see Ch. 5, s.1: Benefits Plans, Leaves and Other Employee Rights: Benefit Plans] can be dealt with at first instance by an employment standards officer (ESO), the ES Director may (at their discretion) refer such issues directly to the Ontario Labour Relations Board for a hearing (ESOs):
ESA 121(1)This provision is presumably due to the potential larger monetary significance (and complexity) that such issues can involve.
If, as a result of a complaint or otherwise, the Director comes to believe that an employer, an organization of employers, an organization of employees or a person acting directly on behalf of any of them may have contravened Part XIII (Benefit Plans), the Director may refer the matter to the Board.
If a matter is referred to the Board under subsection (1), the Board shall hold a hearing and determine whether the employer, organization or person contravened Part XIII.
The above-noted reference [Ch.5, s.1(e)] also contains a relevant tactical discussion of "benefit plan" remedies which readers may find useful. See in particular the discussion of the broad OLRB compensation jurisdiction [ESA s.121(3)], which would be suitable for use where retroactive benefit entitlements are at stake (and which are otherwise are beyond the remedial jurisdiction of an Employment Standards Officer (ESO)] [see also s.12(c) below].
Generally, such hearings are exempt from the provisions of the Statutory Powers Procedures Act (SPPA) [see s.1(b): "Overview: Conflicting Procedural Rules"], but are subject to some provisions set out in the ESA (below) and the OLRB's standard Rules of Practice [ESA 121(4), 116(9), 118(1,4)].
. Applicable ESA Provisions
More specifically, the following procedural Review provisions - located in the ESA - apply to OLRB "benefit plan" hearings (with any necessary modifications) [ESA 121(4)]:
All of these topics are discussed at various locations in this chapter by topic, primarily in relation to OLRB Reviews of ESO decisions.
- parties have "full oppourtunity to present their evidence and make their submissions" [ESA 116 (8)]
- Board may designate representative parties [ESA 119(2)]
- quorum of Board is Chair or Vice-Chair alone [ESA 119(3)]
- service by way of posting notices [ESA 119(4,5)]
- Labour Relations Officer may investigate on behalf of Board [ESA 119(8,9)]
- no statutory appeal available, only judicial review [ESA 119(13,14)]
- Labour Relations Officer Mediated Settlements [ESA 120(1,4,5)]
. Board Rule #17
Additionally, the Board has passed Rule 17 regarding "Ministerial or Director References".
Rule 17 provides that upon receipt of the Director referral the Board MAY (see below) direct the applicant to file and (at the same time) serve the other parties with:
The Board may direct the respondents to file and (before or at the same time as filing) serve the other parties with its written response to the application (Rule 7.2).
- "written material" [copies of the original application and any other Board-specified documents (eg. documentary evidence): Rule 7.2];
- and, at the further discretion of the Board, also require that the applicant specify whether they want a hearing of the benefit plan issue, and if so, justifictions for that request.
There is a plain conflict between the Board's view, as stated in Rule 17, that hearings are discretionary and ESA s.121(2) (quoted above): "shall hold a hearing". This conflict cannot be dismissed by arguing that the 'request and justify' provisions ARE the hearing, as the context is plainly that the hearing shall be to determine the benefit plan issue.
In any event, procedures for such a hearing would be those discussed in the following sections of this chapter, and in the OLRB Rules of Practice:
- s.8 Pre-Hearing Procedures
- s.9 Summary Procedures (except Rule 39.1 re summary dismissal without hearing)
- s.10 Hearing Procedures
If, as a result of an OLRB "benefit plan" hearing the Board is of the view that there was a contravention, it may Order that the "employer, organization or person acting directly on behalf of an employer or organization" [ESA121(3)]:
- cease the contravention and take whatever action the Board considers necessary to that end; and
- compensate any person or persons who may have suffered loss or been disadvantaged as a result of the contravention.
13. Notice of Contravention Reviews
"Notice of Contraventions" ["Notices" or "NoCs"] are discussed in Ch.9, s.3: "Offences and Contraventions: Notices of Contravention". They may be viewed essentially as administrative "fines", distinct from the still-available but more traditional punishments (fines and jail) associated with quasi-criminal prosecutions under the ESA.
This chapter discusses and explains "Reviews" of Notices of Contravention by the Ontario Labour Relations Board (OLRB). Such "Reviews" serve not only as an appeal mechanism, but are also integrally tied to the confirmation of the contravention occurrence itself. That is, contraventions are legally deemed to have occured UNLESS a Review is applied for by the limitation period [see Ch.9, s.3(e): "Offences: Notices of Contravention: Deemed Contravention"].
(b) Limitation Period
The standard "limitation period" (deadline) by which a Review of a Notice of Contravention must be filed is 30 days after it is served on the party wishing to apply [see s.7: "Service and Filing Methods and Related Rules"], though this is subject to discretionary extension by the Board if it considers it "appropriate in the circumstances" [ESA s.122(1)].
Applications for Reviews of Notices must be filed in writing [ESA s.122(1)]. The Board-prescribed form for Review Applications is linked here (it's the same as the form used for reviewing wage and other Orders):
ESA Application for Review
A Board "Procedural Guide", posted on the OLRB's website, is also linked here for convenience. It should be reviewed by any involved in such an application:
OLRB Procedural Guide (see p.47 for ESA Review Applications)
The filing of an application for Review gives rise to an automatic hearing right before the Ontario Labour Relations Board ("Board" or "OLRB") [ESA s.122(2)].
The procedures for Reviews of Notices of Contraventions are set out both in various ESA provisions and also in the OLRB's Rules of Practice. Generally they are the same as the Review procedures for ESO Orders - discussed throughout the rest of the chapter - though there are some variations. In particular, the specific OLRB 'ESA Review' rule [Rule 21] applies to Reviews of Notices of Contravention with only minor variations.
The balance of this section sets out the distinct procedural rules that apply to Reviews of Notices of Contraventions. Although I have tried to note variations when they apply, readers should be careful to compare these more specific rules with the sometimes conflicting general provisions discussed in the rest of this chapter.
The parties (those entitled to participation in the hearing) are "the person against whom the notice was issued and the Director" [ESA s.122(3)].
. Evidentiary Onus and Burden
On a Review the evidentiary burden lies on the ES Director to prove the contravention alleged in the Notice of Contravention, the standard of proof being the normal administrative/civil one of "balance of probabilities" [ESA s.122(4)].
The collection settlement provisions that apply to regular ESO Orders also apply to collection of Notices of Contravention [ESA s.129; see Chapter 7, s.5(f): "Administrative Enforcement: Payment and Collection of Orders: Collection Settlement"] through the Review process. Of course, in the event of satisfactory compliance with such a settlement, the original fine is voided [ESA s.129(4)].
However, as Notices of Contravention are essentially a fine assessed by and payable to the province, the 'party-party' (ie. employee-employer) settlement provisions that otherwise apply to regular ES Orders [see Ch.7, s.4(f): "Administrative Enforcement: Orders and Related Measures: Party-Party Settlements"] do NOT apply to Notice of Contravention collections or Review procedures [ESA s.112(3)].
. Review Decisions
Naturally, on a Review the Board may rescind or confirm the contravention alleged in the Notice. Further, it may - on affirming it - reduce [not increase] the fine applied [fines are set at Ch.9, s.3(g): "Offences and Contraventions: Notices of Contravention: Penalties"] [ESA s.122(5)].
In cases where the Board has earlier extended the limitation period for filing a Review application (past 30 days) and then - still - confirms a fine, then it may add to the Order the amount of any additional collector's fees and disbursements that have accrued since the original Notice of Contravention was issued [ESA s.122(6)].
If the OLRB has not issued its Order on a Notice of Contravention Review within six months after a hearing has terminated, the Chair may - on application of a party - "terminate the proceeding", subject to being re-instituted on further application of a party to the Chair on such "terms and conditions as the chair considers appropriate" [ESA 124]. This provision is unfortunately reminiscent of similar "limitation" provisions applicable to ESO Orders, where administrative delay in Order issuance can result in employee claims simply being dismissed [see for comparison Ch.7, s.3: "ESA Administrative Enforcement: Limitations"].
. Applicable ESA Provisions
The following ESA Review procedural provisions also apply to Notice of Contravention Reviews, with any necessary modifications as required [ESA 122(7)]:
All of these topics are discussed by elsewhere in this chapter, primarily in relation to OLRB Reviews of ESO decisions.
- parties have "full oppourtunity to present their evidence and make their submissions" [ESA 116 (8)]
- quorum of Board is Chair or Vice-Chair alone [ESA 119(3)]
- service by way of posting notices [ESA 119(4,5)]
- no statutory appeal available, only judicial review [ESA 119(13,14)]
It appears to me that the Board's view is that no "reconsideration" procedures are available for ESA Review matters. What follows below is a discussion of this conclusion and its legal basis.
HOWEVER, anyone considering commencing judicial review of an OLRB Review ruling should confirm this position with the Board before commencing the court proceeding, as failure to exhaust all available lower tribunal proceedings may be applied against them by arguing that the judicial review is premature.
Another relatively modern development in administrative law has been an increased use and reliance on "reconsiderations" as an intermediary 'appeal' stage between the making of an Order and the exercise of any court appeal or judicial review rights. Reconsiderations tend to be ill-defined in terms of criteria for reversal, and are often simply written requests to the involved Tribunal for a 'second look' at the case, usually by someone other than the initial adjudicator. Similarly, the consequences of a "successful" 'recon' request can range from either an 'on-the-spot' modification of the original decision, to the convening of an entirely fresh "de novo" hearing - as though no prior hearing had been held.
There is no express authority set out in the Employment Standards Act for reconsideration, and as we have already noted, the ESA Review procedures are exempt from application of the Statutory Powers Procedures Act (SPPA). However the OLRB likely has, under it's general s.118(1) authority [see s.1(b) above] the ability to establish "reconsideration" procedures applicable to ESA Review cases. Indeed, it already has rudimentary rules for that purpose in Rule 18.
Rule 18 establishes that:
Further, forms and an Information Bulletin have been issued by the Board for these purposes.
- a request for reconsideration "include complete written representations in support of the request";
- if then, after an initial review of the Request the Board is of the view that it wants submissions from the other parties, it will request "complete written representations" from them;
- the normal deadline for making a Request for Reconsideration is 20 days from receipt of the original decision, subject to a discretionary extension by the Board.
. Information Bulletin #19: Requests for Reconsideration
My conclusion that the Board does not intend its reconsideration procedures to apply to ESA matters is drawn peripherally from the heading to Form A-49, which reads "Statutory Powers Procedures Act and/or Occupational Health and Safety Act Request for Reconsideration". This plainly implies that ESA matters are not countenanced as subject to reconsiderations (although a more express statement in the Rules of Practice - or at least in the "Information Bulletin" [#19] - would have been welcome).
15. Court Review of OLRB ESA Reviews
Unlike most administrative tribunal procedures, there is no statutory provision made for a further "appeal" of the Review matter to court (typically, the Divisional Court) [ESA 119(13)].
As such the only further legal recourse for an unsatisfied party after a Review appears to be "judicial review", which is a particular form of civil procedure focussing traditionally on whether a tribunal (or other government actor) acted within their jurisdiction. Judicial reviews rarely question fact-findings, and also tend to defer to legal interpretations close to the heart of the specialized jurisdiction of the tribunal (this is very much the case with OLRB rulings).
On this topic the ESA provides that, on such a judicial review: "a decision of the Board concerning the interpretation of this Act shall not be overturned unless the decision is unreasonable" [ESA 119(4)]. "Reasonableness" (were they close?), as a judicial review standard is considered deferential to the Board, it is often contrasted with 'correctness' (were they wrong?), the latter being considered a more applicant friendly standard.
Otherwise, the differences between a court appeal and judicial review are primarily procedural. Interested readers should review Rule 68 of the Rules of Civil Procedure.