The Legal Landscape of Work: An Overview of Employment Law in Canada (with an Emphasis on Ontario’s Regulatory Framework)

Employment law in Canada is really the law of work: the rules that govern how employers and employees deal with each other, in both unionized and non-unionized workplaces. It’s built on a mix of constitutional rules, statutes, and common law, and then enforced by a web of tribunals and courts that specialize in different parts of the system.

Most people reading about employment law in Canada are actually living under provincial law—especially in Ontario—because only a small slice of jobs fall under federal jurisdiction. Understanding who regulates you, and what laws apply, is step one in staying out of trouble (if you’re an employer) or protecting your rights (if you’re a worker).

Below, we’ll walk through the full picture—without leaving any of the key pieces out—and keep a clear focus on Ontario’s regime.

📚 1. Employment Law vs Labour Law in Canada

When people talk about employment law in Canada, they often mix two related but distinct areas:

• Employment law (non-union)
  • Covers individual contracts of employment.
  • Key topics: hiring, standards, termination, wrongful dismissal, human rights, WSIB benefits.
• Labour law (unionized)
  • Governs collective bargaining, strikes/lockouts, unfair labour practices, and grievance arbitration.

Both are shaped by the same constitutional backbone, but they operate differently. In non-union workplaces, rights flow from statutes + common law contracts. In unionized workplaces, rights largely come from the collective agreement + labour law statutes, enforced in arbitration rather than civil court.

🧱 2. Foundational Sources of Employment Law in Canada

⚖️ 2.1 Constitutional Law

At the top of the legal food chain for employment law in Canada is the Constitution, which includes:

• The Constitution Act, 1867 (formerly the British North America Act, 1867), which divides powers between federal and provincial governments.
• The Constitution Act, 1982, including the Canadian Charter of Rights and Freedoms.

Why this matters:

• The 1867 Act decides who can make which employment laws (federal vs provincial).
• The Charter protects rights like freedom of association (collective bargaining and strikes), and equality rights, which are central to discrimination and labour cases.

All statutes and common-law rules about employment law in Canada must conform to the Constitution.

📜 2.2 Statute Law and Subordinate Legislation

Statutes are laws passed by Parliament (federal) or the Legislature (provincial). This is where most day-to-day employment rights live:

• Minimum wage
• Hours of work and overtime
• Leaves of absence
• Health and safety
• Workers’ compensation
• Human rights

Under statutes, you also get subordinate legislation such as regulations, rules, and codes. These are made under the authority of a statute but carry the same legal force for the areas they cover.

In practice, if you’re dealing with employment law in Canada, you’re usually reading:

• An Act (like Ontario’s Employment Standards Act, 2000), and
• Its associated regulations.

📚 2.3 Common Law (Case Law)

Common law is judge-made law:

• Courts decide cases.
• Those decisions become precedents.
• Future judges follow those precedents unless there’s a reason to depart.

In non-union workplaces, common law:

• Governs employment contracts.
• Fills gaps where statutes are silent.
• Sets rules for reasonable notice, wrongful dismissal, and constructive dismissal.

Critical hierarchy:

1. Constitution at the top.
2. Statutes and regulations, which override common law if they conflict.
3. Common law, which operates underneath and fills the cracks.

🏛️ 3. Who Regulates What? Federal vs Provincial Jurisdiction

🧭 3.1 Federal vs Provincial Powers

Canada’s constitution splits powers between Ottawa and the provinces. For employment law in Canada:

• About 90% of employees are covered by provincial/territorial employment standards and labour laws.
• Roughly 10% fall under federal law—mainly industries of national importance: banks, airlines, interprovincial trucking and rail, telecom, etc.

If you work at a local restaurant, clinic, or software company in Ontario, you’re almost certainly provincially regulated.

🧩 3.2 Key Ontario Employment Statutes

For Ontario workers and employers, the core statutes are:

• Employment Standards Act, 2000 (ESA) – minimum standards for wages, hours, overtime, vacation, public holidays, leaves, termination, and severance.
• Occupational Health and Safety Act (OHSA) – duties and rules to prevent workplace injuries, illnesses, and harassment.
• Workplace Safety and Insurance Act, 1997 (WSIA) – no-fault workers’ compensation scheme administered by the WSIB.
• Human Rights Code (Ontario) – protects workers and others from discrimination and harassment on specific grounds.
• Labour Relations Act, 1995 (LRA) – unionization, collective bargaining, unfair labour practices, strikes and lockouts.

Together, these statutes heavily shape employment law in Canada when you’re inside Ontario’s borders.

🇨🇦 3.3 Key Federal Employment Statutes

For federally regulated workplaces, the main laws are:

• Canada Labour Code – federal minimum standards, occupational health and safety, and labour relations.
• Canadian Human Rights Act – federal anti-discrimination law (including pay equity).
• Canada Pension Plan (CPP) and Employment Insurance Act (EI) – apply broadly across provinces and industries.

📏 4. The Statutory Floor: Ontario’s Employment Standards Act, 2000

The ESA is your “floor of rights” in Ontario. It sets minimum standards that most employers cannot contract out of. If a contract gives you less than ESA minimums, that clause is void and the statute wins.

📌 4.1 No Contracting Out & Basic Rules

Key principles:

• No contracting out of minimum standards. Any waiver is invalid if it gives less than ESA.
• Better-than-ESA terms are allowed. If your contract is more generous, those terms apply.
• Employers must:
  • Pay wages regularly.
  • Provide an itemized wage statement (pay stub) showing pay period, rate, gross/net pay, and deductions.
  • Keep detailed records: name, address, date of birth for young workers, start date, hours worked, etc.
• Deductions are only permitted for:
  • Statutory requirements (tax, CPP, EI).
  • Court orders (like garnishments).
  • Written, specific authorizations for a clear amount/benefit (e.g., a uniform charge or cash advance).

Important nuance: “Wages” generally do NOT include tips and gratuities, which are regulated differently.

Employers must also post the official ESA poster in a visible location and, now, often provide it electronically, explaining key rights and anti-reprisal protections.

⏰ 4.2 Core Minimum Standards: Wages, Hours, Overtime, Equal Pay & Leaves

Under employment law in Canada as applied via Ontario’s ESA:

• Minimum Wage
  • Employers must pay at least the current Ontario minimum wage for the relevant category (general, student, liquor server, etc.).
• Hours of Work & Overtime
  • Default max: 8 hours per day (or the established regular day) and 48 hours per week, subject to written agreements and, for some arrangements, Director approval.
  • Overtime: at least 1.5× regular rate after 44 hours in a week, unless an averaging agreement applies and is properly authorized.
• Equal Pay for Equal Work (Sex)
  • An employer cannot pay an employee of one sex less than an employee of the other sex when:
    • The work is substantially the same.
    • Performed in the same establishment.
    • Performed under similar working conditions.
    • Requires substantially the same skill, effort, and responsibility.
  • Differences are allowed if based on:
    • Seniority system.
    • Merit system.
    • Quantity/quality of production.
    • Any factor other than sex.
• Leaves of Absence
  The ESA provides multiple job-protected leaves, including:
  • Pregnancy leave (birth mothers).
  • Parental leave (any parent, including adoptive).
  • Other specialized leaves (family medical, critical illness, domestic or sexual violence leave, reservist leave, long-term illness, etc., some updated under recent “Working for Workers” Acts).

During ESA leaves:

• The employee’s job is protected.
• They must be returned to the same or a comparable position.
• Service and certain benefits continue to accrue.

🧾 4.3 Termination, Temporary Layoffs & Severance

Termination for ESA purposes happens when:

• The employer dismisses the employee.
• A layoff exceeds the ESA definition of a temporary layoff.
• There’s a constructive dismissal and the employee quits within a reasonable time after the change.

Individual ESA notice in Ontario runs from 1 to 8 weeks based on length of service once the employee has at least three months’ service.

Temporary Layoffs

Under the ESA today, a layoff is usually “temporary” if it’s:

• No more than 13 weeks in any period of 20 consecutive weeks, or
• Up to 35 weeks in a 52-week period if specific conditions are met (e.g., continued benefits or substantial payments, recall rights in a collective agreement, etc.)

If those thresholds are exceeded and no exception applies, the layoff is deemed a termination, triggering ESA termination entitlements and possibly severance.

ESA Severance Pay

Separate from notice, severance pay may apply where:

• The employer has a payroll of at least $2.5 million, or
• 50+ employees are terminated within a six-month period due to all or part of the business closing,

AND the employee has 5+ years of service.

Severance is a lump sum based on years of service, on top of ESA notice.

Wilful Misconduct Exemption

ESA notice and severance are not owed if the employee engaged in:

Wilful misconduct, disobedience or wilful neglect of duty that is not trivial and has not been condoned by the employer.

This is a high bar—the conduct must be deliberate, not just careless—and is often tougher to prove than “just cause” at common law.

💸 4.4 ESA–WSIB Reimbursement Link

There’s a small but important admin overlap between the ESA and Ontario’s workers’ compensation system:

• For certain paid ESA leaves, employers can apply to the WSIB for reimbursement, up to $200 per day per employee.
• WSIB’s decision on this reimbursement is final—there is no reconsideration or appeal within WSIB or to WSIAT.
• Information-sharing is allowed between ESA enforcement and WSIB administration for enforcement and compliance purposes.

🦺 5. Health and Safety at Work: Ontario’s OHSA

The Occupational Health and Safety Act (OHSA) is the backbone of workplace safety in Ontario and a critical piece of employment law in Canada when it comes to physical and psychological safety.

🧱 5.1 Internal Responsibility System (IRS)

OHSA is built on the Internal Responsibility System:

• Employers must take every reasonable precaution for worker safety.
• Supervisors must ensure workers understand and follow OHSA and company rules.
• Workers must work safely and follow instructions and use protective equipment.

In many workplaces:

• Joint Health and Safety Committees (JHSCs) are required if you have 20+ workers.
• Smaller sites may require a health and safety representative.

🧠 5.2 Three Fundamental Worker Rights

Under OHSA, workers have three key rights:

1. Right to Participate
   • Through JHSCs or representatives in identifying hazards and recommending improvements.
2. Right to Know
   • About hazards, especially via WHMIS (Workplace Hazardous Materials Information System), which governs labels, safety data sheets, and training on hazardous products.
3. Right to Refuse Unsafe Work
   • If a worker reasonably believes work is dangerous to them or another worker, they can refuse and trigger a formal investigation process.

🧯 5.3 Violence, Harassment & Mental Safety

Modern OHSA obligations go beyond physical hazards:

• Employers must:
  • Assess the risk of workplace violence.
  • Develop and maintain violence and harassment policies and programs.
  • Implement reporting and investigation procedures.
  • Take steps to protect workers from domestic violence risk that may enter the workplace.

These requirements mesh with human rights obligations, especially where harassment relates to a protected ground.

🔨 5.4 Enforcement & Penalties

Ministry of Labour inspectors can:

• Enter workplaces without a warrant (during normal hours).
• Inspect, take samples, interview, and issue orders.

Penalties have increased sharply in recent years:

• Corporations can now face up to $2 million per OHSA offence.
• Individuals (including some managers) can face up to $500,000 and/or up to 12 months in jail, with even higher maximums for directors and officers in some cases.

On top of that, serious incidents can trigger Criminal Code liability for organizations and individuals under Canada’s corporate criminal negligence provisions.

🩹 6. No-Fault Protection: Workplace Safety and Insurance Act, 1997 (WSIA)

The WSIA is Ontario’s workers’ compensation legislation, replacing old-school negligence lawsuits between injured workers and employers.

🕰️ 6.1 Why WSIA Exists

Historically, injured workers had to sue employers in tort and faced harsh defences like:

• Contributory negligence (you were partly at fault).
• Voluntary assumption of risk (you accepted the job’s danger).

The workers’ compensation model trades those lawsuits for no-fault, guaranteed benefits, but generally no damages for pain and suffering.

💰 6.2 No-Fault Compensation & Funding

Under WSIA:

• Workers injured in the course of employment get:
  • Wage-loss benefits.
  • Health-care benefits.
  • Sometimes, non-economic loss benefits or other supports.
• In exchange:
  • They cannot usually sue their employer (or certain co-workers) in tort for the same injury.

Funding:

• The system is funded entirely by employers via premiums.
• Premiums vary by industry, risk class and experience rating—good safety records can lower costs; poor ones can raise them.

Workers cannot pay WSIB premiums.

🧷 6.3 WSIB Administration & Re-Employment

The Workplace Safety and Insurance Board (WSIB):

• Administers claims.
• Collects premiums.
• Has exclusive jurisdiction over most entitlement questions.

WSIB decisions must be made on the “merits and justice of the case”, not rigid precedent, though policies guide decision-makers.

Re-employment obligations:

• Employers with 20+ workers have a duty to re-employ injured workers who:
  • Have worked at least one year before the injury.
  • Are medically able to perform essential duties of the job (or suitable modified work). (WSIB)

This duty normally lasts until:

• Two years after the date of injury.
• Or one year after WSIB says the worker can perform essential duties again.
• Or when the worker turns 65.

If the worker cannot return to their old job, WSIB may create a work transition plan (retraining, job search support).

Appeals from final WSIB decisions go to the Workplace Safety and Insurance Appeals Tribunal (WSIAT), an independent tribunal.

🚨 6.4 Offences Under WSIA

It’s an offence to:

• Knowingly make false or misleading statements about a claim or reporting obligations.
• Fail to report a material change affecting benefits within the required time (often 10 days).

Penalties can reach $25,000 and/or up to 6 months in jail for individuals, and $500,000 for corporations, with fines forming part of the insurance fund. (WSIB)

🧑‍⚖️ 7. Protecting Dignity: Ontario’s Human Rights Code

The Ontario Human Rights Code sits just below the Constitution and is often called quasi-constitutional. It overrides conflicting provincial laws unless explicitly stated otherwise. (Ontario Human Rights Commission)

🧬 7.1 Protected Grounds and Scope

The Code prohibits discrimination and harassment in employment, services, housing, and contracts based on specific protected grounds, including:

• Race, ancestry, colour, ethnic origin, place of origin.
• Citizenship, creed (religion).
• Sex (including pregnancy), sexual orientation.
• Gender identity, gender expression.
• Age.
• Marital status, family status.
• Disability.
• Record of offences (in employment only).

Important points:

• The definition of “employment” is broad: full-time, part-time, temporary, casual, contract, and even some unpaid roles like internships.
• The Code targets both direct discrimination and systemic or adverse-effect discrimination—neutral rules that disproportionately harm protected groups.

🛡️ 7.2 Bona Fide Occupational Requirement (BFOR)

Sometimes, a rule that looks discriminatory may be justified as a bona fide occupational requirement, but only if:

1. It’s adopted in good faith for a legitimate work-related purpose.
2. It’s rationally connected to the job’s essential duties.
3. It’s reasonably necessary, meaning the employer can’t accommodate individuals without undue hardship.

🧩 7.3 Duty to Accommodate & Undue Hardship

Employers must accommodate needs related to grounds such as disability, creed, and family status up to undue hardship.

The Code limits undue hardship factors to:

• Cost.
• Outside sources of funding.
• Health and safety.

The employer bears the burden of proof. Stereotypes and generalizations are not enough.

Accommodation is:

• Individualized – tailored to the worker.
• Collaborative – employees must provide reasonable information and cooperate.
• Confidential – medical and personal information must be handled carefully.

Workers also have a right to be free from harassment in the workplace based on any Code ground, including sexual harassment.

📃 8. The Common Law Contract of Employment

For non-unionized workers, underneath the statutes sits the common law contract of employment. This is where employment law in Canada really flexes, especially when there’s a dispute.

📄 8.1 Termination Clauses & ESA Compliance

Termination clauses try to pre-define how much notice/pay a worker gets if let go without cause.

Courts scrutinize these clauses closely:

• If a clause fails to meet or exceed ESA minimums, or could violate the ESA in some scenario, it’s usually void.
• A void clause means the contract does not displace the common law presumption of reasonable notice.

Given recent case law, Ontario employers who crib “creative” termination clauses from old templates often find out in court that they bought themselves a bigger problem.

🤝 8.2 Implied Terms & Duties

Even if not written, certain terms are implied in the employment relationship:

• Employee duties:
  • Competence and diligence.
  • Obedience to lawful and reasonable instructions.
  • Reasonable notice of resignation (for some positions).
• Employer duties:
  • Pay agreed compensation.
  • Provide work, in some cases.
  • Treat employees with civility, decency, respect, and dignity, especially during dismissal.

Failure on the employer side can lead to increased damages (e.g., aggravated damages for bad-faith dismissal conduct).

⚖️ 9. Dismissal Without Cause & Wrongful Dismissal

A dismissal is “wrongful” when an employer ends the relationship without cause and fails to provide sufficient notice or pay in lieu under common law (or breaches the contract).

⏳ 9.1 Reasonable Notice & the Bardal Factors

If no valid termination clause exists, courts apply the classic Bardal test to decide the reasonable notice period:

1. Length of service.
2. Character of employment (type of position).
3. Age of the employee.
4. Availability of similar employment, considering the employee’s experience, training, and qualifications.

Long-service, older employees in senior or specialized roles usually get longer notice periods.

💵 9.2 Damages, Aggravated & Punitive

Standard wrongful dismissal damages:

• Replace the income and benefits the employee would have earned during the reasonable notice period.

On top of that:

• Aggravated damages can be awarded when the employer’s conduct in how they dismissed the employee (e.g., humiliation, unfair accusations, refusal to issue ROE) causes mental distress beyond normal job loss.
• Punitive damages are rare and reserved for malicious, high-handed, or outrageous behaviour.

🔄 9.3 Duty to Mitigate & Constructive Dismissal

Wrongfully dismissed employees must mitigate by taking reasonable steps to find comparable employment:

• If they unreasonably refuse suitable roles, their damages can be reduced.

Constructive dismissal occurs when:

• The employer unilaterally makes a fundamental change to a core term of employment (e.g., large pay cut, demotion, toxic environment) without notice.
• The employee resigns within a reasonable time and treats it as a termination.

The employee may then sue for wrongful dismissal damages as if they were fired.

🔨 10. Dismissal With Cause (Just Cause)

Dismissal for just cause is sometimes called the “capital punishment” of employment law in Canada:

• No ESA termination or severance pay.
• No common law notice or pay in lieu.

🧮 10.1 Standard & Contextual Approach

The employer must prove, on a balance of probabilities, that the employee fundamentally breached the contract.

Courts use a contextual approach:

• Look at the nature and severity of the misconduct.
• Consider the employee’s length of service, disciplinary history, role, and personal circumstances.
• Ask whether dismissal was a proportionate response.

One big trap for employers is condonation:

• If the employer knows about misconduct and does nothing, or delays action unreasonably, the behaviour may be considered condoned.
• Condoned misconduct generally can’t later be used as just cause.

🤝 11. Labour Relations & Collective Bargaining (Ontario)

When employees unionize, the legal landscape shifts.

🧾 11.1 Labour Relations Act & Collective Agreements

Under Ontario’s Labour Relations Act, 1995 (LRA):

• A certified union becomes the exclusive bargaining agent for a defined group of employees (the bargaining unit).
• The employer and union negotiate a collective agreement that typically covers:
  • Wages and benefits.
  • Seniority rules, layoffs, and recalls.
  • Scheduling, overtime allocations.
  • Grievance and arbitration procedures.

Collective agreements often provide more generous rights than ESA minimums and shape day-to-day work more than any individual contract.

⚖️ 11.2 Disputes, ULPs, Strikes & Lockouts

Under the LRA:

• Disputes about the interpretation or application of the collective agreement go to binding arbitration, not civil court.
• Unfair Labour Practices (ULPs) include:
  • Employer interference with union organizing.
  • Coercion, intimidation, or threats.
  • Discriminating because of union activity.

Strikes and lockouts:

• Generally banned during the term of a collective agreement.
• Only lawful after certain steps (bargaining to impasse, conciliation, strike vote, etc.).

The right to collective bargaining and to strike is now recognized as part of freedom of association under the Charter, although governments can still limit it in narrow, justified circumstances.

🏢 12. Administrative Tribunals: The Workhorses of the System

Employment law in Canada relies heavily on specialized tribunals.

🧷 12.1 Ontario Labour Relations Board (OLRB)

The OLRB:

• Handles union certifications, decertifications, and ULP complaints under the LRA.
• Hears certain ESA appeals from Employment Standards Officer decisions, usually de novo (fresh hearing).

🧷 12.2 WSIB & WSIAT

• WSIB decides entitlement and benefits under WSIA.
• WSIAT is the independent appeal tribunal for final WSIB decisions.

Paralegals in Ontario are commonly licensed and experienced in representing parties at WSIB/WSIAT.

🧷 12.3 Human Rights Tribunal of Ontario (HRTO)

The HRTO:

• Receives human rights applications (complaints).
• Adjudicates whether discrimination or harassment occurred.
• Orders remedies such as:
  • Monetary compensation for injury to dignity and lost income.
  • Non-monetary orders (training, policy changes, reinstatement).

🧾 13. How Enforcement Works Day-to-Day

👮 13.1 Employment Standards Enforcement

The ESA is enforced by Employment Standards Officers (ESOs) within the Ministry of Labour:

• Employees can file complaints (often online).
• ESOs can investigate, require records, and interview parties.
• They can issue:
  • Orders to pay wages.
  • Compliance orders.
  • Notices of contravention (administrative penalties).

ESA violations can also be prosecuted in Provincial Offences Court, with fines against individuals and corporations.

⚖️ 13.2 Civil Courts & Class Actions

Civil courts remain essential for:

• Wrongful dismissal claims.
• Breach of contract cases (e.g., unpaid bonuses, stock options).
• Certain ESA-related claims framed as breach of contract (e.g., unpaid overtime), sometimes brought as class actions when many employees are affected.

🧭 14. Practical Takeaways for Workers and Employers

For workers:

• Know which laws apply to you: provincial vs federal.
• Remember ESA sets minimums, not maximums.
• Human rights, OHSA, and WSIA are separate but overlapping protections.
• Don’t assume a termination clause is valid just because it’s in writing.

For employers:

• Align contracts with ESA—and recent case law—so they’re enforceable.
• Invest in safety and human rights policies; the fines and reputational risks are too big to ignore.
• Use clear, documented processes for performance management and discipline to avoid “surprise” just-cause fights.
• If you’re unionized, treat the collective agreement like your employment “bible” and follow grievance/arbitration processes carefully.

For everyone trying to navigate employment law in Canada, especially in Ontario, the theme is simple: statutes set the rules of the game, tribunals enforce them, and common law fills the gaps. The system is designed to rebalance the unequal power between employers and employees—but only if people actually use it.

❓ 15. FAQs About Employment Law in Canada and Ontario

Q1. Does the Employment Standards Act apply to every job in Ontario?
No. Some occupations and sectors are fully or partly exempt (e.g., certain managers, professionals, and federally regulated workplaces). Always check ESA exemptions and whether you fall under the Canada Labour Code instead.

Q2. Can an employment contract override ESA minimums if I sign it willingly?
No. You cannot “sign away” ESA minimum standards. Any clause giving you less than ESA minimums is void, even if you agreed.

Q3. How is “employment law in Canada” different if I’m in Quebec?
Quebec uses a civil law system (Civil Code) plus its own statutes, so the common-law concepts about reasonable notice and contracts don’t apply in the same way. The general idea of minimum standards and human rights is similar, but the legal tools differ.

Q4. What’s the difference between ESA termination pay and common law notice?
ESA termination pay is the minimum statutory amount (1–8 weeks based on service). Common law notice can be much higher, based on the Bardal factors, unless a valid contract limits it.

Q5. Can I sue my employer for a work injury if I’m covered by WSIB?
Usually no. The WSIA trades your right to sue for a no-fault benefit system. There are limited exceptions, but most injuries go through WSIB, not civil court.

Q6. How is workplace harassment handled—ESA, OHSA, or Human Rights Code?
All three can be involved:

• OHSA deals with workplace harassment policies, procedures, and investigations.
• The Human Rights Code applies if harassment is linked to a protected ground.
• ESA applies where harassment leads to constructive dismissal or reprisal.

Q7. Do I get ESA protection if I’m an independent contractor?
If you’re truly an independent business, ESA may not apply. But many “contractors” are actually dependent contractors or employees in disguise, in which case ESA and other protections do apply. The label in the contract isn’t decisive.

Q8. What is constructive dismissal in plain language?
It’s when your employer makes a big, unilateral change to a key term of your job (like a huge pay cut or demotion) without notice. If you resign soon after because of that change, the law may treat it as a termination.

Q9. Can my employer fire me for filing an ESA or human rights complaint?
They can try, but that’s a reprisal, which is illegal. Tribunals treat reprisals very seriously and can order reinstatement and significant damages.

Q10. Do unionized employees get wrongful dismissal claims in court?
No. Unionized employees are bound by the collective agreement and must go through the grievance and arbitration process instead of suing in court.

Q11. How long does my employer have to keep a job open after a WSIB injury?
If the employer has 20+ workers and you had 1+ year of service, they have a re-employment obligation that can last up to two years after injury or one year after you’re medically able to perform essential duties (whichever comes first, subject to age limits). (WSIB)

Q12. Are tips part of my ESA wages?
Generally, tips and gratuities are treated differently from wages and have their own rules. Employers can’t usually take or withhold tips except in specific, legally allowed ways.

Q13. What’s the difference between discrimination and a personality clash?
Discrimination links negative treatment to a protected ground (like race, gender, disability). A personality clash, while unpleasant, isn’t illegal discrimination unless it ties back to one of those grounds.

Q14. Can I still strike if the government passes “back-to-work” legislation?
Not legally. Back-to-work laws can temporarily suspend the right to strike, though they can be challenged under the Charter. But ignoring them can lead to serious penalties for unions and individuals.

Q15. I’m an employer—what’s the easiest way to stay compliant?
At a minimum:

• Keep contracts ESA-compliant and updated.
• Maintain proper policies (harassment, violence, health and safety).
• Document performance issues.
• Get legal advice before implementing major changes or terminations, not after.

❓ Extensive FAQs on Canadian and Ontario Labour Law

🧱 A. Foundational Legal Framework

1. What are the three main sources of employment law in Canada?
The three main sources of employment law in Canada are:

• Statute law – legislation passed by Parliament or provincial legislatures.

• Constitutional law – including the Constitution Acts and the Canadian Charter of Rights and Freedoms.

• Common law – judge-made law developed through court decisions.

The Constitution sits at the top of this hierarchy and is the most important primary source of law.

2. How is law-making authority divided between the federal and provincial governments?
The Constitution Act, 1867 (originally the British North America Act, 1867) divides powers:

• The federal government handles national matters (e.g., defence, banking, interprovincial transportation).

• The provinces regulate local matters such as property, civil rights, and most employment relationships.

This division determines which level of government can enact particular labour and employment laws.

3. Which level of government governs most employees in Canada?
Roughly 90% of employees in Canada are covered by provincial employment legislation. Only about 10% fall under federal jurisdiction, mainly in industries of national importance like banking, airlines, telecommunications, and the postal service.

4. What happens if a government passes a law outside its jurisdiction?
If either level of government enacts a law on a subject matter outside its constitutional authority, that law is considered:

• Ultra vires – “beyond the powers,” and

• Invalid, with no legal force or effect.

The courts decide whether a government has exceeded its jurisdiction and can strike down the law.

5. What is “subordinate legislation”?
Subordinate legislation consists of rules such as regulations, codes, and rules made by bodies or officials who are delegated law-making authority by the main legislature. Even though it is “subordinate,” this type of legislation is legally binding and effective as if it had been enacted by Parliament or the legislature, provided it stays within the scope of the enabling statute.

📏 B. Minimum Employment Standards (Employment Standards Act, 2000 – ESA)

6. What is the main purpose of the ESA in Ontario?
The ESA sets out the minimum terms and conditions of employment for most employees in Ontario. It creates a “floor” of rights, covering things like minimum wage, overtime pay, hours of work, public holidays, vacation, termination notice, and severance. Employers cannot legally provide less than these minimums.

7. Can an employer and employee agree to bypass or reduce ESA standards?
No. Employers, employees, and their agents cannot contract out of or waive ESA minimum standards. Any agreement that provides less than ESA minimums is void. However, if a contract or another statute gives the employee a greater benefit than the ESA on the same subject, the greater benefit applies.

8. Who is generally exempt from the application of the ESA?
The ESA does not apply, fully or in part, to certain groups, including:

• Employees in federally regulated sectors (e.g., banks, airlines).

• Employees of a foreign embassy or consulate.

• Secondary school students working in approved school work-experience programs.

• Police officers (except for certain provisions, like lie detectors).

• People performing work as part of a court order or sentence.

There are many other specific exemptions and special rules; these are just key examples.

9. What are the general maximum limits on hours of work in Ontario?
Subject to specific agreements and approvals:

• An employer generally cannot require or permit an employee to work more than 8 hours per day (or the employer’s established regular workday), and

• No more than 48 hours per week.

Exceeding these limits typically requires written agreements and, for some arrangements, approval from the Director of Employment Standards.

10. When must an employee receive overtime pay, and at what rate?
Most employees are entitled to overtime pay when they work more than 44 hours in a work week. The overtime rate is at least 1.5 times (time-and-a-half) the employee’s regular rate of pay for each hour over 44.

11. Can an employer and employee agree to average hours for calculating overtime?
Yes. Employer and employee can agree in writing to average hours of work over a period of two or more consecutive weeks, up to a maximum of four weeks (or a shorter period specified in the agreement). This averaging affects when overtime is triggered. In many cases, these agreements must also be approved by the Director of Employment Standards.

12. Are supervisory or managerial employees entitled to overtime pay?
No. Employees whose work is primarily managerial or supervisory in character are generally exempt from overtime pay under the ESA.

However, if a person classified as a manager or supervisor spends at least half of their time doing non-managerial tasks during a given week, they may qualify for overtime for that week.

13. What is the “three-hour rule”?
If an employee who normally works more than three hours a day:

• Is required to report for work, but

• Works less than three hours,

they are deemed to have worked three hours for minimum wage purposes. This guarantees a minimum amount of pay for reporting to work, unless the lack of work is caused by circumstances beyond the employer’s control (e.g., fire, power failure).

14. What are the rules regarding Equal Pay for Equal Work?
An employer cannot pay a worker of one sex less than an employee of the other sex if:

1. They do substantially the same kind of work in the same establishment.

2. The work requires substantially the same skill, effort, and responsibility.

3. The work is performed under similar working conditions.

Pay differences are allowed if they are based on:

• A seniority system.

• A merit system.

• A system measuring quantity or quality of production.

• Any factor other than sex.

Employers are not allowed to reduce pay to achieve compliance.

15. What are the statutory notice periods for individual termination?
ESA individual termination notice depends on continuous length of service. Examples:

• 1 week of notice after one year but less than three years of service.

• 3 weeks of notice after three years but less than four years.

• Up to 8 weeks of notice for eight or more years of service.

There is a full scale in the ESA, but these points illustrate how notice increases with service.

16. What is required during the statutory notice period?
If an employer gives working notice instead of pay in lieu, the employer must:

• Continue to pay the employee their regular wages for the regular workweek.

• Maintain contributions to benefit plans and not reduce the employee’s wage rate.

• Avoid unilaterally changing essential terms of employment during the notice period.

17. What constitutes termination for the purposes of the ESA?
For ESA purposes, a termination occurs when:

• The employer dismisses the employee.

• A layoff lasts longer than a temporary layoff as defined by the ESA.

• The employer constructively dismisses the employee (a substantial change to a key term), and the employee resigns within a reasonable time because of that change.

18. When is an employer exempt from paying termination notice or pay in lieu?
An employer does not have to provide ESA notice or termination pay if the employee has committed:

“Wilful misconduct, disobedience or wilful neglect of duty that is not trivial and has not been condoned by the employer.”

This standard requires intentional or deliberate misconduct and is stricter than mere poor performance or carelessness.

19. When is an employee entitled to statutory severance pay?
ESA severance pay applies when an employee:

• Has five or more years of service, and

• Either:

  1. The employer has a payroll of $2.5 million or more, and severs the employment; or

  2. The employer severs 50 or more employees within a six-month period due to a permanent discontinuance of all or part of the business.

Severance is a separate entitlement from termination notice.

🦺 C. Workplace Health, Safety, and Insurance

20. What is the purpose of the Occupational Health and Safety Act (OHSA)?
OHSA is aimed at the prevention of workplace accidents and occupational diseases. It sets out duties for employers, supervisors, and workers and promotes a physically and mentally safe work environment.

21. What is the core principle governing responsibilities under OHSA?
OHSA is based on the Internal Responsibility System (IRS). This principle says that all workplace parties share responsibility for health and safety:

• Employers must take every reasonable precaution to protect workers.

• Supervisors must ensure workers follow the law and receive proper instruction.

• Workers must work safely and follow prescribed procedures.

22. What are the fundamental rights of workers under OHSA?
Workers have three key rights:

1. Right to Participate – e.g., through a Joint Health and Safety Committee (JHSC) or a worker health and safety representative.

2. Right to Refuse Unsafe Work – to decline work they reasonably believe is dangerous to themselves or others.

3. Right to Know – about potential hazards, often communicated through training and systems like WHMIS (Workplace Hazardous Materials Information System).

23. What are the potential penalties for violating OHSA?
Penalties can be severe:

• An individual can face fines up to $25,000, imprisonment up to 12 months, or both.

• A corporation can face fines up to $500,000 per offence (and higher under more recent amendments in practice).

These penalties underline how seriously the law treats health and safety obligations.

24. What system provides compensation for injured workers in Ontario?
The Workplace Safety and Insurance Act, 1997 (WSIA) sets up a no-fault insurance system for work-related injuries and diseases. Workers receive benefits when injuries arise out of and in the course of employment, regardless of who was at fault.

25. Who funds the WSIA system?
The workers’ compensation system is funded entirely by employers through premiums. It is illegal for workers to contribute to WSIB (Workplace Safety and Insurance Board) premiums.

26. What right do workers give up in exchange for no-fault compensation under WSIA?
In exchange for guaranteed no-fault benefits, workers generally cannot sue their employers in tort for occupational injuries and illnesses. Their remedy is to claim benefits under WSIA rather than pursue a negligence lawsuit.

⚖️ D. Human Rights and Non-Discrimination

27. What is the scope and authority of the Ontario Human Rights Code?
The Ontario Human Rights Code seeks to prevent and remedy discrimination. It has quasi-constitutional status, meaning it overrides conflicting provincial legislation unless that other law explicitly states it operates despite the Code.

28. What are the prohibited grounds for discrimination in employment?
In employment, discrimination is prohibited on grounds including:

• Race, ancestry, place of origin, colour, ethnic origin.

• Citizenship and creed (religion).

• Sex (including pregnancy), sexual orientation, gender identity, gender expression.

• Age.

• Marital status and family status.

• Disability.

• Record of offences (for employment purposes).

These 16 grounds cover most recognized forms of protected status.

29. What is the “Duty to Accommodate”?
The duty to accommodate requires employers to take positive steps to adjust workplace rules, practices, or conditions to reduce or eliminate the impact of discrimination on an individual or group—often in relation to disability, creed, or family status—up to the point of undue hardship.

30. What factors define “undue hardship” when assessing accommodation needs?
Undue hardship is assessed only on three statutory factors:

• Cost.

• Availability of outside sources of funding.

• Health and safety implications.

The employer must prove that further accommodation would cause undue hardship based on these factors; vague claims or stereotypes are not enough.

🧑‍🏭 E. Labour Relations (Labour Relations Act, 1995 – LRA)

31. What is the key distinction between “employment law” and “labour law”?

• Employment law usually describes the legal rules governing non-unionized individual employment relationships.

• Labour law (labour relations) governs the collective relationship between unions and employers in unionized workplaces, including collective bargaining, strikes, and grievance arbitration.

32. What mechanisms govern dispute resolution in a unionized workplace?
In a unionized workplace:

• The union and employer negotiate a collective agreement, which sets terms and conditions of employment.

• Disputes about the interpretation, application, or alleged breach of the collective agreement are resolved through binding arbitration, not through civil courts.

33. When are strikes and lockouts prohibited under the LRA?
Strikes (employees refusing to work) and lockouts (employers refusing to allow employees to work) are generally prohibited during the term of a collective agreement. They are only lawful in specific circumstances, usually during bargaining for a new agreement and after legal prerequisites are met.

34. What are Unfair Labour Practices (ULPs)?
Unfair Labour Practices are actions that interfere with employees’ freedom of association and union activity. Examples include:

• Coercing or intimidating employees regarding union membership.

• Interfering with the formation, selection, or administration of a union.

The LRA prohibits such conduct and provides remedies through the labour board.

🧷 F. Enforcement, Appeals, and Penalties

35. Who is responsible for administering the ESA and enforcing its provisions?
The ESA is administered by the Minister of Labour, who appoints a Director of Employment Standards. The Director oversees administration and enforcement, which is carried out in practice by Employment Standards Officers (ESOs).

36. What actions are considered illegal reprisals under the ESA?
A reprisal happens when an employer penalizes or threatens to penalize an employee because the employee:

• Asked the employer to comply with the ESA or inquired about their rights.

• Filed a complaint with the Ministry of Labour.

• Exercised or attempted to exercise any right under the ESA.

• Is about to take, or has taken, an ESA-protected leave.

Reprisals are illegal and can result in significant remedies against the employer.

37. What are the powers of an Employment Standards Officer (ESO) during an investigation?
During an investigation or inspection, an ESO may:

• Enter and inspect a workplace without a warrant during business hours.

• Examine and copy records (e.g., payroll, schedules).

• Question employers and employees.

• Remove documents for review.

These powers allow ESOs to verify compliance and enforce the ESA.

38. What is the process for appealing a decision made by an ESO?
Either the employee or employer can apply to the Ontario Labour Relations Board (OLRB) to review certain ESA decisions (e.g., an Order to Pay Wages or a refusal to issue an order). The application must generally be filed within a 30-day deadline from when the decision or order is served.

39. What is the OLRB’s approach when reviewing an ESO’s decision?
The OLRB usually conducts a de novo (fresh) hearing:

• It does not simply review whether the ESO followed proper procedure.

• Instead, it looks at all relevant evidence afresh and makes its own findings and conclusions.

40. What is the maximum fine for a corporation convicted of an ESA offence in Provincial Offences Court?
If prosecuted under Part III of the Provincial Offences Act:

• A corporation can face a maximum fine of $100,000 for a first offence.

• Fines can escalate for repeated offences, up to $500,000 in some cases.

41. Which entities are responsible for regulating specialized industrial relations at the federal level?
At the federal level:

• The Canada Industrial Relations Board (CIRB), created under the Canada Labour Code, regulates labour relations in federally regulated industries.

• Umpires and other decision-makers also operate under the Employment Insurance Act for EI-related disputes and decisions.

📌 16. Conclusion: Navigating Employment Law in Canada and Ontario

Employment law in Canada, especially in Ontario, is a layered system:

• Constitutional law decides who regulates what and protects core rights.
• Statutes like the ESA, OHSA, WSIA, the Human Rights Code, and the LRA set hard rules on standards, safety, compensation, and dignity.
• Common law fills in the contract pieces—especially around dismissal and damages.
• Tribunals and courts make all of this real in practice.

For workers, understanding these pillars can be the difference between silently accepting an unfair situation and confidently asserting your rights. For employers, getting this wrong isn’t just “a small risk”—it can mean six-figure liability, reputational damage, and even criminal exposure.

If you’re building policies, contracts, or even software tools that touch employment law in Canada and Ontario, it’s smart to combine good legal advice with solid process and documentation.

If you want help turning this legal framework into practical workflows, tools, or content for you or your organization, you can reach out through the MiltonMarketing.com Contact page to start a tailored plan:
👉 Get help via our contact form

Sources & References (External):

1. Government of Ontario – Your Guide to the Employment Standards Act (termination, temporary layoffs, and standards). (Ontario)
2. Government of Ontario – Guide to the Occupational Health and Safety Act and OHSA penalties updates via Bill 79/Working for Workers Acts. (Ontario)
3. Ontario Human Rights Commission – The Ontario Human Rights Code and System (protected grounds and duties). (Ontario Human Rights Commission)
4. WSIB – Re-employment Obligations and Offences and Penalties – General. (WSIB)
5. Fasken & other national firms – Overviews of labour and employment law in Canada and common law notice concepts. (fasken.com)

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