ESA Exemptions and/or Special Rules" />

Table of Contents | Print Print This Page

Filing an Employment Standards Claim

This guide is provided for your information and convenience only. It is not a legal document. For complete information, refer to the Employment Standards Act, 2000 and its regulations.

Most employees covered under the Employment Standards Act, 2000 (ESA) may file a claim with the Ministry of Labour if they believe their employer is not complying with the law.

Employees can phone the Employment Standards Information Centre for assistance in identifying and defining issues under the ESA and the EPFNA, and finding ways to resolve them at:

  • (416) 326-7160
  • toll free in Ontario at 1-800-531-5551
  • TTY (for hearing impaired) 1-866-567-8893

Please note, the Employment Protection for Foreign Nationals Act (Live-in Caregivers and Others), 2009 ("EPFNA") is a different law from the Employment Standards Act, 2000.

If you are concerned about an Employment Protection for Foreign Nationals Act (Live-in Caregivers and Others), 2009 violation, you must file an EPFNA claim using the correct claim form. You can access an EPFNA claim form on the MOL's website.

When an Employee Cannot File a Claim

There are two situations in which an employee who is covered by the ESA cannot file a claim with the Ministry of Labour:

  1. When an employee is represented by a trade union
  2. Generally speaking, employees represented by a union cannot file a claim. These employees—if they are covered by a collective agreement and whether or not they are actually members of the union—must use the grievance procedure contained in the collective agreement between the employer and the trade union.

  3. When an employee has filed a claim in a court of law
  4. An employee cannot file a claim with the Ministry of Labour for a failure to pay wages or discrimination in benefit plans if the employee has already started a court action against the employer for the same matter.

    In addition, an employee who has started a court action for wrongful dismissal cannot file a claim for termination or severance pay under the ESA with respect to the same termination/severance of employment.

    An employee with questions about whether it is best to file a claim or to sue the employer in court may wish to consult a lawyer before filing a claim.

    Employees also need to be aware that if they have filed a claim with the Ministry of Labour for unpaid wages, benefits, or termination or severance pay that he or she must withdraw the claim within two weeks of the date of filing it with the Ministry if the employee intends to start a court action with respect to those unpaid wages, benefits, or alleged wrongful dismissal. This applies even if the employee's claim is for more than the $10,000 maximum wages that an employer can be ordered to pay by an employment standards officer.

    Note that the restrictions on pursuing a claim through both the courts and with the Ministry of Labour do not apply to claims filed with the Ministry of Labour for compensation or reinstatement (for example, where a claim is filed for a violation of the pregnancy, parental, emergency, family medical leave, or reprisal provisions of the ESA).

Filing a Claim

Employees can get a copy of the Employment Standards Claim Form:

Step 1

In general, employees must try to contact their employer or former employer (or the client of a temporary help agency, if applicable) about the employment standards right(s) they believe have been violated and the amount of money they are owed.

This step may not apply to everyone. For more information on reasons why employees may not need to contact their employers, please see "Reasons Employees May Not Have to Contact Their Employer" later in this chapter.

Step 2

Employees are encouraged to collect important documents about their work histories before completing the claim form. Having these documents close at hand helps claimants fill out the Claim Form.

Step 3

Employees must fill out the required information on the Claim Form. In completing the Claim Form, the employee must give details about:

  • contact information for the claimant;
  • contact information for the employer;
  • which minimum standards were violated (i.e., the employer did not pay overtime; the employee did not receive severance pay);
  • when it happened (dates and times); and
  • what is being claimed (including dollar amounts, if applicable).

In addition, the employee will be asked to give information about the employer, such as:

  • whether the employer is still operating; and
  • whether the employer conducts business at other establishments or operates using any other name(s).

Step 4

It is recommended that an employee file his or her claim submission online. He or she will receive a claim submission number immediately.

Employees may also file a claim:

    In person at select ServiceOntario Centre (1-800-267-8097).

    By mail to:

    Provincial Claims Centre
    Ministry of Labour
    70 Foster Drive, Suite 410
    Roberta Bondar Place
    Sault Ste. Marie, ON
    P6A 6V4.

    By fax: 1-888-252-4684.

    Note: If an employee files a claim submission by fax, in person, or by mail, he or she will receive a letter in the mail with the claim number once all of the required information has been provided. If the claim submission is missing required information, the employee will receive a letter in the mail with the claim submission number and a request to provide the information.

A claim submission number is assigned as soon as the ministry receives and registers your Claim Form. You will be provided with a claim number and your claim will be assigned for investigation once the ministry has verified that all required information has been completed.

A claim should only be filed once. For example, if an employee filed his or her claim online, the employee should not send another copy of the Claim Form to the Ministry of Labour.

Reasons Employees May Not Have to Contact Their Employer

In general, employees are required to try to contact their employer about their employment standards issue before their claim will be assigned for investigation. The following are examples of situations where employees may not be required to contact their employers:

  • The employee already tried to contact his or her employer
  • The money owed to the employee became due five months ago or more (there are time limits for recovery).
  • The workplace has closed down.
  • The employer has gone bankrupt or in receivership.
  • The employee is afraid to do so.
  • The issue does not involve money.
  • The employee is or was working as a live-in caregiver.
  • The employee has difficulty communicating in the language spoken by his or her employer.
  • The employee is a young worker.
  • The employee has a disability that prevents or makes it difficult to contact his or her employer
  • The reason is related to a ground under the Ontario Human Rights Code.

If none of the reasons listed above describe the employee's situation and he or she still feels that there is a good reason not to contact the employer about the issue, the employee will have an opportunity to provide an explanation on the Claim Form.

For more information, please contact the Employment Standards Information Centre at 416-326-7160 or 1-800-531-5551.

Investigation, Enforcement and Appeals

Once a claim submission has been filed, it is reviewed to ensure that all the required information has been provided. If the Claim Form includes all required information, the claim is assigned to an employment standards officer for investigation. If the claim submission is missing required information, the employee will be contacted by the ministry and asked to provide the information within a specified period of time. The claim submission will not be assigned for investigation unless the required information is provided within that time.

During the investigation of a claim, the employee will be asked to provide some or all of the following:

  • Copies of pay stubs or paycheques
  • Copies of T4 slips
  • A copy of his or her written notice of termination (if the employee's employment was terminated and/or severed by the employer and written notice was given)
  • A copy of the employee's Record of Employment, if received
  • A copy of the written contract of employment, if there is one
  • Copies of any warning letters or notices received
  • A record of the hours worked if available (e.g., a calendar record, time sheets, attendance records, diary or notes)

The documents must be provided in the time period set out by the employment standards officer.

Please refer to the chapter entitled "Role of the Ministry of Labour" for information on topics such as:

  • how an investigation is conducted;
  • the kinds of actions an employment standards officer or the ministry may take; and
  • how an employee may appeal an officer's decision.

Maximum Amount of Wages an Employer Can Be Ordered to Pay

With some exceptions, $10,000 is the maximum amount of wages the Ministry of Labour can order an employer to pay an employee. This limit does not apply to claims under those parts of the ESA in which reinstatement and/or compensation can be ordered (for example, parts dealing with leaves of absence, the right of an employee not to be penalized for exercising his or her rights under the ESA, such as a retail employee's right to refuse to work a public holiday).

Time Limits Regarding Claims

Six-month/12 months Limit for Recovering Wages

With two exceptions, the Ministry of Labour can only enforce the recovery of wages that were due within six months of the date the claim was filed:

  • The first exception to this rule deals with vacation pay. Unpaid vacation pay may be recovered if the claim is filed within 12 months of the date the vacation pay came due (rather than 6 months).
  • The second exception is where an employment standards officer finds that an employer has violated the same section of the ESA more than once, with respect to an employee. If at least one of the violations occurred in the six-month period before the claim was filed, the employee will be entitled to recover the wages due for all violations of the same provision that occurred in the 12-month period before the claim was filed.

When Wages Are Due

Generally, wages, except vacation pay, become due on the employee's regular pay day. However, if the employment was terminated by the employer, all the wages owed to the employee (including any unpaid vacation pay as of the date of termination) are due either within seven days of the termination, or on what would have been the employee's next regular pay day, whichever is later.

Example: A typical case

Nhan was employed as a technician for just over three years. His employment was terminated because of a shortage of work on February 1. His next regular pay day would have fallen on February 12. Nhan was given proper notice of his termination but was not paid his last week's wages. On August 30 he filed a claim for those wages. An employment standards officer will investigate Nhan's claim. However, the officer will not be able to issue an order to the employer to recover Nhan's wages because those wages became due more than six months before the date he filed his claim.

Example: When there are repeated violations

Jenny was employed in a restaurant for just over one year and was never paid for public holidays. She quit her job and filed a claim with the ministry on January 5. In the six months before her complaint was filed, Jenny should have been paid public holiday pay for Labour Day, Thanksgiving Day, Christmas Day, December 26 (Boxing Day) and New Year’s Day.

The employer repeatedly violated the public holiday sections of the ESA by not paying Jenny public holiday pay. Because at least one violation of the public holiday provisions occurred within six months of the date Jenny filed her claim, the employment standards investigation is not limited to recovering wages that became due in the six-month period before the date her claim was filed (January 5). It will be extended to recover wages that became due to Jenny within 12 months from the date she filed her claim. As a result, an employment standards officer can issue an order to pay against Jenny’s employer for public holiday pay not only for Labour Day, Thanksgiving Day, Christmas Day, December 26 (Boxing Day) and New Year’s Day, but also for Canada Day, Victoria Day, Good Friday and Family Day.

Two-year Time Limit for Filing a Claim

Under the ESA, generally employees must file a claim within two years of the contravention in order for the claim to be investigated by an employment standards officer.

The above-mentioned six-month/12 months limitations on recovery apply only to an employee's ability to seek recovery of unpaid wages, including vacation pay, termination pay and severance pay. In the case of other violations, an employment standards officer is able to issue certain orders for up to two years after a violation has occurred. This two-year time limit applies where:

  • The employee believes an employer has violated a non-monetary section of the ESA for example, the employer did not give proper meal breaks, failed to provide wage statements;
    or
  • The employee is seeking compensation and/or reinstatement in cases where the ESA leaves of absence, lie detector or retail business employee provisions have been violated or where the employer has penalized or threatened to penalize an employee for exercising rights under the ESA. See “Reprisals” and “Reprisals by a Client of a Temporary Help Agency.”

Extending Time Limits:

Despite the limitations on recovery of wages and filing a claim, it may be possible to make a claim that would otherwise be outside the applicable time limit if:

  • an employee has been told by the employer that he or she does not have an an entitlement when the employer knew or could have taken steps to find out that the employee in fact does have an entitlement; and
  • the employer’s untrue statement was the cause of the employee’s delay in filing his or her claim.

Example

An employer tells John-Duncan, who is not at all familiar with the ESA, that no overtime is payable under the ESA to an employee in his circumstances, even though the employer knew or could have taken steps to find out that overtime pay in fact was payable in those circumstances. Because John-Duncan believes the employer, he does not file a claim for overtime pay. Later, after the time for filing a claim has passed, John-Duncan finds out from his friends that overtime pay was payable in his circumstances. In such a case, an employment standards officer might rule that the time limit that would otherwise not allow John-Duncan’s claim should be extended because the delay in filing the claim was caused by the untruthful statement of the employer about his ESA entitlements and because that was the cause of his not having filed her claim within the normal time limit.

Previous | Next

ISBN 978-1-4606-4790-5 (HTML)
ISBN 978-1-4606-4791-2 (PDF)