Bill 68 Update

We first reported on Ontario Bill 68, The Open for Business Act, 2010, in our Fall 2010 newsletter.

As of January 19th, 2011, amendments to the Employment Standards Act (ESA) pursuant to Bill 68 have changed the ESA claims process in Ontario. The amendments aim to encourage employers and employees to resolve ESA issues internally, and to promote early settlement. In addition to making changes to the ESA complaint procedure, Employment Standards Officers (ESO) have been provided with new powers.

Under the old complaints process, a complaint filed with the Director of Employment Standards was assigned to an ESO for investigation and decision. Now, when a complaint is assigned to an ESO, the employee is required to notify the employer that he or she believes that a right under the ESA is being (or has been) violated. The employee and employer are then encouraged to attempt to resolve the complaint internally.

Failing resolution of the complaint, the employee may file the complaint with the ESA Branch. He or she must demonstrate that the employer was notified of the complaint, explain what information was provided to the employer, and state the employer’s response. The employee must also complete a claims form in order to provide evidence supporting the allegations of the claim.

If an employee does not complete the steps required within six months of having filed the complaint, the Director of Employment Standards can either assign the file to an ESO, refuse to assign the file to an ESO, or an ESO can be deemed to have refused to issue an Order.

During the investigation process, or at any time before a decision is made by an ESO, the ESO may attempt to settle the complaint through mediation. This new power provides the parties with more opportunity to settle the complaint. Should a settlement be reached, the terms of settlement will be binding on the parties, and the complaint will be deemed to have been withdrawn, and the investigation terminated. Any proceeding, other than a prosecution, will also be terminated.

Under the old process, employers were not likely to be made aware of complaints brought by employees. The changes to the process thus make it more likely for an employer to become aware of a complaint, and be able to attempt to resolve it, before it reaches the ESA Branch.