General Employment-Related Legislation Applicable to the Crown

• Author: Timothy Hadwen/David Strang
• Pages: 278-422

278

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General Employment-Related

Legislation Applicable to the Crown

The Ontario Employment Standards Act, 2000 (ESA), Freedom of Infor-

mation and Protection of Privacy Act (FIPPA), Human Rights Code

(HRC), Occupational Health and Safety Act (OHSA), Pay Equity Act

(PEA), Pension Benef‌its Act (PBA), and Workplace Safety and Insurance

Act, 1997 (WSIA), as well as the federal employment insurance and

Canada Pension Plan legislation and the Canadian Charter of Rights

and Freedoms (the Charter), are the main employment-related statutes

of general application that apply to the Crown in Right of Ontario.1

This chapter deals with: (1)how these statutes apply to the Crown and

(2)the caselaw about their application in the Ontario public service. The

collective agreement provisions that closely relate to these statutes are

also discussed. Labour relations statutes are discussed in later chapters.

Concerning the application of Ontario legislation to the Crown,

the starting point is that it does not apply. The Legislation Act, 20062

provides that “No Act or regulation binds Her Majesty or aects Her

Majesty’s rights or prerogatives unless it expressly states an intention

to do so.” However, six Ontario employment-related statutes, the ESA,

1 Employment Standards Act, 2000, SO 2000, c 41 [ESA]; Freedom of Information

and Protection of Privacy Act, RSO 1990, c F.31 [FIPPA]; Human Rights Code,

RSO 1990, c H.19 [HRC]; Occupational Health and Safety Act, RSO 1990, c O.1

[OHSA]; Pay Equity Act, RSO 1990, c P.7 [PEA]; Pension Benef‌its Act, RSO 1990,

c P.8 [PBA]; Workplace Safety and Insurance Act, 1997, SO 1997, c 16, SchA,

[WSIA]; Canadian Charter of Rights and Freedoms, Part I of the Constitution

Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11 [Charter].

2 SO 2006 c 21 Sch F, s 71.

General Employment-Related Legislation Applicable to the Crown | 279

FIPPA, HRC, OHSA, PEA, and the WSIA, state they apply to or bind

the Crown3 (although FIPPA is only concerned with public institutions

in any event.)

Three other pieces of legislation, the provincial PBA, and the fed-

eral Employment Insurance Act (EIA)4 and Canada Pension Plan Act5

are applied to the Crown in a modif‌ied or idiosyncratic fashion. Pub-

lic service pensions have had separate statutory treatment since their

introduction.

There is a brief discussion of the Canadian residency requirement

in the Public Ocers Act.6

This chapter gives special attention to:

• the FIPPA treatment of labour relations and employment docu-

ments

• the upholding of the HRC through human rights complaints or

grievances, including systemic remedies

• the OHSA right to health and safety committees, the duty of the

employer to take “reasonable precautions,” the right to refuse

unsafe work, particularly as limited for certain occupations, and

the right to not be subject to harassment

• the unique arrangements for the two separate public service pen-

sion plans

The Grievance Settlement Board (GSB) and Public Service Griev-

ance Board (PSGB), like all employment arbitrators, have a general

obligation to apply employment-related statutes.7

A. EMPLOYMENT STANDARDS ACT

The Employment Standards Act, 2000 contains minimum employment

standards applicable to certain classes of employees in Ontario.

3 ESA, s 3.1; FIPPA, s 70; HRC, s 47; OHSA, s 2(1); PEA, s 38; WSIA s 67; all

above note 1.

4 SC 1996, c 23 [EIA].

5 RSC 1985, c C-8.

6 RSO 1990, c P.45.

7 For example, see the discussion in R v Ontario Public Service Employees Union

(Grievor), 2015 CanLII 19325 (ON GSB) (Briggs).

280 | ONTARIO PUBLIC SERVICE EMPLOYMENT AND LABOUR LAW

1) Application to the Crown

Some of the provisions in the ESA apply to the Crown and some do

not. This selective application is accomplished by use of the regulatory

authority in the ESA to exempt any class of employer from all or part of

the Act.8 Statutory language made signif‌icant parts of the ESA inapplic-

able to the Crown until 2017 when the statutory partial exemption was

ended and replaced with a virtually equivalent regulatory exemption by

a new government the following year.9 There has never been any justif‌i-

cation provided for the selective applicability of the ESA to the Crown.10

Further to the regulatory exemption power, only the following sub-

stantive provisions of the ESA apply to the Crown:11

• Continuity of Employment (Part IV)

• Records (Part VI)

• Minimum Wage (Part IX)

• Vacation with Pay (Part XI)

• Equal Pay for Equal Work (Part XII)

• Benef‌it Plans (Part XIII)

• Leaves of Absence (Part XIV)

• Termination and Severance of Employment (Part XV)

• Lie Detectors (Part XVI)

• Reprisal (Part XVII, except for section 74(1)(a)(vii) and section

74(1)(b))

• Building Services Providers (Part XIX)

General, non-substantive provisions also apply to the Crown.

The main provisions of the Act that are generally inapplicable to

the Crown (and Crown agencies, authorities, boards and commissions

8 ESA, above note 1, s 141(1)3.

9 The Fair Workplaces, Better Jobs Act, 2017, SO 2017, c 22, was preceded by the

government commissioned Changing Workplaces Review: Ontario Legislative

Assembly, Hansard, 12 September 2017, 1540 (Kevin Flynn, Minister of Labour).

The Review, s 9.2, recommended ending the partial exemption of the Crown,

without reasons other than noting there were no submissions supporting its

continuance.

10 A review of Hansard since the f‌irst ESA was debated in the legislature in 1968

records no comment on the degree of applicability of the Act to the Crown. The

ESA, SO 1968, c 35, s 19(5) made only the Equal Pay for Equal Work provisions

applicable to the Crown. The 1974 amending Act, SO 1974, c 112, added Benef‌it

Plans, Pregnancy Leave, and Termination of Employment to the list.

11 ESA, above note 1, Reg 285/01, s 2.1.