General Employment-Related Legislation Applicable to the Crown

• Author: Timothy Hadwen - David Strang - Leonard Marvy - Don Eady
• Profession: Director, Legal Services Branch, Ontario Ministry of Labour - Associate Director, Management Board Secretariat - Solicitor, Ontario Labour Relations Board - Partner, Paliare Roland Rosenberg Rothstein LLP
• Pages: 326-397

 

General Employment-Related

Legislation Applicable to the Crown

e OntarioEmployment Standards Act,Freedom of Infor mation and Protection

of Privacy Act (FIPPA), Human Rights Code (HRC), Occupational Health and

Safety Act,Pay Equity Act,Pension Benets Act, and Workers’ Safety and Insur-

ance Act, as well as the federa l employment insuranc e and Canada Pension Plan

legislation, a re the main employment-related statutes of gener al application that

apply to the Crown in Right of Ontario. is chapter deals with two aspects of

this legislation: () the extent of the application of these statutes to the Crown;

and () any unique treatment of the Crown under that leg islation.

Concerning the application of Ontario legislation to the Crown, the start-

ing point is that it does not apply. Section  of theInterpretation Act provides

that “No Act aects t he rights of Her Majesty, her heirs or successors, unles s it is

expressly stated therein t hat Her Majesty is bound thereby.” Five major pieces of

legislation , FIPPA, the Human Rights Code,Occupational Health and Safety Act,

Pay Equity Act, and the Workers’ Safety and Insurance Act, are stated to apply

fully to t he Crown as they would to any other employer covered by the those acts

(al tho ugh FIPPA is only concerned with public institut ions in any event.)

Five other pieces of leg islation, the federal Employme nt Insurance Act (EIA)

and Canada Pension Plan Act, and the provincial Labour Relations Act,Em-

ployment Standards Act, and Pension Benets Act are applied to the Crown in

a modied or idiosyncratic fashion. e federal legislation applies dierently

for constitutional reasons. e modied applicability of the provincial Labour

Relations Act is explained by the Crown Employees Collective Bargaining Act

(CECBA). e special treatment of the Crown under the Employment Standards

Act is likely li nked to the existence of employment “standards” under the Public

R.S.O. , c. I-.

326

327Chapter : General Employ ment-Related Legislation

Service Act (PSA) regime. Public service pensions have had separate statutory

treatment since their i ntroduction.

is chapter gives special attention to the FIPPA treatment of labour rela-

tions and employment documents, the use of systemic remedies to uphold the

Human Rights Code (HRC), health and safety committees and the limited right

of certain occ upations to refuse unsafe work under the Occupational Health and

Safety Act(OHSA), and the two separate public s ervice pension plans.

A.EMPLOYM ENT INSUR ANCE/CANADA PENSION PLA N

Public servants and persons employed by an agency of the provincial govern-

ment are engaged in insurable employment for purposes of the federal Employ-

ment Insurance Act. As such, they are required to pay employment insurance

premiums and are entitled to benets in the event of unemployment. Persons

employed directly by the province outside the scope of the PSA, either under a

contract or under another st atute, are not engaged in insurable employment, are

not subject to the payment of premiums, and are not entitled to benets on ac-

count of their employment by the province.

Insurable employment is de ned in section () of the EIA to be employment

in Canada subject to the exclusions in section (). One of the excluded types of

employment is “employment in Canada by the Majesty in right of a province”

(which reects the constitutional impediment to the federal Crown regulating

the terms of employment by a provincial government). However, the EIA pro-

vides authority for the Employment Insurance Commission, with the approval

of the federal Cabinet, to ma ke regulations to include in insurable employment,

“employment in Canada by Her Majesty in right of a province if the govern-

ment of the province waives the exclusion and agrees to insu re all its employees

engaged in that employment.” e regulat ions to the EIA allow a provincia l gov-

ernment to waive exclusion and insure t heir employees. However, only employees

who are appointed and remunerated under an Act govern ing a specic province’s

public service, or who a re employed by a provincial agent, are t hereby included.

is maintai ns the exclusion of persons employed by the government outside the

public service leg islation. e Federal Court of Appe al has upheld this exclusion.

Given the express appointment provisions in t he Ontario PSA, it is clear that only

S.C. , c.  [EIA].

See Chapter  at .

Employment Insurance Regulations, approved SOR/-, P.C. -, June , ,

s. .

Meherally v. Canada (Minist er of National Revenue), [] F.C.J. No. ,  N.R. ,

 D.L.R. (th)  (C.A.); Bergeron v. Canada (M.N.R.), [] F.C.J. No.  (C.A.); See

also Lybbert v. Canada (M.N. R.), [] T.C.J. No.  (T.D.).

328       

Ontario government employees that are expressly appointed under the PSA fall

within t he scope of the EIA.

e employment of emergency sta under the authority of t he Ontario Forest

Fires Preventi on Act has been found to be excluded employment by the Canada

Customs and Revenue Agency, though the basis of the decision was not made

clear. Employment under the Forest Fi res Prevention Act is not employment un-

der the PSA and that would ex plain the result. Persons who are employed to abate

a disaster are in excluded employment. Ontario has not taken advantage of the

federal government’s oer (made in correspondence between Flora MacDonald,

a federal minister, to Greg Sorbara , a provincial minister, in August ) to allow

it, by Order-in-Council, to decla re such employees to be provincial employees.

e provincial government is, from time to time, required to take control

of a business in the public interest. Where that business retains its independent

status, or becomes a Crown agent, t he entity wi ll be subject to the EIA,and pre-

miums wil l be required. Where the government assumes d irect control of an op-

eration and employs the sta directly (for example, t he Ministry of Health may

take over direct operation of a health facility under the Health Facilities Special

Orders Act to prevent harm to a resident and may employ sta to accomplish this

goal), the resulting employ ment will be excluded employment unless t he sta are

expressly employed under the PSA. Where t he Ontario government uses a th ird

party to pay wages to pers ons not employed under the PSA, the deemed employer

provisions wi ll not apply to the third party.

All employment by the provincial government and its agencies, with the

exception of the employment of federally-appointed judges, is pensionable em-

ployment for purposes of the Canada Pension Plan. Pensionable employment is

dened in the Canada Pension Plan Act to include all employment in Canada

that is not “excepted” and all employment included by regulation. Employment

by a province is excepted employment, but may be included as pensionable em-

ployment by regulation wit h the agreement of the province. Employment by the

Province of Ontario and its a gents has been included by regulation, with the sole

exception of Ontario’s employment of federally-appointed judges. Subject to the

general exemptions in the Act (for example, certain casual employees), where

the government funds the retention of a person to perform work, the common

 R .S.O. , c. F..

 Administ rative Appeal, unrepor ted ref. CE  , June ,  .

 R.S.O. , c. H., s. .

 In surance Earnings and Collecti on of Premiums Regulation, SOR /-, P.C. –,

December , , s. .

 Family Service s London v. M.N.R., [] T.C.J. No.  (T.C.C.) at para. .

R.S.C. , c. C -, as amended, s. –.

 Canada Pension Plan Regulations, C.R.C. c .  s.  (Sch. III & IV).