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 Ontario Employment Standards Act,Freedom of Infor mation and Protection
of Privacy Act (FIPPA), Human Rights Code (HRC), O ccupational Health and
Safety Act,Pay Equity Act,Pension Benet s 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 Onta rio. is chapter deals w ith two aspects of
this legisl ation: () the extent of the application of thes e statutes to the Crown;
and () any unique treatment of the Crown under that leg islation.
Concerning the appl ication of Ontario legislat ion to the Crown, the sta rt-
ing point is that it does not apply. Section of the Interpretation Act provides
that “No Act aects 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 Pens ion Plan Act, and the provincia l Labour Relations Act,Em-
ployment Standards Act, and Pension Be nets Act are applied to the Crow n in
a modied or idiosy ncratic fashion. e federa l legislation applies d ierently
for constitutional reas ons. e modied applicabi lity of the provincia l Labour
Relations Act is expla ined by the Crown Employees Col lective Bargaining Act
(CECBA). e special treatment of the Crown under the Employment Standards
R.S.O. , c. I-.
326
327Chapter : General Employ ment-Related Legislation
Service Act (PSA) regime. Public service pensions have had separ ate statutory
treatment since their i ntroduction.
is chapter gives specia l attention to the FIPPA treatment of labour rela-
tions and employment docu ments, the use of sy stemic remedies to uphold t he
Human Rights Code (HRC), health and safety comm ittees and the lim ited right
of certain occ upations to refuse unsafe work under the Occupational Health and
A. EMPLOYM ENT INSUR ANCE/CANADA PENSION PLA N
Public serva nts and persons employed by an agency of the prov incial govern-
ment are engaged in insurable employment for pur poses of the federal Employ -
ment Ins urance Ac t. As such, they are requ ired to pay employment insurance
premiums and are entitled to benet s in the event of unemployment. Persons
employed directly by the prov ince outside the scope of the PSA, eit her 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 b enets 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 t he exclusions in section (). One of the excluded types of
employment is “employment in Canada by the Majesty i n right of a province”
(which reects the constitut ional impediment to t he federal Crown regul ating
the terms of employment by a provincial government). However, the EIA pro-
vides authority for the Employ ment Insurance Commi ssion, with the approval
of the federal Cabinet, to ma ke regulations to include in insurable employment,
“employment in Canada by Her Majesty in rig ht of a province if the govern-
ment of the province waives t he 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 specic 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 app ointed 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 deci sion 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. Onta rio has not taken advantage of t he
federal government’s oer (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, f rom time to time, requ ired to take control
of a business in the public interes t. Where that business ret ains 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 Minist ry of Health may
take over direct oper ation of a health facil ity under the Health Facilitie s 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 provincia l government and its agencies, wit h the
exception of the employment of federal ly-appointed judges, is pensionable em-
ployment for purpose s of the Canada Pension Pla n. Pensionable employment is
dened in the Canada Pen sion Plan Act to include all employment in Canad a
that is not “excepted” a nd all employment included by regu lation. 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 t he Act (for example, certai n casual employees), where
the government funds t he 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).
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