Employment Standards Improvement Act, 1996
EXPLANATORY NOTE
Amendments to the Employment Standards Act relate primarily to the enforcement and administration of the Act. Amendments are also made to employees' entitlements under the Act. The major changes made in the Bill are as follows:
Entitlements of employees:
Employment standards set out in the current Act are "minimum standards" that cannot be waived. Under the Bill, special provision is made in the case of certain types of benefits provided under collective agreements. (Sections 3 and 4 of the Bill, section 4 of the Act)
An employee's entitlement to a vacation and to vacation pay is clarified. It is to be based upon 12 months of employment, whether or not the employment is active. (Section 8 of the Bill, section 28 of the Act)
Under the current Act, an employee's pregnancy leave or parental leave is included when determining his or her seniority. Under the Bill, it will also be included when determining the employee's length of employment and length of service. (Section 12 of the Bill, section 42 of the Act)
Limitation periods:
Under the current Act, proceedings and prosecutions must be commenced within two years after the facts upon which the proceeding or prosecution is based first come to the knowledge of the Director. The Bill sets out certain exceptions to the limitation period. An employment standards officer may amend or rescind an order after the two-year period expires, on the consent of the affected persons. Consequential changes are made. (Section 32 of the Bill, sections 82 to 82.3 of the Act)
A request for a review of an employment standards officer's order, or of a refusal to issue an order, must be made within 45 days after the order or refusal. Certain exceptions are set out. Under the current Act, the request must be made within 15 days. (Sections 23 and 24 of the Bill, sections 67 and 68 of the Act)
Restrictions on the recovery of money:
Under the current Act, there is a limitation on the recovery of money in a proceeding or prosecution under the Act. The Bill provides that money cannot be recovered if it became owing to an employee more than six months before the facts upon which the proceeding or prosecution is based first came to the knowledge of the Director (instead of the two years permitted under the current Act). The Bill also provides for certain exceptions. (Section 32 of the Bill, section 82.4 of the Act)
An employment standards officer cannot make an order for an amount greater than the maximum amount specified in the Act or less than the minimum amount prescribed in the regulations. Certain exceptions are set out. (Subsection 22 (1) of the Bill, subsections 65 (1.3) to (1.6) of the Act)
Methods of enforcement:
An employee who files a complaint under the Act is not entitled to bring a civil action for the same matter. Certain exceptions are set out. (Section 19 of the Bill, section 64.3 of the Act)
An employee who commences a civil action respecting specified matters is not entitled to file a complaint under the Act for the same matter. (Section 19 of the Bill, section 64.4 of the Act)
An employee to whom a collective agreement applies is not entitled to file a complaint under the Act. Certain exceptions are set out. The Act is enforceable under the collective agreement as if it formed part of that agreement. (Section 20 of the Bill, section 64.5 of the Act)
The authority of employment standards officers to settle complaints filed under the Act is changed. An employment standards officer will be able to settle a complaint without making a prior finding that wages are owing to an employee. The settlements are binding upon the parties. Consequential changes are made. (Section 22 of the Bill, section 65.1 of the Act)
Powers of debt collectors:
When the Director authorizes a private debt collector to collect money owing under the Act, the Director may authorize the collector to exercise specified powers under the Act. The collector's fee and disbursements may be added to the amount collected, if the Director authorizes it. One exception is provided. (Section 28 of the Bill, section 73.0.2 of the Act)
A collector may enter into settlement agreements on behalf of the person owed money under the Act, with the person's consent. Insome circumstances, the consent of the Director to a settlement is required. (Section 28 of the Bill, section 73.0.3 of the Act)
Administration:
Complaints under the Act must be filed in a written or electronic form approved by the Director. Under the current Act, no reference is made to filing complaints in an electronic form. (Section 18 of the Bill, section 64.1.1 of the Act)
Employment standards officers may obtain copies of documents kept in electronic form. The current Act does not refer to documents kept in electronic form. Consequential changes are made. (Subsection 17 (1) of the Bill, subsection 63 (1) of the Act)
Documents that, under the Act, must be served by mail may be served by any method of mail that permits the delivery to be verified or by fax. The current Act requires service to be made by registered mail. Consequential changes are made. (Section 30 of the Bill, section 75.1 of the Act)
Bill1996
An Act to improve the Employment Standards Act
Her Majesty, by and with the advice and consent of the Legislative Assembly of the Province of Ontario, enacts as follows:
1. Section 1 of the Employment Standards Act, as amended by the Statutes of Ontario, 1993, chapter 38, section 64, is further amended by adding the following definition:
"contract of employment" includes a collective agreement. ("contrat de travail")
2. Section 3 of the Act is amended by adding the following subsections:
Exception
(2) A person who receives a benefit under a compromise or settlement described in subsection 65.1 (1) or section 73.0.3 is bound by it if the person required to give the benefit under the compromise or settlement does so.
Same
(3) A compromise or settlement is not binding if it is entered into as a result of fraud or coercion.
3. Subsection 4 (2) of the Act is repealed and the following substituted:
Greater benefit to prevail
(2) The following provisions prevail over an employment standard if the provision confers a greater right upon an employee than is conferred by the employment standard:
1. A provision of another Act.
2. A provision of a schedule, order or regulation made under another Act.
3. A provision of a contract of employment, whether oral or written, express or implied.
Same, collective agreements
(3) A collective agreement prevails over section 58 and Parts IV, VI, VII and VIII of the Act if the collective agreement confers greater rights relating to hours of work, overtime pay, public holidays, vacation with pay and severance pay than the Act confers, when those matters are assessed together.
4. Section 5 of the Act is repealed.
5. Subsections 7 (4), (5) and (6) of the Act are repealed and the following substituted:
Payment on termination
(4) If an employee is entitled to a payment upon termination of employment, the employer shall make the payment to the employee not later than seven days after the termination.
6. The French version of subsection 24 (1) of the Act is amended by striking out "une rétribution équivalente à" in the sixth and seventh lines and substituting "un salaire pour temps supplémentaire équivalent à au moins".
7. The French version of subsection 26 (2) of the Act is amended by striking out "salaire pour heures supplémentaires" in the fourth line and substituting "salaire pour temps supplémentaire".
8. Section 28 of the Act, as amended by the Statutes of Ontario, 1993, chapter 27, Schedule, is repealed and the following substituted:
Vacations
28. (1) Every employer shall give a vacation of at least two weeks to each employee upon the completion of each 12 months of employment, whether or not the employment was active employment.
Vacation pay
(2) An employer shall pay vacation pay to an employee entitled to a vacation under subsection (1).
Same
(3) The vacation pay must be not less than 4 per cent of the wages (excluding vacation pay) earned by the employee during the 12 months for which the vacation is given.
9. In the French version of section 34 of the Act, the definition of "parent" is amended,
(a) by striking out "parent" in the first line and substituting "père ou mère"; and
(b) by striking out "le parent" in the fourth and fifth lines and substituting "le père ou la mère".
10. (1) The French version of subsection 38 (1) of the Act, as amended by the Statutes of Ontario, 1993, chapter 27, Schedule, is further amended,
(a) by striking out "le parent" in the third line and substituting "le père ou la mère"; and
(b) by striking out "d'un parent" in the second and third lines of clause (1) (b) and substituting "du père ou de la mère".
(2) The French version of subsection 38 (2) of the Act is amended by striking out "d'un parent" in the fourth and fifth lines and substituting "du père ou de la mère".
(3) The French version of subsection 38 (3) of the Act is amended by striking out "d'un parent" in the fifth line and substituting "du père ou de la mère".
11. The French version of subsection 39 (1) of the Act is amended,
(a) by striking out "le parent" in the second line and substituting "le père ou la mère"; and
(b) by striking out "d'un parent" in the fifth line and substituting "du père ou de la mère".
12. Subsection 42 (4) of the Act is repealed and the following substituted:
Length of employment
(4) The period of an employee's pregnancy leave or parental leave is included in any calculation of his or her length of employment (whether or not it is active employment), length of service (whether or not it is active service) or seniority, for the purpose of determining whether he or she has a right under a contract of employment.
Exception
(5) The period of an employee's pregnancy leave or parental leave is not included when determining whether the employee has completed any probationary period of employment.
13. The French version of clause 58 (7) (b) of the Act is amended by striking out "de l'ancienneté" at the end and substituting "des états de service".
14. Subsection 58.7 (1) of the Act, as enacted by the Statutes of Ontario, 1991, chapter 16, section 5, is repealed and the following substituted:
Settlement of wages
(1) An employee who has entered into a compromise or settlement described in subsection 65.1 (1) or section 73.0.3 and who has received the benefit agreed upon is not eligible for compensation from the Program for the wages that were the subject of the compromise or settlement.
15. Subsection 58.25 (1) of the Act, as enacted by the Statutes of Ontario, 1991, chapter 16, section 6, is repealed and the following substituted:
Conflict in limitation periods
(1) A limitation period set out in section 82 or 82.1 prevails over a limitation period in any other Act, unless the other Act states that it is to prevail over this Act.
16. Subsection 58.26 (1) of the Act, as enacted by the Statutes of Ontario, 1991, chapter 16, section 6, is repealed and the following substituted:
Manner of service
(1) A director may be served by mail addressed to his or her last known address or may be served personally.
17. (1) Subsection 63 (1) of the Act is amended by adding the following clauses:
(c.1) in the case of a book, record or document kept in electronic form, require the person who produces or furnishes it to give a copy of it on paper to the officer;
(c.2) in the case of a book, record or document kept in electronic form, require the person who produces or furnishes it to copy it to a machine-readable medium provided by the officer or, if the person prefers, to a machine-readable medium provided by the person.
(2) Subsection 63 (4) of the Act is repealed and the following substituted:
Production of documents
(4) No employment standards officer shall be compelled in a civil suit or proceeding to produce anything he or she has obtained, received or made under the Act except for the purposes of carrying out his or her duties under the Act.
18. The Act is amended by adding the following section:
Form for complaints
64.1.1 (1) A complaint filed under the Act must be in a written or electronic form approved by the Director.
Effect of non-compliance
(2) A complaint that does not comply with subsection (1) shall be deemed not to have been filed.
19. The Act is amended by adding the following sections:
Civil action not permitted
64.3 (1) Subject to subsection (4), an employee who files a complaint under the Act in respect of any of the following matters is not entitled to commence a civil action seeking a remedy for the same matter:
1. Wages owing to the employee.
2. A failure to comply with section 13.1.
3. A failure to comply with a provision of Part X.
Same, wrongful dismissal
(2) Subject to subsection (4), an employee is not entitled to commence a civil action for wrongful dismissal if he or she files a complaint alleging an entitlement to termination pay or severance pay relating to the same termination of employment.
Same, excess amount
(3) The employee is not entitled to commence a civil action in the circumstances described in subsection (1) or (2) even if the amount owing to the employee is greater than the amount for which an order can be made under the Act.
Effect of withdrawing complaint
(4) An employee is entitled to commence a civil action respecting a matter described in subsection (1) or (2) if the employee withdraws his or her complaint under the Act within two weeks after it is filed.
Non-application
(5) This section does not apply with respect to complaints that are filed before this section comes into force.
Enforcement where civil action commenced
64.4 (1) An employee who commences a civil action seeking a remedy for any of the following matters is not entitled to file a complaint under the Act for the same matter:
1. Wages owing to the employee.
2. A failure to comply with section 13.1.
3. A failure to comply with a provision of Part X.
Same, wrongful dismissal
(2) An employee who commences a civil action for wrongful dismissal is not entitled to file a complaint under the Act alleging an entitlement to termination pay or severance pay relating to the same termination of employment.
Non-application
(3) This section does not apply with respect to civil actions commenced before this section comes into force.
20. The Act is amended by adding the following section:
Enforcement where collective agreement
64.5 (1) If an employer enters into a collective agreement, the Act is enforceable against the employer with respect to the following matters as if it were part of the collective agreement:
1. A contravention of or failure to comply with the Act that occurs when the collective agreement is in force.
2. A contravention of or failure to comply with the Act that occurs while the operation of the collective agreement is continued as described in subsection 58 (2) of the Labour Relations Act, 1995.
3. A contravention of or failure to comply with the Act that occurs during the period described in subsection 86 (1) of the Labour Relations Act, 1995 during which the employer and the trade union are prohibited from changing terms and conditions of employment without each other's consent.
Complaint not permitted
(2) An employee to whom a collective agreement applies (including an employee who is not a member of the trade union) is not entitled to file or maintain a complaint under the Act.
Exception
(3) Despite subsection (2), the Director may permit an employee to file or maintain a complaint under the Act if the Director considers it appropriate in the circumstances.
Employee bound
(4) An employee to whom a collective agreement applies (including an employee who is not a member of the trade union) is bound by a decision of the trade union with respect to the enforcement of the Act under the collective agreement, including a decision not to seek the enforcement of the Act.
Same
(5) Subsection (4) does not prevent an employee from making a complaint to the Ontario Labour Relations Board that a decision of the trade union with respect to the enforcement of this Act contravenes section 74 of the Labour Relations Act, 1995.
Powers of arbitrator
(6) An arbitrator or board of arbitration appointed under acollective agreement may, in his, her or its decision, make any order that an employment standards officer, an adjudicator or a referee can make under the Act.
Same
(7) An order authorized by subsection (6) may be made for an amount greater than is permitted under subsection 65 (1.3) or less than is permitted under subsection 65 (1.5).
Exception
(8) An order authorized by subsection (6) must not require that payment be made to the Director in trust.
Notice to Director
(9) The arbitrator or board of arbitration shall give a copy of his, her or its decision to the Director.
Status of order
(10) An order authorized by subsection (6) shall be deemed to have been made by an employment standards officer for the purposes of Part XIV.1.
Non-application
(11) This section does not apply with respect to a complaint relating to a contravention of the Act or a failure to comply with the Act that occurs before the day on which section 20 of the Employment Standards Improvement Act, 1996 comes into force.
21. (1) Subsection 65 (1) of the Act, as amended by the Statutes of Ontario, 1991, chapter 16, section 9, and subsection 65 (1.1) of the Act, as enacted by the Statutes of Ontario, 1991, chapter 16, section 9, are repealed and the following substituted:
Powers when wages owing
(1) This section applies if an employment standards officer finds that an employee is entitled to wages from an employer.
Direct payment
(1.1) The employment standards officer may arrange with the employer that the employer pay the wages owing to the employee directly to the employee.
Order
(1.2) The employment standards officer may order the employer,
(a) to pay the wages owing to the employee to the Director in trust; and
(b) to pay an amount equal to the greater of $100 or 10 per cent of the wages to the Director for administrativecosts.
Maximum amount
(1.3) The employment standards officer shall not make an order for an amount of wages greater than $10,000 in respect of one employee.
Exception
(1.4) Subsection (1.3) does not apply with respect to the following:
1. An order, or part of an order, relating to a failure to comply with a provision of Part XI, a contravention of Part XII, a failure to comply with section 50.1 or a contravention of section 50.3 or 56.1.
2. An order, or part of an order, to pay termination pay or severance pay in connection with a contravention of or failure to comply with a provision described in paragraph 1.
Minimum amount
(1.5) The employment standards officer shall not make an order for an amount of wages in respect of one employee that is less than such amount as may be prescribed.
Same
(1.6) Subsection (1.5) does not apply in the case of an order respecting more than one employee,
(a) if the total amount of wages payable under the order is greater than the amount prescribed under subsection (1.5); and
(b) if the wages become due to each employee by virtue of the same provision of the Act or the same provision of the employment contract.
Non-application
(1.7) Subsections (1.2) to (1.6) do not apply with respect to wages that become due to the employee before the day on which subsection 21 (1) of the Employment Standards Improvement Act, 1996 comes into force.
(2) Subsection 65 (2) of the Act is amended by striking out "Where an employment standards officer issues an order under subsection (1)" in the first and second lines.
(3) Subsection 65 (3) of the Act is amended by striking out "An order issued under subsection (1)" in the first line and substituting "The order".
(4) Subsections 65 (4) and (5) of the Act are repealed and the following substituted:
Service of order
(4) The order must be served upon the employer either by mail addressed to the employer's last known address or,
(a) if the employer is an individual, personally upon him or her; and
(b) if the employer is a corporation, personally upon an officer of the corporation or a person in charge of any branch of the corporation.
Proof of service
(5) A certificate of the Director is evidence of the issuance, service and receipt of an order if, in the certificate, the Director certifies that the order was served and states the method of service used and if the certificate has a true copy of the order attached to it.
22. The Act is amended by adding the following section:
Payment following settlement
65.1 (1) If a person agrees to a compromise or settlement respecting money owed to him or her under the Act, an employment standards officer may accept money on the person's behalf that is paid as a result of the compromise or settlement.
Failure to pay
(2) An employment standards officer may make an order under subsection 65 (1.2) if an employee agrees to a compromise or settlement relating to wages owed to him or her and,
(a) the employer does not pay the amount agreed upon; or
(b) the employee demonstrates that the compromise or settlement was entered into as a result of the employer's fraud or coercion.
23. (1) Subsection 67 (1) of the Act, as amended by the Statutes of Ontario, 1991, chapter 16, section 10, is further amended by striking out "Where, following a complaint in writing by an employee" in the first and second lines and substituting "If, after an employee files a complaint".
(2) Subsection 67 (2) of the Act, as re-enacted by the Statutes of Ontario, 1991, chapter 16, section 10, is repealed and the following substituted:
Deemed refusal to issue order
(2) An employment standards officer shall be deemed to have refused to issue an order to the employer if a proceeding is not otherwise commenced within two years after the facts upon which the deemed refusal is based first come to the knowledge of the Director. The refusal shall be deemed to have occurred on the day before the two-year period expires.
Review of refusal to issue order
(2.1) An employee who considers himself or herself aggrieved by the refusal to issue an order to an employer or by the issuance of an order that in the employee's view does not include all the wages or other entitlements to which he or she is entitled may apply to the Director for a review of the refusal or of the amount of the order.
Time for applying
(2.2) An application for review must be made in writing within 45 days after the date on which the letter mentioned in subsection (1) is mailed, the date on which the refusal under subsection (2) is deemed to have occurred or the date on which the order is issued, as the case may be.
Extension of time for applying
(2.3) The Director may extend the time for applying for a review if the Director is of the opinion,
(a) that a denial of natural justice has occurred; or
(b) that it is appropriate to do so because of another proceeding which is in progress or is likely to be when the time for applying expires.
24. (1) Subsection 68 (1) of the Act, as amended by the Statutes of Ontario, 1991, chapter 5, section 16, 1991, chapter 16, section 11 and 1993, chapter 27, Schedule, is repealed and the following substituted:
Review of order
(1) A person who considers himself, herself or itself aggrieved by an order made under subsection 13.1 (14) or section 45, 48, 51, 56.2, 58.22 or 65 may apply for a review of the order by way of a hearing. An employer is entitled to apply upon paying the wages and administrative costs required by the order.
(2) Section 68 of the Act, as amended by the Statutes of Ontario, 1991, chapter 5, section 16, 1991, chapter 16, section 11 and 1993, chapter 27, Schedule, is further amended by adding the following subsections:
Time for applying
(2.1) An application for review must be made within 45 days after the date of delivery or service of the order.
Extension of time for applying
(2.2) The Director may extend the time for applying for a review if the Director has not paid the compensation or wages under subsection 72 (2) and if the Director is of the opinion,
(a) that a denial of natural justice has occurred; or
(b) that it is appropriate to do so because of another proceeding which is in progress or is likely to be when the time for applying expires.
25. Subsection 71 (1) of the Act, as re-enacted by the Statutes of Ontario, 1991, chapter 16, section 13, is repealed and the following substituted:
Payment to Director
(1) If the Director believes or suspects that a person is or may become liable to make a payment,
(a) to an employer who is liable to make a payment under the Act; or
(b) to a director who is liable to make a payment under the Act,
the Director may demand that the person pay all or part of the money otherwise payable to the employer or the director, as the case may be, to the Director in trust on account of liability under the Act.
Notice
(1.1) The Director shall serve notice of the demand by mail or personally upon the person required to make the payment to the Director.
26. (1) Subsection 72 (2) of the Act, as amended by the Statutes of Ontario, 1991, chapter 5, section 17, is further amended by striking out "within a period of fifteen days from" in the sixth line and substituting "within 45 days after".
(2) Subsection 72 (4) of the Act is amended by striking out "including any penalty" in the fifth and sixth lines and substituting "including any payment for administrative costs".
27. Subsection 73 (2) of the Act, as re-enacted by the Statutes of Ontario, 1991, chapter 16, section 14, is repealed and the following substituted:
Copy of certificate
(2) The Director shall serve upon the employer or the director, as the case may be, a copy of the certificate and shall advise the employer or the director of the date on which the certificate was filed.
28. The Act is amended by adding the following sections:
Collector
73.0.1 In sections 73.0.2 and 73.0.3,
"collector" means a person (other than an employment standards officer) who is authorized by the Director to collect amounts owing under the Act.
Powers of collectors
73.0.2 (1) A collector may exercise such of the following powers as the Director may specify for the purpose of collecting amounts owing under the Act:
1. The powers of the Director under sections 71, 73 and 73.1 and subsections 78 (2) and (3) and 79 (3).
2. The powers of the administrator of the Employee Wage Protection Program under sections 58.14 and 58.15.
3. The powers of an adjudicator or referee under section 19 of the Statutory Powers Procedure Act.
Costs of collection
(2) The Director may authorize the collector to collect a reasonable fee or reasonable disbursements or both from each person from whom the collector seeks to collect amounts owing under the Act. The Director may impose conditions on the authorization and may determine what constitutes a reasonable fee and reasonable disbursements.
Exception
(3) The Director shall not authorize a collector required to be registered under the Collection Agencies Act to collect disbursements.
Non-application
(4) Clauses 22 (a) and (c) of the Collection Agencies Act do not apply with respect to fees authorized under subsection (2).
Effect on order
(5) The fee and disbursements authorized under subsection (2) shall be deemed to form part of the order, if there is an order.
Distribution of money
(6) The collector shall distribute the money collected as follows:
1. Money that is attributable to wages, compensation, amounts unpaid in respect of a person or money owing to a person under the Act is to be paid to the Director in trust or, with the written consent of the Director, to the person to whom the money is owed.
2. The applicable administrative fee, if any, is to be paid to the Director.
3. The amount attributable to the fee and disbursements authorized under subsection (2) is to be kept by the collector.
Apportionment of money collected
(7) If the money collected is less than the total owing to all persons including the Director and the collector, the money shall be apportioned among them in the prescribed manner.
Reciprocal enforcement
(8) For the purposes of this section, an amount owing under an order made by a state referred to in subsection 73.1 (2) shall be deemed to be an amount owing under the Act.
Settlement, etc., by collector
73.0.3 (1) A collector may agree to a compromise or settlement with the person who owes the money under the Act if the person to whom the money is owed agrees in writing to the compromise or settlement.
Restriction
(2) The collector shall not agree to a compromise or settlement of an amount owed under the Act if the person to whom the money is owed would receive less than 75 per cent (or such other percentage as may be prescribed) of the money to which he or she is entitled, unless the Director approves the compromise or settlement in writing.
Payment
(3) The person who owes the money shall pay the amount agreed upon in the compromise or settlement to the collector.
Void order
(4) The order, if any, to which a compromise or settlement relates is void when the amount agreed upon in the compromise or settlement is paid.
29. (1) Subsection 74 (1) of the Act is repealed and thefollowing substituted:
Demand for information
(1) The Director may require an employer to produce books, papers, records or documents for inspection, audit or examination for any purpose related to the administration or enforcement of the Act and regulations.
Notice
(1.1) The Director shall notify the employer which books, papers, records and documents are to be produced and may stipulate the time within which and the place at which they are to be produced.
Service of notice
(1.2) The Director shall serve the notice upon the employer by mail addressed to the employer's last known address or,
(a) if the employer is an individual, personally upon him or her; and
(b) if the employer is a corporation, personally upon an officer of the corporation or a person in charge of any branch of the corporation.
(2) Subsection 74 (2) of the Act is amended by striking out "the letter or demand" in the third and fourth lines and substituting "the notice".
(3) Subsection 74 (3) of the Act is repealed and the following substituted:
Proof of service
(3) A certificate of the Director is evidence of the service and receipt of the notice if, in the certificate, the Director certifies that the notice was served and states the method of service used and if the certificate has a true copy of the notice attached to it.
30. The Act is amended by adding the following section:
Service by mail
75.1 If the Act requires or permits the service of a document by mail, the document may be served,
(a) using any method of mail delivery that permits the delivery to be verified; or
(b) by telephone transmission of a facsimile of the document, if the recipient is equipped to receive such transmissions.
31. Section 80 of the Act is amended by adding the following subsections:
Same, collectors
(3) In any proceeding or prosecution, a certificate purporting to be signed by the Director certifying any of the following facts is evidence of the fact without further proof:
1. The Director has authorized a collector to collect amounts owing under the Act.
2. The Director has authorized the collector to collect a reasonable fee or reasonable disbursements or both under subsection 73.0.2 (2).
3. The Director has, or has not, imposed conditions on the authorization and has, or has not, determined what constitutes a reasonable fee and reasonable disbursements. The certificate may set out the details of the conditions and of the fee and disbursements.
4. The Director has approved a compromise or settlement under subsection 73.0.3 (2) or (3).
Same, Director's knowledge
(4) In any proceeding or prosecution, a certificate purporting to be signed by the Director certifying the date on which the facts upon which the proceeding or prosecution is based first came to his or her knowledge is evidence of the contents of the certificate without further proof.
32. Section 82 of the Act is repealed and the following substituted:
Limitation, prosecutions
82. No prosecution under the Act shall be commenced more than two years after the facts upon which the prosecution is based first come to the knowledge of the Director.
Limitation, proceedings
82.1 (1) No proceeding under the Act shall be commenced more than two years after the facts upon which the proceeding is based first come to the knowledge of the Director.
Commencement of proceedings
(2) A proceeding is commenced when a referee is appointed under section 69, when an employment standards officer issues an order, when an employment standards officer notifies an affected person that the officer refuses to issue an order or when an employment standards officer is deemed to have done so under subsection 67 (2).
No proceeding
(3) No proceeding is commenced when a complaint is filed under the Act, when an application is made for a review of an order or when an application is made for a review of a refusal to issue an order.
Non-application
(4) Subsection (1) does not apply with respect to a civil action or an arbitration under a collective agreement.
Restriction on amendment or rescission
82.2 (1) An employment standards officer shall not amend or rescind his or her order more than two years after the facts upon which the order is based first come to the knowledge of the Director.
Exception
(2) An employment standards officer may amend or rescind an order after the two-year period expires with the consent of the person required to comply with it and the person in respect of whom it is issued.
Restriction on recovery of money
82.3 (1) In a prosecution or proceeding under the Act, no person is entitled to recover money that became due to the person more than six months before the date on which the facts upon which the prosecution or proceeding is based first come to the knowledge of the Director.
Exception
(2) Despite subsection (1), if a person's entitlement under the Act comes to the knowledge of an employment standards officer when he or she is investigating the complaint of another person, the first person is entitled to recover money that became due to the first person not more than six months before the date on which the second person's complaint is filed.
Same
(3) In a prosecution for a failure to pay wages to the Director in trust as required by an order, the person is entitled to recover all money due under the order despite subsection (1).
Same
(4) A person may recover money that became due before the date determined under subsection (1),
(a) if the money became due to the person not more than one year before that date;
(b) if, in the same prosecution or proceeding, the person is entitled to recover money that became due not morethan six months before that date; and
(c) if the money referred to in clauses (a) and (b) became due to the person by virtue of the same provision of the Act or the same provision of the contract of employment.
Deeming
(5) For the purposes of this section, money shall be deemed to have become due on the following date:
1. In the case of a failure to pay termination pay to the Director under subsection 57 (21), the date on which, had the required payment been made, the employee would have been deemed under clause 57 (21) (b) to have abandoned the right to be recalled.
2. In the case of a failure to pay severance pay to the Director under subsection 58 (12), the date on which, had the required payment been made, the employee would have been deemed under clause 58 (12) (b) to have abandoned the right to be recalled.
Transition
(6) If the facts upon which a proceeding or prosecution is based first come to the knowledge of the Director within 60 days after the day on which this section comes into force, the person may recover money that became due more than six months before the date determined under subsection (1) or (2),
(a) if the money became due to the person not more than two years before the date determined under subsection (1) or (2); and
(b) if it became due before the day on which this section comes into force.
Knowledge of the Director
82.4 (1) The facts upon which a proceeding or prosecution is based shall be deemed to have first come to the knowledge of the Director on the following date in the following circumstances:
1. In the case of an employee who files a complaint under the Act, the date on which the Ministry receives the complaint in a written or electronic form approved by the Director.
2. In the case of an employee whose entitlement under the Act comes to the knowledge of an employment standards officer when he or she is investigating the complaint of another employee, the date on which the employee'sentitlement comes to the officer's attention.
3. In the case of a failure to pay wages to the Director in trust as required by an order, the date that is 46 days after the order is delivered to the person required to pay or is served on the person.
Same
(2) Paragraph 1 of subsection (1) does not apply if an employee's entitlement comes to the knowledge of an employment standards officer when the officer is investigating the complaint of another employee.
33. Section 83 of the Act is repealed.
34. The French version of paragraph 17 of subsection 84 (1) of the Act is amended by striking out "salaire pour heures supplémentaires" in the sixth and seventh lines and substituting "salaire pour temps supplémentaire".
Commencement
35. This Act comes into force on a day to be named by proclamation of the Lieutenant Governor.
Short title
36. The short title of this Act is the Employment Standards Improvement Act, 1996.