The oddly named Open for Business Act 2010 received royal assent on October 21, 2010. The purpose of this Ontario statute, as its name implies, is to promote Ontario as being “open for business”. It amends and simplifies procedures within a number of government ministries, including the Ministry of Labour.
The Act seeks to improve the process of administrative investigation of Employment Standards complaints. It provides that no complaint by an employee is to be assigned to an Employment Standards Officer for investigation unless the complainant first takes the steps specified by the director. These steps may include notifying the employer of the reason for the complaint and whether the employee is alleging that wages are owed. The director can request any other information he or she considers necessary to facilitate the assessment of the merits of the complaint.
In keeping with the trend in the judicial system to encourage settlement, the Employment Standards Officer assigned to investigate the complaint is now specifically authorized to “attempt to effect a settlement”. When a settlement is reached in this manner, the investigation is terminated and the complaint is deemed to have been withdrawn. However, the Employment Standards Officer has no power to compel any party to an investigation to participate in such settlement discussions.
The new Act also gives the Employment Standards Officer new and expanded powers to reject or approve a complaint where one of the parties has failed to provide the information requested, or has failed to attend an investigation meeting.
In the event of litigation between the parties arising from the facts which led to the complaint, the Act provides that the Employment Standards Officer is not compellable witness in such an action. As well, the Act prohibits the Employment Standards Officer from disclosing any information obtained in the course of these discussions.
In light of the expanded powers of the Employment Standards Officer, employers subject to an investigation should seek counsel as soon as the process is initiated, in order to ensure that their interests are adequately protected, and the provisions of the statute are fairly enforced.
On November 29, 2010, the amendments to the Employment Standards Act in Schedule 9 of the Open for Business Act (Bill 68) were proclaimed to come into force on January 19, 2011. In the upcoming weeks, the Ontario Ministry of Labour will be providing tools and multilingual resources to help employees file a claim.
On January 19, 2011, a new process for filing Employment Standards claims will be in place. The ministry is creating a new “Claim Kit” for employees to use. For more information, go to the Ministry of Labour website.
Earl Altman
Garfinkle, Biderman LLP
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