Part XXVII - Regulations | Employment Standards Act Policy and Interpretation Manual

Part XXVII - Regulations

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Statutes enacted by ��'s Legislature often delegate the authority to make further laws to the Lieutenant Governor in Council (in effect the Cabinet). These additional laws, referred to as regulations, may, among other things, establish exemptions from the statute, set out detailed rules to complement what is in the statute, vary the rules or create additional rules to what is in the statute, provide definitions, etc.

Part XXVII of the Employment Standards Act, 2000 contains s. 141, which sets out the type of regulations that the Legislature has authorized the Lieutenant Governor in Council to make. A number of regulations have been made using this authority. In interpreting these regulations, some general rules of interpretation should be remembered.

Firstly, the same rules of interpretation apply to regulations as to the statute itself.

Secondly, and probably most importantly, regulations are subordinate to the Employment Standards Act, 2000. If there is a conflict between a provision in the statute and a provision in a regulation, the statute prevails. (Note, however, that if the statute authorizes the making of regulations that create different rules than those set out in the Act, the regulation will, generally speaking, not be invalid.)

Thirdly, a regulation will not be considered to be valid, even if it is not in conflict with the Act if the Act does not authorize the making of the regulation.

Finally, it should be noted that the regulations made under the former Employment Standards Act, 2000 would continue to apply (where relevant), with respect to matters governed by the former Employment Standards Act, 2000.

Section 141 – Regulations

Regulations – section 141(1)

141(1) The Lieutenant Governor in Council may make regulations for carrying out the purposes of this Act and, without restricting the generality of the foregoing, may make the following regulations:

1. Prescribing anything for the purposes of any provision of this Act that makes reference to a thing that is prescribed.
1.1 Prescribing a method of payment for the purposes of clause 11 (2) (d) and establishing any terms, conditions or limitations on its use.
2. Establishing rules respecting the application of the minimum wage provisions of this Act and the regulations.
2.0.1 Prescribing a class of employees that would otherwise be in the class described in subparagraph 1 v of subsection 23.1 (1) and prescribing the minimum wage that applies to the class for the purposes of subsection 23.1 (2).
2.1 Establishing a maximum pay period, a maximum period within which payments made to an employee shall be reconciled with wages earned by the employee or both.
3. Exempting any class of employees or employers from the application of this Act or any Part, section or other provision of it.
4. Prescribing what constitutes the performance of work.
5. Prescribing what information concerning the terms of an employment contract should be provided to an employee in writing.
6. Defining an industry and prescribing for that industry one or more terms or conditions of employment that apply to employers and employees in the industry or one or more requirements or prohibitions that apply to employers and employees in the industry.
7. Providing that any term, condition, requirement or prohibition prescribed under paragraph 6 applies in place of or in addition to one or more provisions of this Act or the regulations.
8. Providing that a regulation made under paragraph 6 or 7 applies only in respect of workplaces in the defined industry that have characteristics specified in the regulation, including but not limited to characteristics related to location.
9. Providing that an agreement under subsection 17 (2) to work hours in excess of those referred to in clause 17 (1) (a) that was made at the time of the employee's hiring and that has been approved by the Director is, despite subsection 17 (6), irrevocable unless both the employer and the employee agree to its revocation.
10. Providing a formula for the determination of an employee's regular rate that applies instead of the formula that would otherwise be applicable under the definition of "regular rate" in section 1 in such circumstances as are set out in the regulation.
11. Providing for the establishment of committees to advise the Minister on any matters relating to the application or administration of this Act.
11.0.1 Providing for exemptions from Part XI.1, or any provision of it, including providing that employers are not required to have policies in respect of certain forms of electronic monitoring in the circumstances specified in the regulation.
11.0.2 Prescribing one or more terms or conditions of employment related to electronic monitoring that apply to employers who are subject to Part XI.1 and their employees or one or more requirements or prohibitions related to electronic monitoring that apply to those employers and their employees.
11.0.3 Prescribing that any term, condition, requirement or prohibition prescribed under paragraph 11.0.2 applies in place of or in addition to one or more provisions of this Act or the regulations.
11.1 Providing, for the purposes of subsection 51 (4), that subsections 51 (1), (2) and (3) apply in respect of an employee during a leave under section 50.2.
11.2 Providing, for the purposes of subsection 51 (5), that subsections 51 (1), (2) and (3) do not apply in respect of an employee during a period of postponement under subsection 53 (1.1).
12. Prescribing the manner and form in which notice of termination must or may be given and the content of such notice.
13. Prescribing what constitutes a constructive dismissal.
14. Providing that the common law doctrine of frustration does not apply to an employment contract and that an employer is not relieved of any obligation under Part XV because of the occurrence of an event that would frustrate an employment contract at common law except as prescribed.
14.1 Providing that payments to an employee by way of pension benefits, insurance benefits, workplace safety and insurance benefits, bonus, employment insurance benefits, supplementary employment insurance benefits or similar arrangements shall or shall not be taken into account in determining the amount that an employer is required to pay to an employee under clause 60 (1) (b), section 61 or section 64.
15. Providing for and governing the consolidation of hearings under this Act.
16. Prescribing the minimum number of hours in a day or week for which an employee is entitled to be paid the minimum wage or a contractual wage rate and imposing conditions in respect of that entitlement.
16.1 Governing penalties for contraventions for the purposes of subsection 113 (1).
17. Defining any word or expression used in this Act that is not defined in it.
18. Prescribing the manner in which the information required by subsection 58 (2) shall be given to the Director.
19. Respecting any matter necessary or advisable to carry out effectively the intent and purpose of this Act.

Restricted application – section 141(1.1)

Regulations re: Part XIII – section 141(2)

141(2) The Lieutenant Governor in Council may make regulations respecting any matter or thing necessary or advisable to carry out the intent and purpose of Part XIII (Benefit Plans), and without restricting the generality of the foregoing, may make regulations,

exempting a benefit plan, part of a benefit plan or the benefits under such a plan or part from the application of Part XIII;
permitting a differentiation in a benefit plan between employees or their beneficiaries, survivors or dependants because of the age, sex or marital status of the employees;
suspending the application of Part XIII to a benefit plan, part of a benefit plan or benefits under such a plan or part for the periods of time specified in the regulation;
prohibiting a reduction in benefits to an employee in order to comply with Part XIII;
providing the terms under which an employee may be entitled or disentitled to benefits under a benefit plan.

Regulations re: Organ donor leave – section 141(2.0.1)

Same – section 141(2.0.2)

Transitional regulations – section 141(2.0.3)

Same – section 141(2.0.3.1)

Same – section 141(2.0.3.2)

Transitional regulations – section 141(2.0.3.3)

Transitional Regulations – s. 141(2.0.3.4)

Transitional Regulations – s. 141(2.0.3.5)

Transitional Regulations – s. 141(2.0.3.6)

Conflict with transitional regulations – section 141(2.0.4)

Regulations re: Infectious Disease Emergencies – section 141(2.1)

141(2.1) The Lieutenant Governor in Council may make regulations,

(a) designating an infectious disease for the purposes of section 50.1;
(b) prescribing, for the purposes of subsection 50.1 (5.1), the date on which the entitlement to emergency leave under clause 50.1 (1.1) (b) starts or is deemed to have started;
(b.1) prescribing, for the purposes of subsection 50.1 (5.2), a later date on which the entitlement to paid leave under subsection 50.1 (1.2) ends;
(b.2) prescribing, for the purposes of subsection 50.1 (5.3), additional periods during which employees are entitled to paid leave under subsection 50.1 (1.2);
(c) providing that section 50.1 or any provision of it applies to police officers and prescribing one or more terms or conditions of employment or one or more requirements or prohibitions respecting emergency leave for infectious disease emergencies that shall apply to police officers and their employers;
(d) exempting a class of employees from the application of section 50.1 or any provision of it, and prescribing one or more terms or conditions of employment or one or more requirements or prohibitions respecting emergency leave for infectious disease emergencies that shall apply to employees in the class and their employers;
(d.1) exempting the Crown, a Crown agency, or an authority, board, commission or corporation, all of whose members are appointed by the Crown, from the application of section 50.1 or any provision of it;
(e) providing that a term, condition, requirement or prohibition prescribed under clause (c) or (d) applies in place of, or in addition to, a provision of section 50.1.

Same, Police Officers – section 141(2.1.1)

Regulations Re Emergency Leaves, Declared Emergencies, Infectious Disease Emergencies – section 141(2.2)

141(2.2) A regulation made under subsection (2.0.3.3), (2.0.3.4), (2.0.3.6) or (2.1), or a regulation prescribing a reason for the purposes of subclause 50.1 (1.1) (a) (iv) or (b) (vii) may,

provide that it has effect as of the date specified in the regulation;
provide that an employee who does not perform the duties of his or her position because of the declared emergency and the prescribed reason, or because of the prescribed reason related to a designated infectious disease, as defined in section 50.1, is deemed to have taken leave beginning on the first day the employee does not perform the duties of his or her position on or after the date specified in the regulation; or
provide that clauses 74 (1) (a) and 74.12 (1) (a) apply, with necessary modifications, in relation to the deemed leave described in clause (b).

Retroactive Regulation – section 141(2.2.1)

Regulation Extending Leave – section 141(2.3)

Same – section 141(2.4)

Regulations Re s. 50.1.1 – s. 141(2.5)

141(2.5) The Lieutenant Governor in Council may make regulations,

(a) prescribing the process for overpayment recovery under subsection 50.1.1 (18)
(b) prescribing the date by which the Board is required to repay the Ministry under subsection 50.1.1 (21)
(c) prescribing, for the purposes of subsection 50.1.1 (31), persons who may investigate possible contraventions of section 50.1.1
(d) prescribing the powers under this Act that a person prescribed under clause (c) may exercise;
(e) specifying the parts of this Act that apply, with necessary modifications, if a person prescribed under clause (c) investigates a possible contravention of section 50.1.1
(f) exempting the Crown, a Crown agency, or an authority, board, commission or corporation, all of whose members are appointed by the Crown, from the application of section 50.1.1 or any provision of it

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