Caller beware: Ministry helpline comes under fire

Misleading, incomplete advice on Ontario employment standards a common occurrence: Lawyer
By Liz Bernier
|Canadian HR Reporter|Last Updated: 11/03/2013

If you rely on the Ministry of Labour’s employment standards helpline for advice on Ontario-based employees, you may not be getting the full story. The helpline has come under scrutiny in recent weeks after becoming the target of a lawsuit for allegedly giving negligent advice to callers.

Employers that call in to the helpline are advised of the minimum requirements they must meet under the province’s Employment Standards Act — but there may be additional requirements under common law. And if employers rely on incomplete or bad advice, they could leave themselves open to legal action.

It’s a significant concern, especially for small businesses that may not have the resources for in-house legal counsel, according to Nicole Troster, senior policy analyst at the Ontario branch of the Canadian Federation of Independent Business (CFIB).

“It’s dangerous because you can have an employer who in good faith is going to the government who puts the policies in place, and asking them, ‘What are the requirements?’” she said. “The problem is, they’re told about employment standards which are minimum requirements but there are common law precedents which could entail additional requirements... so it can leave the employer in a very precarious situation.”

Employers that rely on advice that turns out to be incomplete or misleading may find themselves liable — even if they had good intentions.

“They’re going on what they’ve been told,” said Troster. “If you look at the types of resources that are available to employees, there’s a lag in the same types of legal assistance resources that are available to employers.”

And the government has a responsibility to ensure employers are receiving the correct — and complete — information, she said.

“Our members expect the government to give them the straight goods on what the issue is and what the requirements are, and they also expect a certain level of professionalism on the part of government representatives.”

And when critical information is missing or unclear, employers often pay the price.

“At the end of the day, it makes it really difficult for employers to comply with regulations,” said Troster.

Lawsuit puts spotlight on helpline issue

The issue began making headlines after two employees launched a lawsuit against the ministry helpline in September. Michael Mosey and Eileen Tremblay were long-term employees at Trillium Screw. Both managers, they had about 33 years of experience on the job between them. Then they found out they were being laid off.

The company was shutting its doors and Mosey and Tremblay needed advice about severance entitlements. They each called Ontario’s Ministry of Labour Employment Standards Act helpline and were advised their entitlement was eight weeks’ pay, so they agreed and signed a document to that effect.

It wasn’t until about a year later, while listening to lawyer Lior Samfiru on a Toronto radio station, that they learned they might be entitled to more.

Samfiru, of Samfiru Tumarkin in Toronto, is representing Mosey and Tremblay in a lawsuit against the Ministry of Labour. Mosey is seeking damages of 24 months’ pay (about $104,000) and Tremblay is seeking 16 months or $52,000.

Samfiru alleges the ministry is providing negligent advice by not informing callers they might have additional entitlements over and above the employment standards minimums.

“What the Ministry of Labour should have told them is... ‘These are your minimum entitlements only, you may or may not have additional entitlements, and with respect to those, you’d have to seek independent advice,’” he said. “They should be giving this caveat.”

In this case, as in many others, the ex-employees did not have specialized legal knowledge and without that caveat, they had no way of knowing about additional entitlements.

“Mr. Mosey was unemployed for over a year, Ms. Tremblay is still unemployed, so it’s a very big deal for them,” said Samfiru.

This is not the first time an employee or employer has received misleading or incomplete advice from the helpline, said Samfiru.

“Every employment lawyer that practises in this area of the law knows that this is an issue,” he said. “This is just the first time that someone’s decided to do something about it.”

Samfiru has seen similar incidents in his own practice but sometimes clients are hesitant to believe a legal opinion that contradicts the helpline advice — even if the opinion is in their favour, he said.

In some cases, people have called the helpline with hypothetical or made-up scenarios to see what sort of advice they will receive. In one such instance, the caller was told he’d been overpaid by four weeks when, under common law, he would have been entitled to an additional 10 months’ pay, said Samfiru.

The Ministry of Labour declined to comment on the issue as its policy is to not provide comment in regards to an ongoing legal dispute, but ministry spokesperson Matt Blajer confirmed the ministry intends to fight both claims.

But it’s not this particular court case that should be of most concern to employers, said Samfiru. He has often dealt with employers that have received misleading advice, causing them to offer incorrect entitlements that open them up to legal repercussions.

“Then there’s a lawsuit and the employer ends up having to pay for a lawyer and pay legal fees unnecessarily. All they were trying to do is do the right thing, and they thought they were doing the right thing, because that’s what the Ministry of Labour told them,” he said.

“Obviously, that’s not going to happen to the Royal Bank of Canada, because they have in-house legal advice… but for your small employers that don’t really have that knowledge, it’s perfectly reasonable that they would think they can rely on that advice, when in fact they’re getting the wrong advice,” he said. “And I see that all the time.”

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