<i>Employment Standards Act</i> awards are minimum entitlements, not damages

Boland v. APV Canada Inc., 2005 CarswellOnt 532 (Ont. Div. Ct.)

An Ontario court has reversed a lower court ruling that entitlements under the Employment Standards Act cannot be claimed in a civil action and can only be obtained administratively.

Patrick Boland worked for 12 years for a company until it was sold. He was offered a position with the new company, but declined it because his seniority wasn’t recognized. His employment was terminated, and within three weeks he found another job. On termination he received some but not all of the minimum entitlements he was due under the Employment Standards Act (ESA). He launched an action claiming both damages for wrongful dismissal and the balance of his entitlements under the ESA. He did not file any complaints under ESA’s administrative scheme, which caps a successful claimant’s award at $10,000.

A lower court ruled the standards in the ESA were not enforceable by civil action, and furthermore that ESA remedies of termination pay and severance pay are alternatives to damages for wrongful dismissal.

The Ontario Superior Court of Justice overturned the lower court’s ruling. The ESA is remedial legislation intended to provide a minimum set of standards for the protection of employees.

The possibility always exists that other entitlements are better for the employee than the ESA’s minimum, the court ruled. Nothing in the wording of the ESA precludes a worker from seeking both statutory minimums and the possibly more advantageous common law remedies in the same action. (The ultimate awards will however be subject to double recovery considerations, the court noted. If a larger amount is assessed as damages, those damages are awarded and any ESA awards paid out are deducted.)

ESA entitlements are not damages, concluded the court. ESA entitlements can be claimed via an action or administratively. Whichever way they are sought, they are not subject to reduction on the basis of mitigation: the $10,000 cap is applicable to administrative enforcement of the ESA only, and has no application to a claim made in an action.

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