Seriously, you need to show up

Exclusive to Canadian HR Reporter from Rudner Law.

Canada’s legal and tribunal system offers an opportunity for parties to argue their case and have a neutral third party adjudicate the matter. This process ensures that all parties are equal before the law and have an opportunity to tell their side of the story before a fair outcome respecting the law is reached.

However, what happens when both parties fail to participate in the process? Surprisingly, we occasionally do see cases where only one of the parties shows up at a hearing or other key milestone in the adjudication process. 

The recent decision of Brent Westgate, Applicant v Stockbox Kitchens Inc., before the Ontario Labour Relations Board (OLRB), provides an example of the consequences that can arise when a party chooses not to participate in the adjudication process.

Complaint under Ontario’s ESA

The applicant, Brent Westgate, was hired by the respondent, Stockbox Kitchens, in 2019. Stockbox is a kitchen installation company which performs design, supply and installation work for residential and commercial retail clients. Westgate was not assigned a title at the time he was hired and found himself doing a wide variety of tasks, from sales and design to installations and deliveries. His role did not include a defined wage rate. 

Westgate worked for Stockbox, apparently without pay, for about four years before leaving in November 2023.

He brought a complaint to the Ministry of Labour (MOL) under the Employment Standards Act, 2000 (ESA) seeking unpaid wages, expenses, and vacation pay. The ESA includes a limitation period which only permits an employee to seek relief based on events in the two-year period prior to bringing a claim. Westgate accordingly sought payment of his outstanding wages for the two-year period prior to his departure, Dec. 2, 2021 – Nov. 29, 2023 (the claim period). 

The MOL did not award Westgate lost wages, and instead only awarded him $849.80 in unpaid vacation pay.

Westgate then brought an Application for Review to the OLRB, seeking a review of the MOL’s decision.

Stockbox fails to attend OLRB hearing

Stockbox did not attend the OLRB hearing to address Westgate's Application for Review, and does not appear to have filed any materials. Accordingly, he was the only party to give evidence, and this evidence was uncontradicted.

Westgate’s evidence was that he had worked 367 days at 8 hours a day within the Claim Period, equal to $145,800 in outstanding wages plus unpaid commissions in the amount of $65,945. This was based on what Westgate claimed was the "industry standard" wage rate for his role.

The OLRB noted that as Westgate could not produce any evidence confirming he was entitled to the claimed "industry standard" wage rate, it could only award damages for unpaid wages based on the minimum wage established by the ESA.

The OLRB calculated his outstanding wages as being $44,707. Westgate also established that Stockbox owed him $65,945 in unpaid commissions based on deals closed during the Claim Period.

Finally, Westgate claimed $7,905 in outstanding expenses. He testified that Stockbox had paid him $20,381 in expenses, and confirmed that this should be subtracted from the total amount he claimed as outstanding.

The OLRB refused to award Westgate the unpaid expenses, citing that the definition of wages in the ESA explicitly excluded expenses. However, based on this definition, the OLRB also refused to reduce his claim by the sum that Stockbox had paid him in expenses.

The OLRB ultimately amended the MOL’s Order to Pay to increase it by a total of $110,652 in outstanding pay. The OLRB added 4% in vacation pay, for a total of $115,078.

Responding to employee complaints

Whether there would have been a different outcome if the employer had responded to the Application for Review is impossible to say with certainty.

However, if it had entered  a response or participated in the hearing, Stockbox could have contested Westgate’s evidence of his hours worked, or his cited figure for outstanding commissions. Stockbox may also have been able to establish some other defence against Westgate’s claims on either a procedural or substantive basis.

Even if his claim could not be refuted, Stockbox may have been able to negotiate a resolution that kept the matter from being made public as a decision.

Instead, Westgate’s version of events was the only one that mattered, as it was the sole version of events that the OLRB had available to make its decision. Stockbox’s refusal to participate has led to it now being indebted to the government of Ontario in the amount of $115,078, combined with a public decision against it.

The lesson from this case is that even if an employer believes that an employee's claim is without merit, choosing to ignore it is accepting the risk of a negative outcome. In other words, it cannot be stressed enough: seriously, you need to show up.

Geoffrey Lowe is an associate lawyer at Rudner Law in Toronto. He can be reached at (416) 864-8500 or [email protected].