Ontario Employment Law: Exemptions From The Overtime Provisions Of The Ontario Employment Standards Act

As a general rule, if an employee in Ontario works more than 44 hours per week, he or she is entitled to be paid one and one-half times his or her regular rate of pay for each hour worked in excess of 44 hours.

Section 22 of the Ontario Employment Standard Act provides:

PART VIII

OVERTIME PAY

Overtime threshold

22. (1) An employer shall pay an employee overtime pay of at least one and one-half times his or her regular rate for each hour of work in excess of 44 hours in each work week or, if another threshold is prescribed, that prescribed threshold. 2000, c. 41, s. 22 (1); 2011, c. 1, Sched. 7, s. 1.

Regulation 285 to the Ontario Employment Standards Act, however, contains some notable exemptions to the normal rule.

Two provisions contained in the Regulation are relevant to overtime claims:

• Section 2(1), which sets out general exemptions from Parts VII-XI of the Act, including Part VIII dealing with overtime pay, and
• Section 8, which sets out exemptions from overtime.

Section 2(1) provides:

Exemptions from Parts VII to XI of Act

2. (1) Parts VII, VIII, IX, X and XI of the Act do not apply to a person employed,

(a) as a duly qualified practitioner of,

(i) architecture,

(ii) law,

(iii) professional engineering,

(iv) public accounting,

(v) surveying, or

(vi) veterinary science;

(b) as a duly registered practitioner of,

(i) chiropody,

(ii) chiropractic,

(iii) dentistry,

(iv) massage therapy,

(v) medicine,

(vi) optometry,

(vii) pharmacy,

(viii) physiotherapy, or

(ix) psychology;

(c) as a duly registered practitioner under the Drugless Practitioners Act;

(d) as a teacher as defined in the Teaching Profession Act;

(e) as a student in training for an occupation mentioned in clause (a), (b), (c) or (d);

(f) in commercial fishing;

(g) as a salesperson or broker, as those terms are defined in the Real Estate and Business Brokers Act, 2002; or

(h) as a salesperson, other than a route salesperson, who is entitled to receive all or any part of his or her remuneration as commissions in respect of offers to purchase or sales that,

(i) relate to goods or services, and

(ii) are normally made away from the employer’s place of business. O. Reg. 285/01, s. 2 (1); O. Reg. 92/06, s. 1.

(2) Subject to sections 24, 25, 26 and 27 of this Regulation, Parts VII, VIII, IX, X and XI of the Act do not apply to a person employed on a farm whose employment is directly related to the primary production of eggs, milk, grain, seeds, fruit, vegetables, maple products, honey, tobacco, herbs, pigs, cattle, sheep, goats, poultry, deer, elk, ratites, bison, rabbits, game birds, wild boar and cultured fish. O. Reg. 285/01, s. 2 (2).

Section 8 provides:

Exemptions re Overtime Pay

Exemptions from Part VIII of Act

8. Part VIII of the Act does not apply to,

(a) a person employed as a firefighter as defined in section 1 of the Fire Protection and Prevention Act, 1997;

(b) a person whose work is supervisory or managerial in character and who may perform non-supervisory or non-managerial tasks on an irregular or exceptional basis;

(c) a person employed as a fishing or hunting guide;

(d) a person employed,

(i) as a landscape gardener, or

(ii) to install and maintain swimming pools;

(e) a person whose employment is directly related to,

(i) the growing of mushrooms,

(ii) the growing of flowers for the retail and wholesale trade,

(iii) the growing, transporting and laying of sod,

(iv) the growing of trees and shrubs for the retail and wholesale trade,

(v) the breeding and boarding of horses on a farm, or

(vi) the keeping of furbearing mammals, as defined in the Fish and Wildlife Conservation Act, 1997, for propagation or the production of pelts for commercial purposes;

(f) a person employed as a student to instruct or supervise children;

(g) a person employed as a student at a camp for children;

(h) a person who is employed as a student in a recreational program operated by a charitable organization registered under Part I of the Income Tax Act (Canada) and whose work or duties are directly connected with the recreational program;

(i) a person who is employed as the superintendent, janitor or caretaker of a residential building and resides in the building;

(j) a person employed as a taxi cab driver;

(k) a person employed as an ambulance driver, ambulance driver’s helper or first-aid attendant on an ambulance; or

(l) an information technology professional. O. Reg. 285/01, s. 8.

On the specific exemption applicable to employees whose work is "supervisory or managerial in character", please see our January 8, 2011 post, "Ontario Employment Law: Overtime Pay."

- Robert Tanha, Toronto

Visit our Toronto Law Firm website: www.wiselaw.net

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Ontario Employment Law: Overtime Pay

Section 22 of the Ontario Employment Standards Act provides that in most circumstance, an employee who works more than 44 hours in a given week shall be paid at least one and one-half times his or her regular rate of pay for overtime hours worked.

Specifically, Section 22 of the Act states:

Overtime threshold

22. (1) An employer shall pay an employee overtime pay of at least one and one-half times his or her regular rate for each hour of work in excess of 44 hours in each week or, if another threshold is prescribed, that prescribed threshold. 2000, c. 41, s. 22 (1).

Averaging

(2) An employee’s hours of work may be averaged over separate, non-overlapping, contiguous periods of two or more consecutive weeks for the purpose of determining the employee’s entitlement, if any, to overtime pay if,

(a) the employee has made an agreement with the employer that his or her hours of work may be averaged over periods of a specified number of weeks;

(b) the employer has received an approval under section 22.1 that applies to the employee or a class of employees that includes the employee; and

(c) the averaging period does not exceed the lesser of,

(i) the number of weeks specified in the agreement, and

(ii) the number of weeks specified in the approval. 2004, c. 21, s. 6 (1).

When an employee is terminated by an employer, that employee has a statutory right to be paid for his or her outstanding overtime hours, provided that the overtime claim is not barred by any applicable limitation period. This is in addition to any other claims an employee may have to compensation under the Act or at common law.

Of course, like so many rules of law, there are some notable exceptions. For example, a regulation of the Act provides that the overtime provision does not apply to a person employed whose "only work is supervisory or managerial in character". While this is a recognized exemption from Section 22, it is a narrow one since most employees, including many managers, cannot be said to only perform supervisory functions.

A case in point is Bala Bay Inn v. Turnbal. There, the Ontario Labour Relations Board assessed the duties of a security manager, concluding as follows:

In the present case, the Board is similarly unable to find that the claimant's only work is supervisory or managerial in character. The claimant was required to perform security services himself and to perform janitorial duties on a regular basis. He was responsible for overseeing the work of other security staff while he himself engaged in security monitoring. The evidence was that the claimantwas required to perform patrolling functions while overseeing the work of other security staff, that during the overnight shifts he was required to perform janitorial duties and that he never hired or fired any employees. The Board therefore finds that the claimant is not exempt from the overtime pay provisions.

Additional, detailed information on overtime pay claims, entitlements and exclusions is available at the Ontario Ministry of Labour website. A lising of industries and professions that have special rules or exclusions applicable to overtime pay is also available from the Ministry online.

Note that provincial employment standards legislation does not cover federally regulated sectors, such as banking, airlines, telephone and cable communications and intra-provincial transport. These sectors are covered by the Canada Labour Code. For more information on the Canada Labour Code's overtime provisions, see Overview of Part III of the Canada Labour Code (Labour Standards) from the HRSDC website.

If you believe you have been wrongfuly deprived of overtime pay by your current or former employer, contact a lawyer who can advise you as to your rights relating to overtime pay and your additional entitlements under the Employment Standards Act and at common law.

- Robert Tanha and Garry J. Wise, Toronto

Visit our Toronto Law Firm website: www.wiselaw.net

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