Ask the ExpertCategory: QuestionsI am a Manitoba Employer, but I want to hire someone in Ontario. Do we need to follow MB or Ontario Employment Standards for this employee?
hri_Admin Staff asked 1 year ago
2 Answers
Glenn Demby Staff answered 1 year ago

Hi,

We have employees in 6 different provinces, the employees follow their own provincial ESA, however, with some policies, we follow the Ontario ESA based on the company rule and if it is greater than what their local provincial ESA states then we are able to enforce the required process.
An example would be that we provide 5 paid emergency days, this meets Ontario ESA and is above the Manitoba ESA

hope this helps.

Serena Traa replied 1 year ago

This is very helpful, thanks so much.

Glenn Demby Staff answered 1 year ago

I apologize for taking so long to get back to you. First, I agree with the above approach the user in 6 jurisdictions follows. When in doubt, always follow the stricter/strictest requirement. The Manitoba ESC doesn’t address the issue of geographic scope. However, Section 3 of the Ontario ESA says that the Act applies if: (a) the employee’s work is to be performed in Ontario; or (b) the employee’s work is to be performed in Ontario and outside Ontario but the work performed outside Ontario is a continuation of work performed in Ontario. But there are exceptions to this rule, which I’ve pasted in below. It sounds like your employee is working in Manitoba. In that case, you should assume the Manitoba ESC applies unless any of the ESA exceptions below apply:
ESA applies if work done in Ontario, subject to following exceptions:
(2) This Act does not apply with respect to an employee and his or her employer if their employment relationship is within the legislative jurisdiction of the Parliament of Canada.  2000, c. 41, s. 3 (2).
Exception, diplomatic personnel
(3) This Act does not apply with respect to an employee of an embassy or consulate of a foreign nation and his or her employer.  2000, c. 41, s. 3 (3).

Other exceptions
(5) This Act does not apply with respect to the following individuals and any person for whom such an individual performs work or from whom such an individual receives compensation:
1. A secondary school student who performs work under a work experience program authorized by the school board that operates the school in which the student is enrolled.
2. An individual who performs work under a program approved by a college of applied arts and technology or a university.
2.1 An individual who performs work under a program that is approved by a private career college registered under the Private Career Colleges Act, 2005 and that meets such criteria as may be prescribed.
3. A participant in community participation under the Ontario Works Act, 1997.
4. An individual who is an inmate of a correctional institution within the meaning of the Ministry of Correctional Services Act, is an inmate of a penitentiary, is being held in a detention facility within the meaning of the Police Services Act or is being held in a place of temporary detention or youth custody facility under the Youth Criminal Justice Act (Canada), if the individual participates inside or outside the institution, penitentiary, place or facility in a work project or rehabilitation program.
Note: On a day to be named by proclamation of the Lieutenant Governor, paragraph 4 of subsection 3 (5) of the Act is repealed and the following substituted: (See: 2019, c. 1, Sched. 1, s. 17 (1))
4. An individual who is an inmate of a correctional institution within the meaning of the Ministry of Correctional Services Act, is an inmate of a penitentiary or is being held in a place of temporary detention or youth custody facility under the Youth Criminal Justice Act (Canada), if the individual participates inside or outside the institution, penitentiary or place in a work project or rehabilitation program.
Note: On a day to be named by proclamation of the Lieutenant Governor, paragraph 4 of subsection 3 (5) of the Act is amended by striking out “Ministry of Correctional Services Act” and substituting “Correctional Services and Reintegration Act, 2018”. (See: 2018, c. 6, Sched. 3, s. 8)
5. An individual who performs work under an order or sentence of a court or as part of an extrajudicial measure under the Youth Criminal Justice Act (Canada).
6. An individual who performs work in a simulated job or working environment if the primary purpose in placing the individual in the job or environment is his or her rehabilitation.
Note: On a day to be named by proclamation of the Lieutenant Governor, paragraph 6 of subsection 3 (5) of the Act is repealed. (See: 2018, c. 14, Sched. 1, s. 2)
7. A holder of political, religious or judicial office.
8. A member of a quasi-judicial tribunal.
9. A holder of elected office in an organization, including a trade union.
10. A police officer, except as provided in Part XVI (Lie Detectors) or in a regulation made under clause 141 (2.1) (c).
11. A director of a corporation, except as provided in Part XX (Liability of Directors), Part XXI (Who Enforces this Act and What They Can Do), Part XXII (Complaints and Enforcement), Part XXIII (Reviews by the Board), Part XXIV (Collection), Part XXV (Offences and Prosecutions), Part XXVI (Miscellaneous Evidentiary Provisions), Part XXVII (Regulations) and Part XXVIII (Transition, Amendment, Repeals, Commencement and Short Title).
12. Any prescribed individuals.  2000, c. 41, s. 3 (5); 2006, c. 19, Sched. D, s. 7; 2017, c. 22, Sched. 1, s. 2 (2); 2020, c. 3, s. 1.

***
I hope that helps and I apologize again for the delay.