The Workers’ Rights Division represents low-income, non-unionized workers with many different employment or work-related issues. We represent workers at various courts and tribunals:
- Ministry of Labour and the Ontario Labour Relations Board (unpaid wages, termination and severance pay, Employment Standards Act and Occupational Health and Safety Act reprisals)
- Small Claims Court (wrongful dismissals, unpaid wages, workplace human rights violations)
- Superior Court for exceptional cases (wrongful dismissals, unpaid wages, workplace human rights violations)
- Human Rights Tribunal of Ontario (workplace human rights violations)
- Social Security Tribunal of Canada (Employment Insurance appeals)
- Tax Court of Canada (Independent contractor/employee rulings)
- Canada Labour Arbitration (Canada Labour Code violations, unjust dismissal)
We are proud of our success. Since the summer of 2011, we represented more than 1,040 workers and provided summary legal advice to 4,100 further workers. In the last ten years, we have recovered more than $6.3 million in wages, wrongful dismissal damages, human rights compensation, and other employment entitlements.
Below is a small sample of our reported cases (click on the case citation to read the decision). We thank all our workers/clients who fought for the rights of all workers.
The claimant, a chef at a restaurant, received $1,000 for working 60 hours per week. An issue in dispute was as to how to calculate the claimant’s hourly wage rate. Specifically, should his hourly wage rate be calculated by dividing the $1,000 by 60 hours or dividing it by 44 regular (non-overtime) hours? The hourly rate issue was of significance as it greatly affected the claimant’s overtime pay claim. The Employment Standards Officer chose the former method, i.e., $1,000 / 60 hours. The claimant appealed to the Ontario Labour Relations Board arguing that the proper calculation was $1,000 / 44 hours. The Ontario Labour Relations Board agreed with the claimant’s calculation and increased the original Order to Pay from $3,042.95 to $26,359.10. A second issue in dispute was whether the Employment Standards Officer was wrong to assume that the claimant worked no overtime hours for the weeks that he no longer possessed records. Citing a previous Parkdale Community Legal Services’ case Marin v. Zeitz,  OJ No 6457, the Ontario Labour Relations Board noted that the responsibility to keep records rests with the employer and, as such, it was “reasonable and fair” to extrapolate what the employer in fact owes the claimant based on the claimant’s viva voce evidence and the available documentary evidence.
Although the case is not noteworthy from a legal perspective, it is a good example of a typical unpaid wages claim that many of Parkdale Community Legal Services’ low income clients may face. The worker in this matter was owed $20,175.65 in minimum wage, overtime pay, public holiday pay, public holiday premium pay, and vacation pay.
An employee appealed a motion judge’s decision to dismiss her constructive dismissal case. The motion judge had concluded that the temporary amendments to the Infection Disease Emergency Leave (IDEL) provision of the Employment Standards Act overruled the common rules that say in most cases a temporary layoff constituted a constructive dismissal. The Court of Appeal granted the appeal. Parkdale Community Legal Services acted as an intervenor.
Parkdale Community Legal Services intervened in the first post Uber Technologies Inc v Heller case involving the validity of a private arbitration clause. The appellant/responding party on the motion, Leon, brought an action against his former employer, Dealnet, claiming unpaid wages relating to a transaction-based bonus. In response, Dealnet brought a motion to stay the action on the basis that the dispute was subject to an arbitration agreement between the parties. Justice Freya Kristjanson found that whether the Arbitration Act excludes the appeal or the provision violates the Employee Standards Act and is unenforceable highlights relevant questions of law. She wrote that she could not conclude that the appeal is devoid of merit, mainly because Parkdale Community Legal Clinic appeared as an intervener, stating “The Parkdale Clinic has intervened in the interests of vulnerable workers, highlighting the importance of the questions of law to be resolved.”
An example of how we strive to do legal work with a systemic angle, this case involved four former temporary workers from FDM Group, a multi-national temporary work agency, who left their assignments arranged through FDM before the conclusion of a two-year commitment period. Under FDM’s employment agreement, workers who end their employment contract before completing their commitment period are liable for $30,000 in damages arising from alleged job-training costs incurred by FDM. The Ontario Labour Relations Board agreed with the four workers that FDM’s $30,000 charge constituted a fee and the manner in which FDM sought to enforce the charge was prohibited by the Employment Standards Act. As a result, the Board held that the fee was illegal and ordered FDM to remove provisions enforcing the fee from its employment agreements (See the Media Release here).
The applicant was a forklift driver in an industrial facility operated by the respondent. After he had an implantable defibrillator installed in his chest, he was cautioned by his physicians about exposure to high voltage machinery that could cause the defibrillator to deliver an inappropriate shock. The applicant believed that certain equipment in his workplace posed such a risk. He refused to work in that area when directed to do so by the respondent. The respondent terminated the applicant’s employment. Approximately a year later, after the applicant filed a Human Rights Tribunal of Ontario application, the respondent commissioned a worksite assessment to determine whether the workplace posed any risk to an individual with an implantable cardiac device. The report concluded the levels measured in the plant were well below the corresponding maximum recommended exposure levels, that is, there was little or no risk. Nevertheless, the Human Rights Tribunal of Ontario found that the respondent did not take the appropriate steps, until after the applicant had commenced legal proceedings, to properly assess whether there were any risks to an individual with an ICD or pacemaker working in the plant. By failing to take the appropriate steps to address the applicant’s restrictions, the Human Rights Tribunal of Ontario found that the respondent did not meet its obligations under the procedural duty to accommodate. The claimant received over $60,000 in damages.
The claimant, an English as Second Language teacher, was fired by the employer two days after he complained about working extra hours without pay. When Parkdale Community Legal Services sent a demand letter to the employer, the employer amended the claimant’s Record of Employment to make it more difficult for the claimant to access Employment Insurance benefits. The Ontario Labour Relations Board found that the employer committed two acts of reprisal, i.e., when the employer initially fired the claimant and when the employer amended the Record of Employment after receiving a letter from the claimant’s legal counsel.
This is very likely the first Occupational Health and Safety Act unlawful reprisal case brought to the Ontario Labour Relations Board by a migrant farm worker. Mr. Flores worked for Scotlynn Sweetpac Growers (“Scotlynn”). Mr. Flores lived in one of six workers’ bunkhouses on Scotlynn’s property. Approximately 221 migrant farm workers lived in the six bunkhouses. One of the migrant farm workers who lived with Mr. Flores was a worker named Juan Lopez Chaparro. Mr. Flores noticed that Mr. Chaparro was not feeling well, and he and several co-workers approached their supervisors to ask for help, which belatedly resulted in Mr. Chaparro being hospitalized for COVID-19. Unfortunately, on June 20, 2020, Mr. Chaparro died. At a group meeting where the workers were informed of Mr. Chaparro’s death, Mr. Flores (frustrated by the cramped living conditions and feeling that Scotlynn did not take Mr. Chaparro’s conditions seriously until it was too late) challenged his supervisor and expressed that Scotlynn should take better care of the workers. Next morning, Scotlynn fired Mr. Flores and told him that he was being sent back to Mexico. Noting the power imbalance between the employer and a migrant worker, the Ontario Labour Relations Board awarded Mr. Flores more than $25,000 in damages. This case, and Mr. Flores’ fight for reforms to the temporary foreign workers program, garnered much national and international media attention.
Parkdale Community Legal Services intervened in this Supreme Court of Canada appeal. The Supreme Court of Canada had to determine whether a constructively dismissed employee is entitled to receive a bonus that became owing during his reasonable notice period. Parkdale Community Legal Services intervened to encourage the Supreme Court of Canada to find that an employer’s duty of good faith to its employee exists for the entire employment period and not just at the time of dismissal.
Parkdale Community Legal Services partnered with Income Security Advocacy Centre to intervene in this Supreme Court of Canada appeal, which dealt with whether Uber’s mandatory arbitration clause prohibits Uber workers from pursuing a class action lawsuit. Parkdale Community Legal Services and Income Security Advocacy Centre focused their submission on why it is crucial that low income workers have access to public and low barrier dispute resolution mechanism, e.g., Ministry of Labour’s Employment Standards Act complaint process (See the Media Release here).
The claimant came to Canada from the Philippines and worked for the employers as a live-in caregiver for their adult child who has a severe disability. The claimant alleged that in addition to caregiving and housekeeping duties during the day, the employers also required her to be on-call overnight, ready to be awakened from her sleep if needed. The employers denied that the claimant was ever awakened from her sleep to take care of their child. Partly due a termination letter that the employers falsified, the Ontario Labour Relations Board found that the employers’ testimonies were not credible. The Board also determined that the claimant was entitled to be compensated for the overnight sleep hours as “there was no assurance that her sleep would not be disturbed”. The Board awarded the claimant $27,896.89.
The claimant worked as a cleaner in a group home located in Parkdale. The claimant, who had precarious immigration status, lived in the group home and received cash payments for her work. The claimant sought unpaid minimum wage, overtime pay, and public holiday pay. The employer argued that the claimant was not entitled to the amount sought because the Employment Standards Act exempts superintendent, janitor, or a caretaker of a residential building who resides in the building from being entitled to minimum wage, overtime pay, and public holiday pay. In response, the claimant argued that the exemption does not apply to her because, among other reasons, the purpose of the exemption is to remove the burden from an employer of paying minimum wage, overtime pay, and public holiday pay to those employees over whose time the employer has little or no control. In her situation, however, the employer controlled her hours and monitored her work. The Ontario Labour Relations Board agreed with the claimant and found that she was not exempted from minimum wage, overtime pay, or public holiday pay.
Although the case is not noteworthy from a legal perspective, it is an excellent example of what workers encounter in the construction industry where subcontracting is the norm and not the exception. The claimant, who stained and varnished stairs in a new condominium building, was not paid for a significant amount of the work he preformed. The Ministry of Labour found that the employer owed $2,700.00 to the claimant. The employer appealed the decision to the Ontario Labour Relations Board, but the Board had no difficulty in determining that the employer’s appeal had no merit.
A sales clerk at a clothing retailer asked her employer if she could sit while performing certain tasks as she had a medical condition that caused her great pain if she stood for a prolonged period of time. Initially, the employer agreed to the simple accommodation request but later withdrew the accommodation and fired her. The Human Rights Tribunal of Ontario found that the employer fired the sales clerk due to her disability. The Human Rights Tribunal of Ontario awarded the worker $13,500.00 in general damages and $9,097.22 for lost income.
Hinic v. Classic POS Inc.,  OJ No 7099
The plaintiff, who worked as a programmer and customer support worker for the defendant, sued for unpaid wages and constructive dismissal damages. The defendant argued that the plaintiff was an independent contractor. The Court determined that the plaintiff was an employee because the defendant directed and controlled the plaintiff’s work. The Court awarded unpaid wages, vacation pay, and public holiday pay to the plaintiff.
Loggie v. Classic POS Inc.,  OJ No 7098
The plaintiff, who worked as an office assistant for the defendant, sued for unpaid wages and constructive dismissal damages. The defendant argued that the plaintiff was an independent contractor and relied on a written independent contractor agreement between the two parties. The Court agreed with the plaintiff that the subjective intent of the parties is not a determinative factor when assessing whether an individual is an employee or an independent contractor. The Court awarded unpaid wages, vacation pay, public holiday pay, and constructive dismissal damages to the plaintiff.
An agricultural employer fired an injured worker after he filed an Employment Standards Act claim. The Ontario Labour Relations Board ordered the employer to pay $26,786.09 as reprisal damages, which included a confirmation that pain and suffering awards are now higher.
Reco Cleaning Services subcontracted Gilmour Services, who then recruited workers to clean newly built condominium buildings. When Gilmour Services failed to pay the workers, fourteen of the workers filed Employment Standards Act claims, arguing that Reco Cleaning Services should be held liable for the unpaid wages. The Ministry of Labour found that the subcontractor, and not Reco Cleaning Services, was solely responsible for the wages. The victory was hollow for the workers as Gilmour Services did not have the financial capacity to pay. On the Application for Review, the Ontario Labour Relations Board agreed with the fourteen workers that Reco Cleaning Services was the true employer and imposed liability on it, the top contractor, rather than the subcontractor.
In finding that an employer dismissed a worker for filing an Employment Standards Act claim, the Ontario Labour Relations Board confirmed that if an employer’s decision to dismiss an employee is in any way tainted by the fact that the employee asserted his or her rights under the Employment Standards Act, then a reprisal has occurred. The decision is noteworthy for providing a comprehensive historical, philosophical, and legal overview of the anti-reprisal protections.
The Workplace Safety and Insurance Appeals Tribunal reversed the Workplace Safety and Insurance Board’s decision and granted the injured worker psychotraumatic disability entitlements and partial Loss-of-Earnings benefits. (Please note that we no longer represent on Workplace Safety and Insurance Board matters.)
A live-in caregiver/cleaner filed an Employment Standards Act claim for unpaid wages and termination pay. Citing a previous Parkdale Community Legal Services’ case, the Ontario Labour Relations Board confirmed that a worker who is required to remain in the place of employment must be paid regardless of whether the worker had active duties.
In a preliminary hearing at the Human Rights Tribunal of Ontario, the applicant employee and the respondent employer disagreed as to when the final act of discrimination occurred, i.e., whether the discrimination occurred on the date the employee received notice of dismissal or on the date the dismissal is effective. In refusing to dismiss the application for delay, the Tribunal agreed with the applicant that the final act of discrimination occurs when a dismissal becomes effective.
Marin v. Zeitz,  OJ No 6457
In this case involving a live-in caregiver, the Court determined that it may make a negative inference against employers for their failure to keep a record of hours worked by their employee and for their failure to provide written pay statements. The Court awarded the live-in caregiver full wages sought.
Work v. Northwood Collection Inc.,  OJ No 2293
While quoting from a New Brunswick Court of Appeal decision about “class prejudice” in determining notice period, the Court awarded seven months’ pay to the plaintiff factory worker with seven years of service.
Employers of a live-in caregiver filed an Application for Review to the Ontario Labour Relations Board, arguing that they did not owe wages to the caregiver. In detail, the Board explained that work is deemed to be performed by a worker as long as the worker must hold her or himself at the place of employment.
The Human Rights Tribunal of Ontario awarded $25,000 to the applicant who was subjected to sexual harassment.
The employer hired the worker to solicit people at shopping malls to apply for a credit card. The Ministry of Labour found that the worker was a commissioned salesperson who worked away from the employer’s place of business and thus exempt from minimum wage. The Ontario Labour Relations Board found the worker to be entitled to minimum wage, determining that the level of control the employer held over the worker made him a route salesperson.