Your Employer Owes You Wages? ESA Complaint vs. Small Claims Court in Ontario
If your employer hasn’t paid you what you’re owed, Ontario gives you two paths: an Employment Standards Act complaint to the Ministry of Labour, or a lawsuit...
Frequently Asked Questions
Can I file both an ESA complaint and a Small Claims Court lawsuit?
Generally, no — not for the same entitlements. Section 97 of the ESA requires you to elect one path. However, you can file an ESA complaint for some entitlements (e.g., unpaid vacation pay) and sue in court for different entitlements (e.g., common-law wrongful dismissal damages), as long as the claims do not overlap.
Is there a cap on how much I can recover through an ESA complaint?
No. The former $10,000 cap was eliminated effective February 20, 2015. An Employment Standards Officer can now order recovery of the full amount owed, subject to the 2-year lookback period under s. 111.
How much termination pay am I entitled to under the ESA?
The ESA minimum is 1 week per completed year of service, up to a maximum of 8 weeks. Severance pay (an additional entitlement) is 1 week per year up to 26 weeks, but only applies if the employer has a payroll of $2.5 million or more. At common law, reasonable notice is almost always significantly higher than the ESA minimum — but you need to go to court to claim it.
How long do I have to file a claim for unpaid wages?
Two years. For an ESA complaint, the Employment Standards Officer can only look back 2 years from the date of the complaint (s. 111). For a Small Claims Court claim, the Limitations Act, 2002 imposes a 2-year basic limitation period from the date you knew or should have known about the claim.
Can my employer fire me for filing an ESA complaint?
No. Section 74 of the ESA prohibits reprisal against an employee for exercising their rights under the Act, including filing a complaint. If your employer fires you, demotes you, or penalizes you for filing a complaint, you can file a separate reprisal complaint with the Ministry.
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