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Employment Standards Wage Recovery Appeal – Appeal of a review decision made by the Head of Compliance and Enforcement

Table of contents

    IMPORTANT: The information on this page only applies if you have requested that the Head of Compliance and Enforcement (the Head) review a:

    • Notice of Unfounded Complaint; 
    • Notice of Voluntary Compliance; or 
    • Payment Order 

    AND the Head of Compliance and Enforcement has issued a decision.  

    If you have requested a review by the Head and the Head has referred the request for review to the Canada Industrial Relations Board (the Board), go to the Wage Recovery Appeal –Referral by the Head of a Request for Review to the Board page. 

    If you have requested a review by the Head and have not received a response, you can contact the Labour Program of Employment and Social Development Canada (the Labour Program) to find out the status of your request.

    If you believe that your employer owes you wages or other amounts, you must first file a complaint with the Labour Program. The Board can only get involved once the Labour Program has issued a Notice of Unfounded Complaint, a Notice of Voluntary Compliance or a Payment Order and the Head has:

    • reviewed and confirmed the Notice of Unfounded Complaint, Notice of Voluntary Compliance or Payment Order;
    • reviewed and changed or cancelled the Payment Order; or 
    • decided not to review the Notice of Unfounded Complaint, Notice of Voluntary Compliance or Payment Order and referred the request for review to the Board.

    Please visit the main Wage Recovery Appeals page for a description of the process that needs to be followed.

    Who can file a wage recovery appeal with the Board?

    • You can file an Application to Appeal the Head’s Review Decision with the Board if:
      • you requested that the Head review a Notice of Unfounded Complaint, a Notice of Voluntary Compliance or a Payment Order;
      • you have received the Head’s Review Decision;
      • you do not agree with the Head’s Review Decision; and
      • fewer than 15 calendar days have passed since you received the Review Decision.
    • If you are an employer and you are appealing a Review Decision concerning a Payment Order, you must pay the Head:
      • the amount the Head found was owed to the employee in the Review Decision. 
        • Any money that was paid to the Head when the request for review was filed can be deducted from this amount. The Labour Program will hold this money until the Board has decided the application. At the end of the process, the Labour Program will either pay the money to the employee or return all or part of it to the employer, depending on the Board’s decision.  
      • an administrative fee of either $200 or 15 per cent of the amount of the Review Decision, whichever is higher. 
    • After the Board receives the employer’s Application to Appeal, it will check with the Labour Program to make sure that these amounts have been paid before proceeding with the application. 

    How do I file a wage recovery appeal?

    • It is strongly recommended that you use the Wage Recovery Appeals form to file your application. The form contains the information that the Board needs to make a decision and will help you make sure that the information that you are filing is complete.
    • If you do not file all the information that the Board needs, it will take the Board longer to process your application. 
    • In some cases, not filing all the information that the Board needs can result in your application being dismissed without the opportunity to make any further submissions.
    • All documents, including applications and all supporting documents, are filed using the Board’s E-Filing Web Portal. This is the fastest and most accurate way to file documents with the Board.  
    • You do not need to send the Board a paper copy of documents that have been e-filed with the Board. If you need assistance with the E-Filing Web Portal, you can contact the Board directly using its 1-800 line or online inquiry form. The Board’s contact information can be found here.   

     

    When does a wage recovery appeal need to be filed?

    • You have 15 calendar days from when you received the Review Decision to file an Application to Appeal with the Board. 
    • The Board may accept a late application. When you file your application, you will also need to ask the Board for more time to file the application and tell it why your application is late. The Board will then decide whether to accept your application.  You cannot ask for more time to file your application before you file your application.  

    What should my application to appeal include?

    • You will need to tell the Board what mistakes the Head made in the Review Decision.
    • Applications to Appeal Review Decisions will only be successful if the Head made a mistake in applying the law or made a decision that they did not have the jurisdiction to make. 
    Mistake of Law Mistake of Jurisdiction

    A mistake of law occurs when the Head, who knows the facts, applies the law incorrectly or applies the wrong law. The result is an incorrect decision. 

    Examples of a mistake of law in a Wage Recovery Appeal could include:

    • finding that employees should receive certain benefits that they were not supposed to receive under Part III of the Canada Labour Code; or
    • not following past decisions on the same issue with similar facts.

    A mistake of jurisdiction occurs when the Head MAKES a decision that they do NOT have the power to make. A mistake of jurisdiction can also occur when the Head does NOT make a decision that it DOES have the power to make.

    Examples of a mistake of jurisdiction in a Wage Recovery Appeal could include:

    • changing a Payment Order when the employer did not pay the required administrative fee; or
    • ordering the employer to erase discipline from the employee’s personnel file.
    • In your Application to Appeal, you must describe, as clearly as you can, the errors that the Head made in the Review Decision. You should tell the Board what parts of the Review Decision are wrong, and why.

    Who is involved?

    • The employee who originally complained to the Labour Program about the wages or other amounts owing.   
    • The employer of the employee who complained to the Labour Program about the wages or other amounts owing. Depending on whether it is the employee or the employer who is unsatisfied with the Head’s Review Decision, the employee may be the applicant or the respondent. 
    • The applicant and the respondent are sometimes referred to as the parties.
    • The Labour Program may also decide to participate in the appeal as a party.
    • The Industrial Relations Officer (IRO) – for more information on the role of the IRO, click here.   
    • The decision maker appointed by the Chairperson to hear and decide the application.

    Can I be represented by someone else? 

    • Yes, each party can be represented by the person of their choice.
    • The Board does not provide lawyers to assist parties.  
    • The Industrial Relations Officer working on the file can help parties understand the process and what they need to do to prepare for a hearing, but they are impartial and do not provide legal or strategic advice as a lawyer would.
    • The Board recognizes that parties who represent themselves may not know the law or the process and may find it intimidating to appear before the Board. The Board will try to make the process as simple as possible given the nature of the dispute.
    • It is important that you attend any case management conferences that the Board organizes.  These conferences are often used by the Board to explain the process and what the Board will expect from the parties at a hearing. 

    What happens after I file my application to appeal?

    • The Board will send a copy of your Application to Appeal to the Labour Program and ask the Labour Program for a copy of its file.
    • If the application was filed by an employer and relates to a Payment Order, the Board will also ask the Labour Program whether the employer has paid the amount owing from the Review Decision and the administrative fee.

       

      The greater of: $200.00 or 15 per cent of the Payment Order.

    • Once the Board has received a copy of the file and confirmation of payment by the employer (if necessary), it will process the application.
    • The Board will send the employee or employer who filed the application (the applicant) and the person or organization named in the application (the respondent) a letter acknowledging receipt of the application.    
    • If either of these parties has hired a representative, such as a lawyer, the letter will be sent to the representative. It is the representative’s obligation to keep the party that they represent up to date. 
    • The letter will: 
      • contain a copy of the file that was received from the Labour Program;
        • include a case file number; 
        • include a copy of all documents filed by the applicant;
        • inform the parties of the name and contact information of the Board’s Industrial Relations Officer (IRO) who will assist the Board and the parties with the application; and

           

          The parties are responsible for filing their arguments and documents. The IRO answers questions that the parties have and assists them to reach a settlement whenever possible.

      • advise the person or organization that the application is against (the respondent) of: 
        • how much time they have to file a response to the application; and  
        • how much time the applicant will have to reply to any new facts and arguments raised by the respondent.

           

          The Board will give the parties, including the Labour Program, 15 calendar days to file additional information and documents. It is not necessary to file information and documents that were included with the application or were in the file that the Labour Program sent to the Board—the Board already has these documents. 

          The parties, including the Labour Program, will be given 10 calendar days to respond to the additional submissions of the other parties.

    • IMPORTANT: If you need more time to file submissions, you need to write to the Board and ask it for an extension of time. You need to tell the Board why you can’t meet the deadline. If the Board does not allow the extension, it may not consider documents that are filed after that date.
    • IMPORTANT: The response should clearly explain the respondent’s version of the facts to the Board and include any documents that the respondent has which are relevant to the application and which the applicant did not file. 
    • The applicant does not need to file a reply. Filing a reply is only necessary when the respondent raises new facts or arguments in its response. If you decide not to file a reply, you should tell the Board that you will not be filing one. 

    How do I file my documents, representations, or evidence?

    • All complaints, applications, responses, replies and supporting documents are filed using E-Filing Web Portal.  This is the fastest and most accurate way to file documents with the Board. It is not necessary to send the Board a paper copy of documents that have been e-filed with the Board.  
    • Each party must send all other parties a copy of any document that they file with the Board. This can be done by email, mail, registered mail, courier or by hand.   
    • When you file documents with the Board, you must tell the Board how and when you sent the documents that you are filing to the other parties.  

    Is the information in my file confidential?

    • Parties who file documents with the Board are participating in a public hearing. This means the documents that are in the file are available to the public.  
    • If a party is concerned about some of the information that they are filing with the Board being available to the public, that person can ask the Board to issue a confidentiality order. If the request is granted, the protected information will not be publicly available. For more information, you can refer to the Board’s Policy on Openness and Privacy or contact the Industrial Relations Officer responsible for your case.  

    Will there be mediation? 

    • Mediation is part of the Board’s process. It is recommended that parties attempt to mediate their dispute. Many of the Board’s files are settled at the mediation stage. Mediation allows the parties to settle the dispute on their terms and resolves the matter faster than if the file has to go to a Board member for a decision.
    • The Industrial Relations Officer assigned to your file will contact you to discuss the mediation options offered at the Board.
    • For more information on the mediation process, please click here. 

    Will there be a hearing? 

    • Not necessarily. In many cases, the Board can make a decision based on the documents on file, without holding a hearing. This is part of the reason why written submissions should be as complete as possible. This is true even if the parties request a hearing. 
    • If the Board decides to hold a hearing, it will advise the parties of the date, time, and location of the hearing in advance, usually after holding a Case Management Conference. 
    • For more information on the Board’s hearing process, please click here.

    When will I get the decision?

    • The Board will notify you in writing of its decision.  
    • The time that it takes the Board to issue a decision can vary depending on the complexity of the case. 
    • All important decisions of the Board are published on the Decisions page. 
    • You can consult the Board’s performance statistics for more information on the average time it takes the Board to issue a decision after a complaint is filed.

    What can the Board order if the application to appeal is successful?

    • The Board can:
      • confirm (agree with) the decision;
      • rescind (overturn) the decision; or 
      • vary (change) the decision. 
    • If the employee is successful, the Board will order that the employer pay the employee the wages or amounts found to be owing.
    • If the employer is appealing a Review Decision concerning a Payment Order and the appeal is successful, the Board will order that the amount paid to the Labour Program when the request for review was filed be returned to the employer. The administrative fee will be recalculated, and any overpayment will be returned. 
    • If the employer is appealing a Review Decision concerning a Payment Order and the appeal is not successful, the Board will order that the amount paid to the Labour Program when the request for review was filed be paid to the employee. The Labour Program will keep the administrative fee.

    Is the Board’s decision final?

    The Board’s decisions are final and can only be reviewed in very specific circumstances.

    • If you believe that a Board decision is unreasonable, you can apply to the Federal Court of Appeal for judicial review; or
    • If you believe the Board has made a serious error and should correct its original decision, you can file an application for reconsideration.

    In both cases, there is a strict 30 calendar day deadline to file your application from the date of the decision.

    Follow these links for more information on Applications for Reconsideration and Applications for Judicial Review.