May 24, 2024

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Ontario’s Work Criteria Act Exempts Specified Company and Information Technology Consultants, if Problems Are Achieved | Ogletree, Deakins, Nash, Smoak & Stewart, P.C.

As of January 1, 2023, specific “business consultants” and “information technological innovation consultants” in Ontario have been exempt from the Employment Standards Act, 2000 (ESA). These exemptions are element of the numerous amendments made to the ESA subsequent the enactment of Bill 88, Working for Employees Act, 2022.

Beneath the ESA, a “business consultant” is “an personal who provides suggestions or providers to a enterprise or group in respect of its efficiency, including tips or providers in regard of the functions, profitability, administration, composition, procedures, finances, accounting, procurements, human sources, environmental impacts, marketing, chance management, compliance or tactic of the company or group.”

An “information technologies consultant” is “an particular person who gives tips or products and services to a organization or organization in respect of its information and facts technological know-how devices, such as suggestions about or services in regard of arranging, coming up with, analyzing, documenting, configuring, establishing, screening and putting in the small business or organization’s facts technological innovation units.”

A small business guide or information and facts technological know-how consultant will be excluded from the ESA if they meet up with all four of the situations below:

  1. The expert offers expert services via both:
    1. a corporation in the ability of a director or shareholder who is a get together to a unanimous shareholder agreement or
    2. a sole proprietorship, by which the guide provides services using a business enterprise name registered below the Small business Names Act.
  2. The consultant’s providers are furnished as a result of a written arrangement that sets out the total of pay back owed to the marketing consultant, and the timing of this sort of payment. The payment itself “must be equal to or increased than $60 for every hour, excluding bonuses, commissions, expenditures and travelling allowances and positive aspects, or these other sum as may possibly be recommended, and have to be expressed as an hourly price.”
  3. The consultant is paid out in accordance with the conditions contained in a published agreement.
  4. The specialist meets “[s]uch other specifications as may possibly be approved.”

As of January 1, 2023, people who may perhaps have beforehand been issue to the provisions of the ESA may perhaps now be exempt if they meet up with the definition of “business consultant” or “information technology consultant,” as perfectly as all four requirements prescribed in the ESA.

Ontario employers might want to assessment the definitions above to figure out regardless of whether people at present addressed as matter to the ESA might be exempt. Exempt persons are not subject matter to the ESA’s bare minimum specifications and protections with respect to hours of function, overtime, leaves of absence, and termination entitlements, amongst other provisions.