Although brevity is almost always better than wordiness, it would have been better if the legislature had used a few more words in the severance pay provisions of Ontario’s Employment Standards Act, 2000. Under the ESA, employers with a payroll of at least $2.5 million are required to provide statutory severance pay when dismissing an employee with 5 or more years of service. Unfortunately the provision is silent as to whether payroll within Ontario or, rather, global payroll is determinative. It would have been helpful if the drafters had indicated where, exactly, to draw the line.
The pendulum has swung back and forth on this issue. Most recently, the Ontario Labour Relations Board (“OLRB”) held that Ontario-only payroll is determinative, diverging from the direction previously taken by the Ontario Superior Court of Justice. We outline the key cases to date below.