In a ruling that highlights the jurisdictional limitations of the Employment Standards Act (ESA), the Ontario Labour Relations Board (OLRB) has dismissed a claim by a worker who performed services for an Ontario-based company while physically located outside the province.
The case involved J.P., a citizen of Czechia who claimed he was employed as “Global Chief Technology Officer and Head of the Singapore Office” of an Ontario company, Cure Data Inc., from March to August 2023. J.P. alleged numerous ESA violations, including unpaid wages, overtime, vacation pay, termination pay, and severance pay.
Jurisdictional test
The central issue before the tribunal was whether Ontario’s ESA applied to J.P., who admitted he was never physically present in Ontario during the alleged employment period, despite participating in electronic meetings with Cure Data personnel in Ontario.
The tribunal focused on section 3(1) of the ESA, which states that employment standards apply to an employee and employer if:
(a) the employee’s work is to be performed in Ontario; or (b) the employee’s work is to be performed in Ontario and outside Ontario but the work performed outside Ontario is a continuation of work performed in Ontario.
Applicant’s arguments
J.P. argued he had an implied contract of employment with Cure Data that should be governed by Ontario law. He contended that the purpose of section 3(1) is “to prevent jurisdictional conflicts and double coverage issues” and that the ESA aims “broadly to protect workers from falling through the cracks of legal protections.”
He further argued that “the ESA’s goal is to shield employees from losing basic protections due to the geography of work,” and that “the legislature could not have intended that an Ontario-based worker to lose [sic] by virtue of working in a country with inferior labour laws.”
J.P. urged the tribunal to “apply the law of the jurisdiction with the closest connection to the employment,” which he argued was Ontario, where his employer was based.
Employer and Director’s responses
Cure Data argued that section 3(1) clearly requires an employee’s work to be performed at least partly in Ontario for the ESA to apply. The company emphasized that the provision does not reference employment with an Ontario-based employer as a jurisdictional criterion.
Counsel for the Director of Employment Standards argued that section 3(1)(b) would only apply if J.P. had worked both inside and outside Ontario. The Director noted that factors such as the jurisdiction of Cure Data’s incorporation, its headquarters location, contract contents, and J.P.’s alleged lack of protection under Singapore law were irrelevant to determining jurisdiction.
Tribunal’s decision
The tribunal rejected J.P.’s arguments, concluding that “the Act, as currently written, requires an employee to have had some degree of physical presence in Ontario to access statutory minimum employment standards.”
Applying the “modern principle” of statutory interpretation, the tribunal found that both branches of section 3(1) require the employee to have been physically present in Ontario at some point.
“The ordinary (and perhaps sole) sense of the word ‘in’ is ‘physically present,'” the tribunal wrote. “That simple English word does not take on any shades of meaning based on the employer’s head office location, jurisdiction of incorporation of the employer or the degree of parity between the employment standards in Ontario and any other jurisdiction in which the work is performed.”
Because J.P. was never physically present in Ontario during his alleged employment, his work was neither performed in Ontario nor a continuation of work performed in Ontario. The tribunal noted there was no “back and forth” required to satisfy section 3(1)(b).
Board acknowledges limitations in modern work environment
While declining to expand the ESA’s jurisdiction, the tribunal acknowledged the challenges posed by remote work in the global economy. The decision cited a recent ruling (Podder v Solvezit Business Management) which noted:
“In the modern economy employees of Ontario companies frequently work from home or from different locations in Canada or elsewhere in the world for varying periods of time… What is more difficult is whether an employer… chooses to directly employ workers from outside of Canada who never come to Ontario.”
That case similarly found a jurisdictional gap, noting the employee “finds himself in something of a gap. The Act does not apply even though he did all of his work for an Ontario based employer, and, according to what he was told, he cannot obtain a remedy in [his location]. This is unfortunate.”
Prior cases reinforce geographic test
The tribunal cited several precedents supporting its interpretation, including:
- Zhang v IBM Canada Ltd. (2019), where an employee who moved from Ontario to British Columbia and continued working remotely was found to no longer fall under the ESA’s jurisdiction
- Karpowicz v Valor Inc. (2016), where an employee based in Michigan who visited Ontario occasionally was found to be outside the ESA’s application despite an Ontario choice-of-law clause in his employment contract
- Shearing v James Way Construction Inc. (2007), where the ESA was found to apply to an employee who regularly traveled between Ontario and Michigan
The tribunal concluded that section 3(1) creates a “bright line test” allowing efficient determination of jurisdiction, acknowledging this may leave some workers without ESA protections despite connections to Ontario-based employers.
For more information, see Jiri Pik v Cure Data Inc., 2025 CanLII 38289 (ON LRB).
