Feb 14, 2019

Severance Pay Calculation Under Employment Standards Act based on Ontario Payroll says OLRB

Under section 64 of the Employment Standards Act (“ESA”), an employee with five years’ service is entitled to one week severance pay for each year of service (to a maximum of 26 weeks) in addition to notice of termination if “the employer has a payroll of $2.5 million or more.”

Decision Counting Non-Ontario Payroll

Since a 2014 decision of the Ontario Superior Court, Paquette v. Quadraspec Inc.,  there has been uncertainty as to whether the word payroll means Ontario payroll or the employer’s total payroll in all jurisdictions. In this decision, the court considered the employer’s Canadian payroll. This meant the employee was entitled to severance pay.

Decision Not Counting Non-Ontario Payroll

In a recent decision, Doug Hawkes v. Max Aicher (North America) Limited, the Ontario Labour Relations Board (the “OLRB”)  refused to follow this 2014 decision and followed earlier decisions and concluded that the word “payroll” in the severance pay provision of the ESA means Ontario payroll and not the employer’s global payroll. This meant the employee was not entitled to severance pay.

A Possible Solution

In 2015, after and because of the uncertainty created by the Pacquette decision, I recommended that the definition of payroll be clarified with an amendment to the ESA to the Special Advisors who were reviewing the Employment Standards Act. No such amendment was included in the recent changes to the ESA (i.e., Bills 148 or 47).

The Current State of the Law

Because the Pacquette and Hawkes decisions are at odds, it is difficult for employment lawyers to advise on this issue other than to say the OLRB has one interpretation of payroll, and the Ontario Superior Court has conflicting decisions on this issue.

If your organization’s payroll in Ontario is under $ 2.5 M but you have payroll in other jurisdictions that would bring your total payroll over $ 2.5M, then consider calling an Ontario employment lawyer to find out the current state of the law on this issue.


Recent Posts

Toronto Office

702 - 2 Bloor Street West,
Toronto, ON M4W 3E2

Barrie Office

277 - 92 Caplan Avenue,
Barrie, ON L4N 9J2

Collingwood Office

220 - 1 First Street
Collingwood, ON
L9Y 1A1



+1 (888) 640-1728


(866) 883-8445


[email protected]

Toronto Office

702 - 2 Bloor Street West, Toronto ON M4W 3E2

Barrie Office

277 - 92 Caplan Avenue, Barrie ON L4N 9J2

Collingwood Office

220 - 1 First Street, Collingwood, ON L9Y 1A1


Subscribe To Our Newsletter

Join our mailing list to receive the latest news and updates from our team.

You have Successfully Subscribed!