Unpaid wages or termination pay in Ontario: Ministry of Labour claim or lawsuit?

You usually have to choose. Filing an Employment Standards Act claim for unpaid wages bars a lawsuit for the same wages, and a claim for termination or severance pay bars a wrongful dismissal lawsuit about the same job loss, unless you withdraw the claim within two weeks. Starting a lawsuit first bars the ESA claim. A lawsuit can recover more than the ESA minimums.

The choice matters most for people who were let go, because the ESA only gives minimum notice and severance, while a court can award more under an employment contract or the common law. For unpaid wages alone, the ESA claim is often the practical route. This guide sets out how each route works, how they block each other, and the deadlines. It is written for employees in Toronto and York Region, including newcomers and Persian-speaking workers in family businesses, restaurants, construction, clinics and offices. Our main page on employment disputes covers the wider picture.

How do the two routes compare?

How do the two routes block each other?

The rules are about "the same matter" or "the same termination". An ESA claim about unpaid vacation pay does not, by its wording, stop a separate claim about something else. Because the line is not always obvious, decide the route before filing anything. The province's own claim page says the ESA rules are minimum requirements, that you may have greater rights under a contract, a collective agreement, the common law or other legislation, and that you may wish to contact a lawyer if you have questions about your entitlements.

What happens after an ESA claim is filed?

An employment standards officer investigates. If the officer finds wages owing, the officer may arrange for the employer to pay you directly, order the employer to pay you, or order payment to the Director in trust, with an administrative cost of the greater of $100 and 10 per cent of the wages (s. 103(1), (2)). For reprisal and leave breaches, the officer can order compensation, reinstatement, or both (s. 104(1)). Either side can seek a review of an order by the Ontario Labour Relations Board within the time allowed; an employer seeking review of a wage order must first pay the amount or provide a letter of credit (s. 116(1), (2)). An order the employer does not challenge in time becomes final and binding (s. 103(9)).

Two time rules apply. A complaint about a contravention more than two years before filing is deemed not filed (s. 96(3)), and an officer cannot order wages that became due more than two years before the complaint (s. 111(1)). The province's claim page puts it plainly: generally, you must file within two years of the alleged violation.

What can an ESA claim cover?

The province's claim page gives examples of ESA violations: failing to pay the correct rate of pay, public holiday pay, vacation pay or other wages; not giving time off for an entitled leave of absence, or penalizing an employee for taking one; and not providing wage statements or other required documents. Termination pay and severance pay are also ESA entitlements, and so is protection against reprisal for asking about or exercising ESA rights (s. 74). Most employees working in Ontario are covered, but some are not, and some have special rules or exemptions, which the province explains in its guide to special rules.

Some problems are outside the ESA altogether. A bonus or commission promised in a contract above the ESA minimums, or damages for the way a dismissal was handled, generally have to be pursued in court. That is why the choice of route depends on everything you are owed, not only the unpaid wages.

What about discrimination at work?

Ontario's Human Rights Code gives every person a right to equal treatment in employment without discrimination because of grounds that include place of origin, ethnic origin, citizenship and creed, as well as family status, disability, sex and age (s. 5(1)). It also protects the right to claim and enforce those rights without reprisal (s. 8). A human rights application goes to the Human Rights Tribunal of Ontario and must be made within one year after the incident, or the last in a series, unless the Tribunal accepts a good-faith delay that causes no substantial prejudice (s. 34(1), (2)). That one-year deadline is shorter than the ESA and court deadlines, so if you think your national or ethnic origin or your faith played a part, raise it early.

If your case does reach a court and you need a Persian interpreter, note that in Small Claims and other civil cases the province provides one only with a fee waiver or a court order; our guide to Farsi interpreters in Ontario courts explains the rules.

What changes the answer?

• What you are owed. Pure wage claims often suit the ESA route; termination claims may be worth more in court (ontario.ca ESA guide; ss. 97, 98).
• Your contract. A greater contractual benefit applies instead of the ESA standard (s. 5(2)), but generally has to be enforced in court.
• The amount. Small Claims Court hears claims up to $50,000 since October 1, 2025; larger claims go to the Superior Court.
• Timing. Two years for an ESA claim (s. 96(3)) and generally two years for a lawsuit (Limitations Act s. 4).
• Reprisal. If you were let go for asserting ESA rights, the ESA claim can lead to reinstatement or compensation (s. 104); see reprisal under the ESA.
• Your status. Foreign nationals working through immigration or temporary foreign worker programs also have rights under the Employment Protection for Foreign Nationals Act, with a three-and-a-half-year time limit for those claims, according to the province's claim page.
• A union. Where a collective agreement applies, the ESA is enforced through it (s. 99).

A worked example

For example, imagine a cook in North York who worked four years at a restaurant owned by a family friend. In his last six months he was paid in cash, often late and short, and then told not to come back. He has no written contract. This is a hypothetical walk-through of the rules, not a description of any real case or result.

He is owed unpaid wages and, after four years, four weeks of ESA termination pay (s. 57(d)). An ESA claim for both is free and can be filed online; if the employer does not pay, the officer can order it. But if he believes a court would award more than four weeks for the dismissal, filing an ESA claim for termination pay would stop him from suing for wrongful dismissal over the same termination, unless he withdraws it within two weeks (s. 97(2), (4)). One option is to bring the unpaid wages through the ESA and decide on the dismissal claim with advice before filing it. He keeps his text messages and any record of hours and cash payments, which are his evidence either way, and translates any Persian messages he plans to rely on.

What mistakes do people make choosing a route?

1. Filing an ESA claim for termination pay without advice. It can end a larger wrongful dismissal claim.
2. Missing the two-week withdrawal window. After two weeks, the ESA claim stays the route (s. 97(4)).
3. Waiting too long. Wages more than two years old cannot be ordered (s. 111(1)).
4. Not keeping records. Pay stubs, schedules, messages and bank deposits prove what was paid.
5. Assuming cash work is not covered. The province says most employees working in Ontario are covered by the ESA; its guide explains the exceptions and special rules.
6. Suing for more than $50,000 in Small Claims Court. Amounts above the limit belong in the Superior Court.

What to do this week

1. List what you think you are owed: wages, vacation pay, public holiday pay, termination and severance pay.
2. Gather pay stubs, bank records, schedules and messages; arrange translations of anything in Persian you rely on.
3. Note the date of each unpaid amount and of your termination; count two years forward from each.
4. Find any employment contract or offer letter.
5. Decide the route with advice before filing an ESA claim or starting a lawsuit.
6. Book a consultation; you can discuss your matter in English, Persian (Farsi) or French.

Frequently asked questions

Does it cost anything to file an ESA claim?

The province's claim page describes filing online or by the PDF form and does not mention a filing fee. If an officer orders payment to the Director in trust, the employer must also pay an administrative cost (s. 103(2)).

Can I file an ESA claim after I have quit?

Yes, if you file within the time limits. The two-year rules apply from the contravention (ss. 96(3), 111(1)).

Can my employer punish me for filing a claim?

No. Penalizing an employee for filing a complaint is a reprisal prohibited by s. 74, and the employer bears the burden of proving it did not contravene the section (s. 74(2)).

What if my employer goes out of business?

An order can still be made against the employer, but collecting may be harder. Ask about this early, before choosing a route.

Which court hears a wage or dismissal lawsuit?

Claims up to $50,000 can go to Small Claims Court, the limit since October 1, 2025; our Small Claims Court page explains that court. Larger claims go to the Superior Court of Justice, described on our civil litigation page.

Where can I get help with the forms?

The province's claim page lists online filing, a claimant portal to check status and upload documents, and the PDF form. For advice on which route fits your case, book a consultation.

Related questions

If you received a package with a release, read what to check before you sign a severance offer. Persian-speaking clients can read our frequently asked questions about consultations in Persian. Our other guides are listed on the services page.

Sourena Sarbazevatan is a Persian-speaking lawyer, and you can discuss unpaid wages or a dismissal with him in Farsi, English or French. Call +1 (416) 628-2041 or use the contact page.