Evidence & Burden of Proof - Act Part 14, Section 126
This section explains what types of documentation are considered as evidence and when it is the employer’s burden to prove the Act has not been contravened.
126 (1) The production of a cheque, bill of exchange or order to pay on which is marked "Pursuant to clearing rules, this item must not be cleared again unless certified", or other words signifying that payment was not made by a savings institution, is evidence that payment was not made.
(2) A copy of a document issued under this Act by the minister or the director, and certified by the director as a true copy, is, without proof of the director's appointment or signature,
(a) evidence of the document, and
(b) evidence that the person issuing the document was authorized to do so.
(3) Subsection (2) applies also in respect of a copy of a document issued under this Act by the tribunal and certified by the registrar of the tribunal as a true copy.
(4) The burden is on the employer to prove that,
(a) in the case of an alleged contravention of section 9(2)(a), an employee is 14 years of age or older,
(b) in the case of an alleged contravention of section 9(2)(b), an employee is 16 years of age or older,
(b.1) in the case of an alleged contravention of section 9.1(2), an employee has attained the prescribed age in respect of the applicable hazardous industry or hazardous work, or
(c) in the case of an alleged contravention of Part 6, an employee’s pregnancy, a leave allowed by this Act or court attendance as a juror is not the reason for terminating the employment or for changing a condition of employment without the employee’s consent.
If an employee provides an NSF cheque to the director it will be accepted as evidence that payment of wages was not made. The burden is on the employer to prove the employee has been paid.
Subsection (2) and (3)
Sections 126 (2) and (3) simplify the evidentiary requirements of enforcement or appeal procedures. This section allows documents, certified as a true copy by the director, to serve as evidence. If the Employment Standards Tribunal issued the document, then the registrar of the tribunal will certify the document as a true copy. Once certified as a true copy, the “true” document can substitute for the original. This document is also evidence that the person issuing the document had the authority to do so.
The director issues determinations pursuant to s.79 (3) of the Act if satisfied that a person has contravened a requirement of the Act or Regulation.
In most cases, the facts required to establish a contravention of the Act must be proven, on a balance of probabilities. There are exceptions to this requirement whereby the burden of proof lies with the employer, as follows:
- Where it is alleged that the age of a child is 14 or 15 years of age and written consent for the child to perform light work was not obtained from the child’s parent or guardian in accordance with s.9(2)(b) of the Act, the employer is required to prove that the child is at least 14 years of age.
- Where it is alleged that the age of a child is under 14 years of age and the director has not granted permission for employment of the child in accordance with s.9(2) of the Act, the employer is required to prove that the child is at least 14 years of age.
- Where it is alleged that there has been a contravention of Part 6, Leaves and Jury Duty, the employer is required to prove that an employee’s employment was not terminated or a condition of employment was not changed without the employee’s consent because of one or more of the following:
- an employee was pregnant;
- an employee was on an authorized leave under this Act;
- an employee was attending court as a juror.
Related sections of the Act or Regulation
- s.1, Definition “director”
- s.9, No hiring of children under the age of 15 without director’s permission
- s.50, Pregnancy leave
- s.51, Parental leave
- s.52, Family responsibility leave
- s.52.1, Compassionate care leave
- s.52.2 Reservists’ leave
- s.52.3 Leave respecting disappearance of child
- s.52.4 Leave respecting death of child
- s.52.5 Leave respecting domestic violence
- s.52.11 Critical illness or injury leave
- s.53, Bereavement leave
- s.54, Duties of employer
- s.55, Jury duty
- s.56, Employment deemed continuous while employee on leave or jury duty
- s.63, Liability resulting from length of service
- s.79, Determination
- s.83, Employee not to be mistreated because of complaint or investigation
- s.117, Director’s power to delegate