Unpaid Wages and Commissions in Ontario: How to Get What You're Owed

Your employer is legally required to pay you for work you've performed. That sounds simple, but unpaid wages and commissions are among the most common workplace disputes in Ontario. Whether your employer is shorting your regular pay, refusing to pay commissions you've earned, or misclassifying overtime, you have legal tools available — and the choice between them matters.

What Counts as "Wages" Under Ontario Law?

The Employment Standards Act, 2000 defines wages broadly. In addition to base hourly or salary pay, "wages" under the ESA can include:

• Commissions and bonuses that form part of your agreed compensation
• Overtime pay — the ESA requires premium pay (generally 1.5x regular rate) after 44 hours per week for most employees, as of writing; verify current thresholds
• Public holiday pay if you worked a statutory holiday without proper premium pay or a substituted day off
• Vacation pay — the ESA sets a minimum vacation pay entitlement as a percentage of your wages; verify the current rate

Note that purely discretionary bonuses — those entirely within an employer's unfettered discretion with no target formula — may not constitute "wages" in the ESA sense. But what employers call "discretionary" is often not truly discretionary in law. If a bonus is tied to a formula, targets, or expectations, courts and the Employment Standards Officer may treat it as earned compensation.

The Commission Problem: When Is a Commission "Earned"?

Commission disputes are particularly common because:

1. The commission structure may be poorly documented. Verbal promises, vague emails, or ambiguous commission plans are a breeding ground for dispute.
2. The employer terminates you before commission is "paid out." Many commission plans contain language about commissions being payable only if you are "actively employed" at the time of payment. Ontario courts and the ESA have scrutinized such clauses.
3. The employer claims the deal "fell through" after your termination. Whether you're owed commission on a deal you originated but that closed after you were let go depends heavily on the commission agreement's language and the circumstances.

The key principle: once a commission is earned (typically when you close a deal or bring in the client), your right to receive it generally cannot be stripped away by subsequent events that are within the employer's control. A clause that says you lose commissions the moment you're terminated — even for deals you closed — is suspect under Ontario law and may be unenforceable.

Two Paths to Recovery

Path 1: ESA Complaint (Ministry of Labour)

You can file a complaint with the Ontario Ministry of Labour if your employer has failed to pay wages owed under the ESA. An Employment Standards Officer investigates and can order the employer to pay.

Advantages:

• Free to file
• No need to hire a lawyer
• The government does the enforcement work
• Officers have powers of investigation

Limitations:

• Generally limited to ESA-covered wages and ESA-defined amounts
• There are time limits (typically claiming back a limited period — verify current limits)
• If you've accepted a settlement or signed a release, it may preclude an ESA complaint
• Cannot recover common-law damages (e.g., for the value of commissions beyond ESA minimums, or moral damages)

Path 2: Civil Court Claim

For most commission and wage disputes involving larger amounts or common-law elements, a civil claim in Small Claims Court (for amounts within its monetary jurisdiction, as of writing up to $35,000 — verify the current limit) or Ontario Superior Court of Justice is the more powerful option.

Advantages:

• Can recover the full value of wages, commissions, and damages not covered by the ESA
• Can recover for breach of contract (if your commission agreement was a contractual right)
• Potentially broader limitation periods for some causes of action
• More flexibility in what evidence and arguments you can advance

Trade-offs:

• Legal fees apply (although flat-fee representation limits cost predictability concerns)
• You generally cannot also file an ESA complaint for the same wages once you commence a civil claim
• The process takes longer

For most employees with commission claims above a few thousand dollars, a civil claim is typically the stronger route.

Employer Defences to Watch For

Employers routinely raise a few arguments in wage and commission disputes:

• "The commission plan was discretionary." See above — discretionary language is not always decisive.
• "You didn't meet the performance conditions." If the conditions were clearly communicated and you didn't meet them, this can be a valid defence. If they were applied retroactively or inconsistently, it may not be.
• "You signed a commission agreement that said..." Commission agreements are contracts. Their enforceability and interpretation depend on drafting, context, and the circumstances of signing. Ambiguous language is generally interpreted against the party who drafted it.
• "The deal closed after you left." As above, Ontario courts look at when the commission was earned, not just when it was payable.

Time Limits

Ontario's general limitation period for civil claims is two years from when you knew or ought to have known you had a claim. ESA complaints have their own time limits — verify current windows at ontario.ca. Don't assume you have unlimited time.

Frequently asked questions