The Director of Employment Standards sought judicial review of Ontario Labour Relations Board decisions regarding the calculation of overtime pay for commissioned salespersons under the Employment Standards Act.
The Divisional Court upheld the Board's interpretation that the 'regular rate' for calculating overtime is based only on commissions earned during non-overtime hours.
However, the Court found the Board erred in allowing the employer to reconcile weeks where it paid more than the statutory minimum for overtime against weeks where it underpaid.
The application was allowed in part and remitted to the Board for recalculation.
