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Can a commissioned employee in Ontario take more vacation days off than offered?

Expert: Jane Southren

Joe asked:

As a fully commissioned employee in Ontario, is there a limit to unpaid vacation days or time off I can take? Example: Employer offers three weeks vacation pay and I want to take an additional three weeks off unpaid.

Jane Southren answered:

The upper limit on vacation days that can be taken, paid or unpaid, lies in the terms of the contract between employer and employee. It isn't regulated by provincial statutes.

The employee (commissioned or otherwise) would have to negotiate with the employer and reach an agreement that the employee can take the time he wants off work and for which portion of it he will be paid.

The employee cannot unilaterally take three weeks off work, using the justification that he isn't being paid for it, and assume the employer is bound by that. Failing to show up to work in circumstances where the employer hasn't agree to it or acquiesced (when there is no other justification, like a health issue etc.) could, and likely would, be interpreted as a resignation.

About the author

Jane practises as a civil litigator, with a focus in the areas of employment law, breach of contract, professional negligence and dispute resolution strategies. Having completed both her LLB and JD degrees from the law schools of the University of Windsor and the University of Detroit (Mercy) in 1995, Jane was called to the Ontario Bar in 1997, invited into the partnership of McDonald & Hayden LLP in Toronto in 2001.

In 2005 she joined Lerners LLP where she is now a partner in its commercial litigation group. Jane has appeared as counsel before the Superior Court of Justice, the Ontario Court of Appeal and a number of administrative tribunals. She is a member of The Advocates' Society and has participated in numerous legal and professional education programs, including acting as an instructor in the Ontario Bar Admission Course. During the course of her career, Jane has authored numerous articles in her areas of practice, including a regular column in the Advocates’ Brief, in which she offers practical advice and guidance to newer lawyers on subjects relating to their areas of practice.

Jane can be contacted by telephone at 416-601-4128 or via e-mail at

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