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Legal Gifts for the Holidays: Breaches of the Employment Standards Act Cannot Be Pursued in BC Courts

In the spirit of the season, our December blog posts provide “legal gifts” for employers. Last week, we confirmed that occasional flexibility in start times does not create a contractual right to start work later. This week, our legal gift comes from the British Columbia Supreme Court decision of Belanger v. Tsetsaut Ventures Ltd., 2019 BCSC 560, where the Court confirmed that in British Columbia, employees cannot pursue civil claims for alleged breaches of employment standards legislation. Rather, exclusive jurisdiction for employment standards complaints rests with the Director of Employment Standards.

In Tsetsaut Ventures, a group of employees brought a civil claim alleging that their former employer breached numerous sections of the Employment Standards Act (the “ESA”), including the requirement to provide severance, overtime and holiday pay. In addition, the employees claimed that their employer breached section 83 of the ESA by threatening to dismiss them if they exercised their rights pursuant to the ESA. The Court confirmed the decision of the BC Court of Appeal in Macaraeg v. E Care Contact Centers Ltd., 2008 BCCA 182, that:

The ESA provides a complete and effective administrative structure for granting and enforcing rights to employees. There is no intention that such rights could be enforced in a civil action.

The employees in Tsetsaut Ventures also asserted an independent tort of intimidation based on the employer allegedly threatening to terminate their employment agreements if they exercised their statutory rights. The Court refused to extend the tort of intimidation to a threatened breach of an employment agreement since a civil action for breach of contract for wrongful dismissal, and the statutory remedies in the ESA, provide employees with adequate remedies.

This decision is an excellent outcome for employers because it confirms that breaches of ESA provisions, such as overtime, holiday pay, vacation, and statutory leaves of absence, cannot be pursued in court. This outcome is particularly important for overtime because, unless an employment contract expressly contains a right to overtime, employees in BC cannot pursue unpaid overtime claims in a civil action. Further, this decision confirms that ESA complaints are limited to the one year limitation period in the ESA, as opposed to a two year limitation period for civil claims.

Stay tuned to next week’s blog post for another “legal gift” for the holidays.

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Lawson Lundell's Labour and Employment Law Blog provides updates on the most recent legal developments impacting the Canadian workplace and offers practical tips for employers. We cover a range of topics, including labour relations, employment law, collective bargaining, human rights, employment standards, employment equity, workers' compensation, business immigration, privacy, occupational health and safety and pensions and employee benefits. 

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