Apr 21, 2019

BC Employment Standards Act breaches cannot be pursued through civil actions

Belanger v Tsetsaut Ventures Ltd., 2019 BCSC 560 (CanLII)

Summary: Claims founded on breaches of the BC Employment Standards Act must be addressed using the enforcement mechanisms set out in the Act.

Background: A group of employees brought a civil action against their former employer in BC Supreme Court. The employees alleged the following:

  1. Section 63 breach: After their termination, the employer failed to provide adequate severance pay to the employees in accordance with section 63 of the Employment Standards Act;
  2. Section 83 breach: Months prior to their termination, the employer threatened to fire the employees if they sought to enforce their rights to overtime, holiday, and vacation pay, in breach of section 83 of the Employment Standards Act; and
  3. Tort of intimidation: The employer’s threats to terminate the employees, in breach of the Employment Standards Act, was tortious, meeting the test for the tort of intimidation.

The employer argued that each of these claims could not brought to court. Instead, each of these claims were based on breaches of the Employment Standards Act and were within the exclusive jurisdiction of the Director of Employment Standards.

The employees did not make complaints to the Director of Employment Standards.

Decision: The Court determined that the employees’ claims could not be made in a civil action regardless of whether the facts were proven. Claims founded on breaches of the Employment Standards Act must be addressed using the enforcement mechanisms set out in the Act.

The Court followed the BC Court of Appeal’s decision in Macaraeg v. E Care Contact Centers Ltd., 2008 BCCA 182, which held that claims under the Employment Standards Act cannot be brought through a civil claim. Rather, claims founded on breaches of the Employment Standards Act must be addressed using the enforcement mechanisms set out in that Act:

[102] When a statute provides an adequate administrative scheme for conferring and enforcing rights, in the absence of providing for a right of enforcement through civil action expressly or as necessarily incidental to the legislation, there is a presumption that enforcement is through the statutory regime and no civil action is available.

[103] In this case, 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’ claims were all dismissed on that basis that they were outside of the Court’s jurisdiction. The Employment Standards Act already provides adequate remedies for those claims. With respect to each of the claims, the Court held the following:

  1. Section 63 breach: “The exclusive jurisdiction to determine that claim is through the complaint process pursuant to the provisions of the ESA…”
  2. Section 83 breach: “The reasoning in Macaraeg applies to allegations of breach of s. 83. I find the ESA provides a complete and effective administrative structure for enforcing rights under s. 83, and that an alleged breach of these rights cannot be enforced in a civil action…”
  3. Tort of intimidation: “There is no compelling reason to extend the tort of intimidation to a threatened breach of an employment contract where both a civil action for breach of contract for wrongful dismissal and the statutory remedies conferred by the ESA, afford the Employees an adequate remedy…”

With respect to the latter two claims, the court noted that section 79(2) of the Employment Standards Act already provides suitable remedies (including unpaid wages and pay in lieu of reinstatement) if an employer retaliates against an employee who seeks to enforce his or her rights under the Act.

The Court did not need to decide whether the employees' allegations against the defendant were true.

Author: Brendan Harvey is an employment lawyer in Vancouver, BC practicing on the North Shore with Yeager Employment Law. For more employment and litigation related news, follow Brendan on Twitter.