Employment Standards Claims Cannot be Pursued in B.C. Courts

November 2019

Article by: Danny Bernstein

Previously published by The Lawyer’s Daily, a division of LexisNexis Canada

A recent summary trial decision from the B.C. Supreme Court confirms that claims arising from breaches of the B.C. Employment Standards Act (ESA) cannot be pursued in a civil action and denies the application of the tort of intimidation to a threatened breach of an employment contract.

In Belanger v. Tsetsaut Ventures Ltd. 2019 BCSC 560, a group of employees brought a civil action against their employer for damages flowing from breaches of the ESA and damages arising from the tort of intimidation. The employer brought the summary trial application to dismiss the action.

The employer is a mining support services firm that requires employees to travel to and work in remote locations in B.C. All the employees worked at the underground Brucejack Mine in northwestern B.C.  As the mine is far from any nearby town or city, the employees operated under 28-day work cycles, consisting of: a travel day to the mine, 14 days of 12-hour shifts and a travel day from the mine followed by 12 days off.

In the summer of 2017, the employer sought to obtain a variance from the operation of the overtime requirements of the ESA. Part 9 of the ESA allows the director of employment standards to vary the applicability of certain provisions upon the application of an employer demonstrating the variance is not inconsistent with the purposes of the ESA and consent from the majority of employees. The employer obtained consent from 84 per cent of its employees and the director granted the variance on Oct. 1, 2017.

Unfortunately, the employer’s contract with the mine owner was not renewed in the spring of 2018. The employer had no further need for this workforce and terminated the employment of each of the employees. The employees jointly filed their notice of civil claim shortly thereafter. The employees alleged that the employer threatened to fire anyone who pursued outstanding statutory entitlements at the time that the variance was sought and alleged that the employer failed to provide them with their respective ESA severance pay entitlements.

In considering the claim of the employees, the court reviewed the B.C. Court of Appeal’s decision of Macaraeg v. E Care Contact Centers Ltd. 2008 BCCA 182. In particular, the court quoted and added the following underline emphasis to the ensuring paragraphs in Macaraeg:

“ [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.”

Relying on Macaraeg, the court dismissed the employees’ claim for damages flowing from breaches of the ESA. The court effectively concluded that the employees should have pursued these claims by filing complaints with the Employment Standards Branch.

With respect to the employees’ claim for damages flowing from the tort of intimidation, the court began by reviewing the elements of the tort as set out by the Ontario Court of Appeal in Tran v. University of Western Ontario 2015 ONCA 295:

“[23] The tort of intimidation requires: a threat by the defendant to commit an unlawful act; an intention by the defendant that injury will result to the plaintiff; submission to the threat by the plaintiff; and actual damage suffered by the plaintiff: Kisin v. Netron, 2000 Carswell Ont 1149, at para. 23 (S.C.), see also Roehl v. Houlahan (1990), 75 O.R. (2d) 482, leave to appeal to S.C.C. refused,[1990] S.C.C.A. No. 518 and Central Canada Potash Co. v. Saskatchewan, [1979] 1 S.C.R. 42. …”

After noting that counsel for either party were unable to locate any cases in which the tort was applied in an employment situation, the court held there was no reason for the tort to apply to a threatened breach of an employment contract. It concluded that a civil action for wrongful dismissal and statutory remedies under the ESA afforded employees adequate remedies for the harm associated with such a threatened breach.

In the decision, the court noted that the employees had not made a complaint to the Employment Standards Branch. In addition to having their civil action dismissed, the employees likely had difficulty filing respective complaints with the Employment Standards Branch for recovery of the same ESA breaches because of statutory time limits.

Takeaways for counsel

  • Consider whether a statutory regime provides for the enforcement of a statutory right before filing your claim with a B.C. court or when responding to a civil claim.
  • Inform your employer clients about the risks and rewards associated with applying for a variance pursuant to Part 9 of the ESA and ensure its communication to employees about an application is devoid of any threats or undue pressure.
  • Be mindful of the ability of the Director of Employment Standards to investigate your employer clients for compliance with the ESA.
  • Review s. 74 of the ESA for an overview of the statutory deadlines to file an ESA complaint.