Remedies in Employment Law (9:VI) - Revision history

LSLAP at 19:10, 13 October 2025

2025-10-13T19:10:22Z

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	{{LSLAP Manual TOC\|expanded = employment}}		{{LSLAP Manual TOC\|expanded = employment}}

LSLAP: /* B. Provincial (Small Claims) Court */

2025-10-01T04:24:46Z

B. Provincial (Small Claims) Court

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	The Small Claims approach can often get better results than claims filed with the Employment Standards Branch, particularly for cases involving termination of employment. However, civil court will not rule on a matter that is to be decided by the Branch.		The Small Claims approach can often get better results than claims filed with the Employment Standards Branch, particularly for cases involving termination of employment. However, civil court will not rule on a matter that is to be decided by the Branch.

	Employees may be prevented from directly enforcing rights under the ESA in civil court, and must instead use the Employment Standards Branch to enforce these rights (''[https://canlii.ca/t/1wrdg Macaraeg v E Care Contact Centres Ltd.]'', 2008 BCCA 182). However, many of the interests protected by the ESA have parallel common law (contractual) remedies as well. A significant exception to this is overtime pay: employees have a contractual right to receive their normal hourly pay for all hours they work, but they can only make a claim at the Employment Standards Branch if they wish to receive 1.5 or 2 times their normal hourly rate for their overtime hours (an exception to this is if their employment contract specifically sets out that they will receive a higher rate for overtime pay, in which case this contractual right can be enforced in court). Each ~~particular~~ case should be reviewed fully before determining in which forum to proceed.		Employees may be prevented from directly enforcing rights under the ESA in civil court, and must instead use the Employment Standards Branch to enforce these rights (''[https://canlii.ca/t/1wrdg Macaraeg v E Care Contact Centres Ltd.]'', 2008 BCCA 182). However, many of the interests protected by the ESA have parallel common law (contractual) remedies as well. A significant exception to this is overtime pay: employees have a contractual right to receive their normal hourly pay for all hours they work, but they can only make a claim at the Employment Standards Branch if they wish to receive 1.5 or 2 times their normal hourly rate for their overtime hours (an exception to this is if their employment contract specifically sets out that they will receive a higher rate for overtime pay, in which case this contractual right can be enforced in court). Each case should be reviewed fully before determining in which forum to proceed.

	It is important to note that different stages of a dispute may appear in different forums. A finding that there was no just cause for termination through an Employment Standards hearing is not grounds for estoppel of an employer arguing just cause as a defence to a wrongful dismissal claim through civil court; see ''[https://canlii.ca/t/jg044 Moore v. Instow Enterprises Ltd.]'', 2021 BCSC 930.		It is important to note that different stages of a dispute may appear in different forums. A finding that there was no just cause for termination through an Employment Standards hearing is not grounds for estoppel of an employer arguing just cause as a defence to a wrongful dismissal claim through civil court; see ''[https://canlii.ca/t/jg044 Moore v. Instow Enterprises Ltd.]'', 2021 BCSC 930.

LSLAP: /* 3. Appeals */

2025-10-01T04:24:15Z

3. Appeals

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	:a) '''The Director erred in law:''' An error in law may encompass the interpretation of a particular statutory provision, or its application to the facts presented. It can also be used when the appellant feels the Director acted unreasonably, or without evidence.		:a) '''The Director erred in law:''' An error in law may encompass the interpretation of a particular statutory provision, or its application to the facts presented. It can also be used when the appellant feels the Director acted unreasonably, or without evidence.
	:b) '''The Director failed to observe the principles of natural justice in making the determination:''' This ground of appeal encompasses a wide variety of circumstances such as bias on the part of the decision maker, procedural unfairness (refusing an adjournment without good reason), or when the appellant feels ~~generally~~ they have not been given the right to be heard (a right codified in s 77 of the Act).		:b) '''The Director failed to observe the principles of natural justice in making the determination:''' This ground of appeal encompasses a wide variety of circumstances such as bias on the part of the decision maker, procedural unfairness (refusing an adjournment without good reason), or when the appellant feels they have not been given the right to be heard (a right codified in s 77 of the Act).
	:c) '''Evidence has become available that was not available at the time the Determination was made:''' The new evidence must be material, in the sense that if the Director had been given the chance to review it the determination in whole or in part would have been different.		:c) '''Evidence has become available that was not available at the time the Determination was made:''' The new evidence must be material, in the sense that if the Director had been given the chance to review it the determination in whole or in part would have been different.

LSLAP: /* 3. Appeals */

2025-10-01T04:23:33Z

3. Appeals

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	=== 3. Appeals ===		=== 3. Appeals ===

	Anyone who wishes to appeal a determination of the ''ESB'' must make an application to the Employment Standards Tribunal. If the decision is hand-served, faxed, or delivered electronically, an appeal must be filed within 21 days. If the decision is sent by registered mail, an appeal must be filed within 30 days. After reviewing the decision, the Adjudicator of the Employment Standards Tribunal may confirm it, alter it, or refer it back to an officer (see ''[https://canlii.ca/t/gs477 Alsip v Top Rollshutters Inc. dba Talius]'', 2016 BCCA 252, and ''[https://canlii.ca/t/gp8v7 Howard v Benson Group Inc. (The Benson Group Inc.)]'', 2016 ONCA 256).		Anyone who wishes to appeal a determination of the ESB must make an application to the Employment Standards Tribunal. If the decision is hand-served, faxed, or delivered electronically, an appeal must be filed within 21 days. If the decision is sent by registered mail, an appeal must be filed within 30 days. After reviewing the decision, the Adjudicator of the Employment Standards Tribunal may confirm it, alter it, or refer it back to an officer. The appeal is decided based on the correctness of the Director’s determination (see ''[https://canlii.ca/t/gs477 Alsip v Top Rollshutters Inc. dba Talius]'', 2016 BCCA 252, and ''[https://canlii.ca/t/gp8v7 Howard v Benson Group Inc. (The Benson Group Inc.)]'', 2016 ONCA 256).

	Sections 112 and 114 of the ''ESA'' confine the grounds of appeal to the tribunal to situations where:		Sections 112 and 114 of the ''ESA'' confine the grounds of appeal to the tribunal to situations where:

LSLAP: /* 2. Filing a Claim with the Employment Standards Branch */

2025-10-01T04:22:48Z

2. Filing a Claim with the Employment Standards Branch

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	*requiring a remedy or cessation of the action (ss 78-79).		*requiring a remedy or cessation of the action (ss 78-79).

	The Director also has the power to help parties settle a complaint and reach a binding settlement agreement that may be filed in Supreme Court for enforcement (s 78).		The Director also has the power to help parties settle a complaint and reach a binding settlement agreement that may be filed in the Supreme Court for enforcement (s 78).

	Section 29 of the ''ES Regulation'' provides an augmented penalty provision that grants the Employment Standards Branch more power to enforce the Act. The penalty provision is also used to enforce the offences listed in section 125 of the ''ESA''.		Section 29 of the ''ES Regulation'' provides an augmented penalty provision that grants the Employment Standards Branch more power to enforce the Act. The penalty provision is also used to enforce the offences listed in section 125 of the ''ESA''.

LSLAP: /* 2. Filing a Claim with the Employment Standards Branch */

2025-10-01T04:21:55Z

2. Filing a Claim with the Employment Standards Branch

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	=== 2. Filing a Claim with the Employment Standards Branch ===		=== 2. Filing a Claim with the Employment Standards Branch ===

	Complaints can be filed to the Employment Standards Branch in ~~one of~~ three ways:		Complaints can be filed to the Employment Standards Branch in three ways:

	*filling in a form and mailing or delivering it to the nearest Employment Standards Branch;		*filling in a form and mailing or delivering it to the nearest Employment Standards Branch;

LSLAP: /* 1. Application and Limitation Periods */

2025-10-01T04:21:24Z

1. Application and Limitation Periods

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	The complaint must be made in writing within six months. If the employee is still employed by the company, an employee should bring a complaint within six months of the event. If the complainant is no longer employed with the defendant company, the complaint must be filed within six months of the termination date (s 74). When an employee is terminated after a temporary layoff, the last day of the temporary layoff is deemed to be their last day of employment for the purpose of calculating the six-month limitation period. If this six-month time period has elapsed, there may still be a possibility action in Small Claims Court.		The complaint must be made in writing within six months. If the employee is still employed by the company, an employee should bring a complaint within six months of the event. If the complainant is no longer employed with the defendant company, the complaint must be filed within six months of the termination date (s 74). When an employee is terminated after a temporary layoff, the last day of the temporary layoff is deemed to be their last day of employment for the purpose of calculating the six-month limitation period. If this six-month time period has elapsed, there may still be a possibility action in Small Claims Court.

	:'''NOTE:''' Time during which an employee was not working because they were on sick leave, pregnancy leave, Workers’ Compensation benefits, etc. is ~~nonetheless~~ considered part of the term of employment.		:'''NOTE:''' Time during which an employee was not working because they were on sick leave, pregnancy leave, Workers’ Compensation benefits, etc. is considered part of the term of employment.

	=== 2. Filing a Claim with the Employment Standards Branch ===		=== 2. Filing a Claim with the Employment Standards Branch ===

LSLAP: /* A. The Employment Standards Branch */

2025-10-01T04:21:05Z

A. The Employment Standards Branch

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	== A. The Employment Standards Branch ==		== A. The Employment Standards Branch ==

	The Employment Standards Branch is the only forum an employee can go to if they have a complaint arising from a breach of the ''ESA''. If the complaint is ~~instead regarding~~ a contractual issue, see [[{{PAGENAME}}#B. Small Claims Court \| section V.B: Small Claims Court]] and Chapter 20: Small Claims.		The Employment Standards Branch is the only forum an employee can go to if they have a complaint arising from a breach of the ''ESA''. If the complaint is about a contractual issue; see [[{{PAGENAME}}#B. Small Claims Court \| section V.B: Small Claims Court]] and Chapter 20: Small Claims.

	The ''ESA'' established the Employment Standards Branch to deal with complaints and to disseminate information about the Act to both employees and employers. The Employment Standards Branch is responsible for informing employers and employees of their rights under the ''ESA'', and for administrating all disputes arising under the Act.		The ''ESA'' established the Employment Standards Branch to deal with complaints and to disseminate information about the Act to both employees and employers. The Employment Standards Branch is responsible for informing employers and employees of their rights under the ''ESA'', and for administrating all disputes arising under the Act.
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	=== 1. Application and Limitation Periods===		=== 1. Application and Limitation Periods===

	~~The ''ESA'' gives the Director of Employment Standards power to investigate complaints made under the Act.~~ The complaint must be made in writing ~~and~~ within ~~certain time limits. The limitation period for an ESA complaint is~~ six months. If an employee is still employed by the company, an employee should bring a complaint within six months of the event~~, and if~~ the complainant is no longer employed with the defendant company, the complaint must be filed within six months of the termination date (s 74). When an employee is terminated after a temporary layoff, the last day of the temporary layoff is deemed to be their last day of employment for the purpose of calculating the six-month limitation period. If this six-month time period has elapsed, there may still be a ~~possible~~ action in Small Claims Court.		The complaint must be made in writing within six months. If the employee is still employed by the company, an employee should bring a complaint within six months of the event. If the complainant is no longer employed with the defendant company, the complaint must be filed within six months of the termination date (s 74). When an employee is terminated after a temporary layoff, the last day of the temporary layoff is deemed to be their last day of employment for the purpose of calculating the six-month limitation period. If this six-month time period has elapsed, there may still be a possibility action in Small Claims Court.

	:'''NOTE:''' Time during which an employee was not working because they were on sick leave, pregnancy leave, Workers’ Compensation benefits, etc. is nonetheless considered part of the term of employment.		:'''NOTE:''' Time during which an employee was not working because they were on sick leave, pregnancy leave, Workers’ Compensation benefits, etc. is nonetheless considered part of the term of employment.

LSLAP: /* A. The Employment Standards Branch */

2025-09-28T21:41:47Z

A. The Employment Standards Branch

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	The Employment Standards Branch is the only forum an employee can go to if they have a complaint arising from a breach of the ''ESA''. If the complaint is instead regarding a contractual issue, see [[{{PAGENAME}}#B. Small Claims Court \| section V.B: Small Claims Court]] and Chapter 20: Small Claims.		The Employment Standards Branch is the only forum an employee can go to if they have a complaint arising from a breach of the ''ESA''. If the complaint is instead regarding a contractual issue, see [[{{PAGENAME}}#B. Small Claims Court \| section V.B: Small Claims Court]] and Chapter 20: Small Claims.

	The ''ESA'' established the Employment Standards Branch to deal with complaints and to disseminate information about the Act to both employees and employers. The Employment Standards Branch is responsible for informing employers and employees of their rights under the ''ESA'', and for administrating all disputes arising under the Act. The Employment Standards Branch’s Industrial Relations Officers and Employment Standards Officers are trained to interpret the ''ESA'' and to assist both employers and employees with problems arising under the Act. Employees should be referred to the Employment Standards Branch if they have a complaint arising under the ''ESA''.		The ''ESA'' established the Employment Standards Branch to deal with complaints and to disseminate information about the Act to both employees and employers. The Employment Standards Branch is responsible for informing employers and employees of their rights under the ''ESA'', and for administrating all disputes arising under the Act.

	The Employment Standards Tribunal can use a “make whole remedy” giving the employee compensation instead of reinstatement of employment (WG McMahon Canada Ltd v Mendonca (1999), BCEST Decision No 386/99). The employee is “made whole” financially from compensation to put them in the same economic position they would have been in had the infraction not occurred. This is an extraordinary remedy but one which allows for significant compensation. The above case can be located on the [http://www.bcest.bc.ca Employment Standards Tribunal website].		The Employment Standards Tribunal can use a “make whole remedy” giving the employee compensation instead of reinstatement of employment (WG McMahon Canada Ltd v Mendonca (1999), BCEST Decision No 386/99). The employee is “made whole” financially from compensation to put them in the same economic position they would have been in had the infraction not occurred. This is an extraordinary remedy but one which allows for significant compensation. The above case can be located on the [http://www.bcest.bc.ca Employment Standards Tribunal website].

LSLAP: /* D. Limitation Periods */

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D. Limitation Periods

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	In the courts, there is a two-year limitation period (See ''Limitation Act'', SBC 2012, c 13) for filing a wrongful dismissal claim. Section 124 of the ESA sets a limitation period of two years for any court action arising from an offence under the Act.		In the courts, there is a two-year limitation period (See ''Limitation Act'', SBC 2012, c 13) for filing a wrongful dismissal claim. Section 124 of the ESA sets a limitation period of two years for any court action arising from an offence under the Act.

	Note that in cases where an employer has provided working notice of dismissal, the limitation period for wrongful dismissal claims likely start when working notice is provided, not on the last day of employment. See ''Bailey v. Milo-Food & Agricultural Infrastructure & Services Inc''. 2017 ONCA 1004~~, https://canlii.ca/t/hpd4z~~.		Note that in cases where an employer has provided working notice of dismissal, the limitation period for wrongful dismissal claims likely start when working notice is provided, not on the last day of employment. See ''[https://canlii.ca/t/hpd4z Bailey v. Milo-Food & Agricultural Infrastructure & Services Inc.]'', 2017 ONCA 1004.


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