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Difference between revisions of "Remedies in Employment Law (9:VI)"
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Remedies in Employment Law (9:VI) (view source)
Revision as of 21:08, 2 October 2022
, 21:08, 2 October 2022→3. Appeals
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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: | ||
: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). | |||
: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. | |||
Although the Act does not specifically allow a party to appeal the Director’s findings of fact, in certain cases the Director’s fact finding may be so flawed that it amounts to a legal error. ''Gemex Developments Corp v British Columbia (Assessor of Area #12– Coquitlam)'' (1998), 62 BCLR (3d) 354) defined an error of law as including instances where the Director was “acting on a view of the facts that could not reasonably have been entertained.” This test has been adopted in a number of tribunal decisions. ''Delsom Estate Ltd v British Columbia (Assessor of Area No 11 Richmond/Delta'', [2000] BCJ No 331 (BCSC) restated the test as being “...that there is no evidence before the Board which supports the finding made, in the sense that it is inconsistent with and contradictory to the evidence” and is “perverse or inexplicable”. For a summary of the law relating to judicial reviews under the Employment Standards Tribunal, see ''Cariboo Gur Sikh Temple Society (1979) v British Columbia (Employment Standards Tribunal)'', 2016 BCSC 1622. | Although the Act does not specifically allow a party to appeal the Director’s findings of fact, in certain cases the Director’s fact finding may be so flawed that it amounts to a legal error. ''Gemex Developments Corp v British Columbia (Assessor of Area #12– Coquitlam)'' (1998), 62 BCLR (3d) 354) defined an error of law as including instances where the Director was “acting on a view of the facts that could not reasonably have been entertained.” This test has been adopted in a number of tribunal decisions. ''Delsom Estate Ltd v British Columbia (Assessor of Area No 11 Richmond/Delta'', [2000] BCJ No 331 (BCSC) restated the test as being “...that there is no evidence before the Board which supports the finding made, in the sense that it is inconsistent with and contradictory to the evidence” and is “perverse or inexplicable”. For a summary of the law relating to judicial reviews under the Employment Standards Tribunal, see ''Cariboo Gur Sikh Temple Society (1979) v British Columbia (Employment Standards Tribunal)'', 2016 BCSC 1622. | ||
