2007 BCSC 569 Holland v. Northwest Fuels Ltd. et al. IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Holland v. Northwest Fuels Ltd.

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1 2007 BCSC 569 Holland v. Northwest Fuels Ltd. et al IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Holland v. Northwest Fuels Ltd. et al, 2007 BCSC 569 Date: Docket: S Registry: Vancouver Between: Joseph Holland Plaintiff And: Northwest Fuels Limited, Petro Canada Retail Development Centres (Western) Ltd. and Tymoschuk Agencies Ltd. Defendants Before: The Honourable Madam Justice Neilson Reasons for Judgment Counsel for the Plaintiff Simon K. Kent Counsel for the Defendant, Tymoschuk Agencies Ltd. David A. Warner, Q.C. Counsel for the Intervenor, Director of Employment Standards Michelle J. Alman Date and Place of Hearing: September 19, 2006 and January 24, 2007 Vancouver, B.C. BACKGROUND [1] The plaintiff brings this summary judgment application to recover $17,388 from his former employer, Tymoschuk Agencies Ltd. ( Tymoschuk ), for unpaid overtime worked during 2000 and He advances his claim on the basis that his statutory right to overtime, set out in s. 40 of the Employment Standards Act, R.S.B.C. 1996, c. 113 at the time he worked for Tymoschuk, is an implied term of his employment contract, and is thus enforceable in a civil action. [2] There have been periodic amendments to the Employment Standards Act during the time relevant to this claim. To differentiate these, I refer to the version of the Employment Standards Act that was in effect during the plaintiff s employment with Tymoschuk as the

2 2001 ESA. I refer to the present version of the Act as the current ESA. Where it is necessary to refer to other versions of the legislation, I identify them by adding the appropriate year to the ESA designation. [3] The plaintiff worked for Tymoschuk as a truck driver and depot manager from 1989 to September 30, [4] It is common ground that during 2000 and 2001, the plaintiff worked 1,581 hours of overtime for which Tymoschuk paid him straight time, contrary to s. 40(1) of the 2001 ESA which read: 40(1) An employer must pay an employee who works over 8 hours a day and is not on a flexible work schedule adopted under section 37 or 38 (a) 1 1/2 times the employee s regular wage for any time over 8 hours, and (b) double the employee s regular wage for any time over 11 hours. [5] The plaintiff says his oral employment agreement with Tymoschuk was silent with respect to entitlement to overtime pay. Tymoschuk s representatives say that the plaintiff agreed that he would be paid straight time for overtime, because he received a higher hourly rate than other employees doing the same work. [6] Section 4 of the 2001 ESA precluded waiver of the minimum requirements provided by that legislation. Thus, even if Tymoschuk s evidence is accepted as to the terms of the employment agreement, the provision waiving overtime would be of no effect. [7] On October 1, 2001, Tymoschuk sold its business to the defendant Petro-Canada Retail Development Centres (Western) Ltd. ( Petro-Canada ). Thereafter, Petro-Canada carried on Tymoschuk s operations under the name Northwest Fuels Ltd. As part of that transaction, Tymoschuk issued termination notices to the plaintiff and its other employees, and the plaintiff entered a new contract of employment with Petro-Canada on October 1, [8] Part 10 of the 2001 ESA provided a statutory scheme under which contravention of the legislation could be investigated and adjudicated by the Director of Employment Standards (the Director ). Section 74 of that Part dealt with complaints to the Director if an employer contravened the statutory minimum benefits imposed by the 2001 ESA including s. 40(1). The relevant parts read: 74 (1) An employee, former employee or other person may complain to the director that a person has contravened (a) a requirement of Parts 2 to 8 of this Act... (2) A complaint must be in writing and must be delivered to an office of the Employment Standards Branch. (3) A complaint relating to an employee whose employment has terminated must be delivered under subsection (2) within 6 months after the last day of employment.... [9] The plaintiff did not deliver a complaint to the Director about the unpaid overtime within six months of the end of his employment with Tymoschuk. He is thus precluded from relying on the enforcement procedure under the 2001 ESA to recover his claim. [10] The plaintiff continued to work for Petro-Canada until May 31, 2003 when that defendant terminated his employment. [11] In December 2005, the plaintiff commenced this action in contract, claiming damages for wrongful dismissal from Petro-Canada, and judgment for unpaid overtime from both Tymoschuk and Petro-Canada. He has settled his claim against Petro-Canada, and now seeks to recover his remaining claim against Tymoschuk for overtime.

3 [12] Tymoschuk argues that the courts have no jurisdiction to adjudicate such a claim. It says that the 2001 ESA created a comprehensive and exclusive code for enforcement of the statutory entitlement to overtime. It says that statutory right is not an implied term of the plaintiff s employment contract, and cannot be enforced in a civil action. [13] The Director has been granted status as an intervenor in this proceeding and supports Tymoschuk s position. ANALYSIS [14] Tymoschuk and the Director argue that the intention of the 2001 ESA is to strike a fair balance between employees and employers, and to provide an expeditious and inexpensive process for determination of overtime pay claims. While the legislation creates a statutory right to overtime, they say that it also requires an employee to exercise that right within a limited time so an employer will have some certainty as to its obligations. They argue that since the plaintiff did not file a complaint within the required six months, it would be unfair and contrary to the legislative intent of the 2001 ESA to find that the overtime requirement in s. 40 is an implied term of the employment contract, and that the plaintiff is entitled to enforce his statutory right to overtime in this court. [15] In support of their position, Tymoschuk and the Director rely on a series of decisions of this court, notably Vanderhelm v. Best-Bi Food Ltd. (1967), 65 D.L.R. (2d) 537 (B.C.S.C.), and Sitka Forest Products Ltd. v. Andrew (1988), 32 B.C.L.R. (2d) 62 (S.C.). [16] In Vanderhelm, Munroe J. considered whether the plaintiff could bring a civil action to recover holiday pay under the Annual and General Holidays Act, R.S.B.C. 1960, c. 11. He concluded that an employee could not enforce his statutory rights under that legislation through the courts, as the remedies provided by the statute were intended to be the sole remedies available. He accordingly found that no right of action existed, and the court had no jurisdiction to adjudicate upon the claim. [17] In Sitka, Gow J. considered whether the Employment Standards Act, S.B.C. 1980, c. 10 (the 1980 ESA ) created a civil right of action in a factual context similar to this case. The employer sued a former employee to recover overpayment of monthly draws, and the employee sought to set off unpaid vacation pay to which he was entitled under ss. 36 and 37 of the 1980 ESA. The employee had failed to file a complaint within the statutory time limit of six months, and so could not advance his claim under the legislation. Instead, he claimed it was a debt recoverable in the civil action. Gow J. referred to Vanderhelm and concluded that the legislation did not confer an independent civil remedy on the employee, who was therefore confined to seeking redress under the 1980 ESA. [18] The decision in Sitka has since been followed repeatedly by the courts of this province: Morgan v. Monk Office Supply Ltd., [1993] B.C.J. No 1046 (S.C.) (QL); Charles v. A & B Sound Ltd., [1999] B.C.J. No. 701 (S.C.) (QL); Lavery v. A.M.P.M. Service Ltd., [1999] B.C.J. No (S.C.) (QL); and Wells v. Patina Salons Ltd., 2003 BCSC Each of these decisions endorsed the decision in Sitka, without embarking on a detailed analysis of the jurisdictional issue. [19] I heard this application on September 16, 2006, and reserved judgment. Before my decision was released, Madam Justice Wedge released reasons for judgment in Macaraeg v. E Care Contact Centers Ltd., 2006 BCSC 1851, a case which raised essentially the same issues as those before me, albeit under the current ESA.

4 [20] Ms. Macaraeg sued her former employer for wrongful dismissal and unpaid overtime. She argued that the overtime pay requirement under s. 40 of the current ESA was an implied term of her employment contract, and that she was therefore entitled to recover the overtime payment owed to her in her civil claim for wrongful dismissal. [21] In her reasons, Madam Justice Wedge considered the decision of the Supreme Court of Canada in Machtinger v. HOJ Industries Ltd., [1992] 1 S.C.R. 986, as well as these authorities from other provinces which support the view that the effect of a minimum benefit conferred by employment standards legislation is to introduce an implied contractual term into the contract of employment: Stewart v. Park Manor Motors Ltd. (1967), 66 D.L.R. (2d) 143 (Ont. C.A.); Kolodziejski v. Auto Electric Service Ltd. (1999), 174 D.L.R. (4th) 525 (Sask. C.A.); and Beaulne v. Kaverit Steel and Crane ULC (2002), 219 D.L.R. (4th) 482 (Alta. Q.B.). She also found that one decision in this province, Kenpo Greenhouses Ltd. v. British Columbia (Director of Employment Standards) (1997), 32 B.C.L.R. (3d) 347 (S.C.), provided some support for that view. She concluded that these decisions justified a finding that the statutory overtime benefits in the current ESA were an implied term of Ms. Macaraeg s employment contract. [22] Wedge J. then considered whether the line of authorities in this province that originated in Vanderhelm and Sitka precluded enforcement of this implied term in a civil action. She observed that in Vanderhelm, Munroe J. stated that the presumption against enforcing statutory rights in civil actions is a prima facie presumption only. He emphasized the importance of considering the provisions and objects of the legislation as a whole in determining whether the statutory intent was to create rights enforceable by civil action, or only through the mechanisms established by the legislation. [23] Wedge J. was critical of the Sitka decision as it did not refer to these aspects of Vanderhelm. She observed that the 1980 ESA, which Gow J. considered in Sitka, was a significantly different legislative scheme from the Annual and General Holidays Act that was the basis of the decision in Vanderhelm. It was her view that neither Sitka, nor the decisions that have followed it, considered the 1980 ESA as a whole. She concluded that the first step in her analysis must be a consideration of whether the provisions of the current ESA expressly, or by necessary implication, precluded recovery of statutory overtime through a civil action. She stated that the answer to that question was contained in the provisions of that legislation, rather than the Sitka line of authorities. [24] At paras of her reasons, Madam Justice Wedge then proceeded to a comprehensive review of the current ESA and its underlying policy considerations. She concluded that nothing in that legislation precluded an employee from bringing a civil action to recover the overtime benefits arising from s. 40(1), whether or not the claim is part of a wrongful dismissal action. [25] Finally, Wedge J. considered whether the principles enunciated in Re Hansard Spruce Mills Ltd., [1954] 4 D.L.R. 590 (B.C.S.C.) permitted her to depart from Sitka and the other previous judgments of this court that had reached a contrary conclusion. She concluded that she was not bound to follow that line of authorities, stating at paras : The case authorities since Sitka have clarified the objects of employment standards legislation, which is to ensure that employers provide their employees with the minimum statutory employment rights required by the legislation. Those authorities have also emphasized that the ESA must be read broadly as "benefits-conferring" legislation, and construed generously with its objects in mind.

5 The current provisions of the ESA, read as a whole, do not grant exclusive jurisdiction to the Director of Employment Standards to decide claims for benefits conferred by the ESA. The same conclusion arises from a consideration of the legislation in light of is objects as articulated by the Supreme Court of Canada in authorities such as Machtinger and Rizzo. Finally, neither Sitka nor decisions following Sitka addressed the issue of whether the minimum requirements of the ESA are implied terms of employment contracts and, on that basis, prima facie within the jurisdiction of the court in an action for breach of contract. For these reasons, I have concluded that I should not follow previous decisions of this Court on the issue of whether an employee may, in the context of the current provisions of the ESA, bring a civil action to pursue his or her statutory employment rights. [26] Madam Justice Wedge accordingly concluded that it was an implied term of Ms. Macaraeg s employment contract that she would be paid overtime compensation in accordance with the requirements of the current ESA, and that that legislation did not preclude her from pursuing her claim for overtime in a civil action for breach of her employment contract. [27] As a result of the decision in Macaraeg, I was faced with conflicting authorities from this court on the same issue. On January 24, 2007, the parties appeared before me again to make submissions on whether I should follow Macaraeg, or the Sitka line of authorities. [28] The defendant and the Director criticized the Macaraeg decision on several grounds. [29] First, they argued that Madam Justice Wedge erred in her interpretation of Machtinger, and ignored the fact that it was distinguishable from Ms. Macaraeg s situation as it dealt with a common law right to reasonable notice, rather than a purely statutory right. I find that argument ignores the justifiable inference made by Madam Justice Wedge at paras and of her reasons that, in the absence of such a common law right, the judgments in Machtinger would have concluded that the statutory minimum right to notice was an implied term of the employment agreement. I agree with that interpretation of Machtinger. [30] Second, the Director argues that Madam Justice Wedge erred in finding support for her decision in McLeod v. Egan, [1975] 1 S.C.R. 517 and Parry Sound (District) Social Services Administration Board v. Ontario Public Service Employees Union, [2003] 2 S.C.R. 157, 2003 SCC 42. He says that in doing so, she failed to recognize essential differences between collective agreements and individual employment contracts. He points out that the decision in B.C. Teachers Federation v. B.C. Public School Employers Assn., [2005] B.C.J. No. 289 (QL), 2005 BCCA 92, leave to appeal refused, [2005] S.C.C.A. No. 180, was not brought to her attention. He says that at para. 22 of that decision, the Court of Appeal expressly stated that the Supreme Court of Canada in McLeod had not decided that employment standards legislation was incorporated in a collective agreement. [31] I do not agree that this weakens the conclusions reached by Wedge J. In my view, the Court in B.C. Teachers Federation did not say that an employment-related statute is not incorporated in a collective agreement. It simply held that that is not a necessary step in concluding that there is a sufficient contextual connection between the statute and the collective agreement to give an arbitrator jurisdiction to deal with an alleged violation of the statute. [32] Third, the Director takes issue with Madam Justice Wedge s reliance on the decisions in Danyluk v. Ainsworth Technologies Inc., [2001] 2 S.C.R. 460, 2001 SCC 44 and Fuggle v. Airgas Canada Inc., [2002] B.C.J. No (QL), 2002 BCSC 1696 to support her conclusion that a plaintiff may choose to enforce statutory employment benefits through

6 the courts. In each case, the Court rejected a defence of issue estoppel with respect to a claim under employment standards legislation, and permitted the plaintiff to pursue it through the courts. The Director points out, however, that Danyluk dealt with the Ontario employment standards legislation, which specifically permits employees to pursue their statutory entitlements through the courts. He also points out that Fuggle dealt solely with a contractual claim for wrongful dismissal. There was no associated claim under employment standards legislation. [33] While the Director is correct, I note that Madam Justice Wedge cited Danyluk and Fuggle primarily with respect to the policy considerations underlying employment standards legislation. She did not rely on them for her finding that the overtime benefit under that legislation is an implied term of the employment contract. [34] Fourth, the Director argues that Madam Justice Wedge was in error in relying on Kenpo to support her conclusions. He says that case was decided under the significantly different legislative regime of the 1980 ESA. Under that legislation, a Director s Certificate was issued where it was found that wages were owing. An appeal of the Certificate proceeded to this court by way of a trial de novo. Thus Leggatt J. enforced the terms of the 1980 ESA, not as implied terms of the employment agreement, but as statutory terms in his role as the statutory appellate body. Recourse to the courts on appeals from a Director s Certificate was eliminated in [35] I agree that this fourth point made by the Director limits the usefulness of the Kenpo decision in an analysis of whether a claim arising from a statutory right can be enforced by the courts as an implied contractual term. [36] I do not find, however, that any of the points made by the defendant and the Director fundamentally affect the core of Wedge J. s analysis in Macaraeg. The focus of her decision was her interpretation of Machtinger and the other decisions I have listed in paragraph 21 of these reasons, and her analysis of the provisions and objects of the current ESA, as mandated by Vanderhelm. None of these matters had been considered in any of the earlier decisions in this province. In my view, Madam Justice Wedge was therefore correct in finding that the principles established in Re Hansard Spruce Mills entitled her to depart from those earlier decisions. [37] I have considered the analysis in Macaraeg, as well as that in Sitka and the cases that have followed it. I prefer the reasoning of Madam Justice Wedge in Macaraeg. Her analysis of the issues is comprehensive. I concur with her interpretation of the judgments in Machtinger with respect to both the policy and the operation of employment standards legislation. In particular, I agree that a necessary inference to be drawn from those judgments is that minimal employment benefits conferred by such legislation are implied terms of an employment contract. As well, I am in accord with the view that Vanderhelm advocates a comprehensive review of the governing legislation in determining whether the statutory benefits provided in employment standards legislation are intended to be implicit terms of the employment contract enforceable through a civil action. I find Madam Justice Wedge s analysis of these matters persuasive. [38] I appreciate that Wedge J. was dealing with the current ESA, which has been amended since the 2001 ESA under consideration in this case. The amendments include changes to ss. 4, 40, 74, and 76, all of which are referred to in Macaraeg. I find, however, that the amendments are minor, and the resulting differences between the two versions of the legislation have no effect on my decision to adopt the reasoning in Macaraeg.

7 [39] I accordingly conclude that it was an implied term of the employment contract between the plaintiff and Tymoschuk that he would be paid overtime in accordance with the mandatory requirements of the 2001 ESA, and that that legislation does not preclude him from pursuing his claim for overtime in this action. DAMAGES [40] The parties agree that the plaintiff is entitled to judgment in the amount of $17,388 if he succeeds in establishing his claim for all overtime worked during 2000 and [41] Tymoschuk takes the position, however, that s. 80(1)(a) of the current ESA, which was in force in 2005 when the plaintiff started this action, is an implied term of his employment agreement, and operates to limit his claim to overtime worked during the six months prior to the termination of his employment with Tymoschuk. The relevant parts of s. 80 provide: 80 (1) The amount of wages an employer may be required by a determination to pay an employee is limited to the amount that became payable in the period beginning (a) in the case of a complaint, 6 months before the earlier of the date of the complaint or the termination of the employment, and (b) in any other case, 6 months before the director first told the employer of the investigation that resulted in the determination, plus interest on those wages. (1.1) Despite subsection (1) (a), for the purposes of a complaint that was delivered before May 30, 2002, to an office of the Employment Standards Branch under and in accordance with section 74, the amount of wages an employer may be required by a determination to pay an employee is limited to the amount that became payable in the period beginning 24 months before the earlier of (a) the date of the complaint, and (b) the termination of the employment, plus interest on those wages. [42] As is evident from s. 80(1.1), s. 80 of the 2001 ESA was amended on May 30, Before that, the limitation in s. 80(1)(a) was 24 months, rather than six months. [43] Thus, the matter of damages raises two issues. First, which version of s. 80(1)(a) governs the plaintiff s claim: the 24-month limitation in the 2001 ESA, or the six-month limitation in the current ESA? Second, is s. 80(1)(a) an implied term of the plaintiff s employment contract on the same basis as the statutory right to overtime in s. 40? [44] The defendant argues that s. 80(1)(a) refers to a complaint to the Director. Here, the plaintiff did not make such a complaint before this section was amended in May, He should not, therefore, be entitled to judgment for the 24-month period as if such a complaint had been made. The period of recovery should be governed by the date on which the plaintiff took action to enforce his right to overtime. Here, that is the date he filed the writ, which was December 9, He is therefore governed by s. 80(1)(a) in the current ESA, and his claim is accordingly limited to six months. [45] I disagree. If provisions of employment standards legislation are implied terms of an employment contract, in my view they must be provisions which were in existence when the employment contract was operative. I do not see how a section from a subsequent version of the legislation can be implied retroactively into an employment contract that has ended. I accordingly conclude that, if s. 80(1)(a) were to be found an implied term of the plaintiff s employment contract with Tymoschuk, it would be the version of that section in the 2001 ESA,

8 which is 24 months. The plaintiff is accordingly entitled to recover the full amount of his claim, which spanned two years. [46] That finding means that I need not consider the second issue of whether s. 80(1)(a) is an implied term of the plaintiff s employment contract with Tymoschuk, since his claim is limited to a 24-month period in any event. I will nevertheless consider that issue, given its significance to the Director s position. [47] Tymoschuk, supported by the Director, argues that the plaintiff cannot be selective in his use of employment standards legislation. If the overtime benefit in s. 40 is an implied term of his employment agreement, they say that consistency requires that s. 80(1)(a) also be an implied term. They point out that one of the stated objectives of the current ESA set out in s. 2 is fair treatment of both employees and employers. They say that, if the courts do have jurisdiction, it cannot have been the intent of the legislature to permit them to pick and choose which parts of the statute should apply to a civil claim. [48] The plaintiff responds that, on a proper interpretation of the current ESA, s. 80 does not apply to a claim for overtime pursued through the courts. He says that the decision in Macaraeg, as well as cases in other jurisdictions, support the view that the legislation contemplates a dual scheme for enforcement. The current ESA clearly creates an obligation to pay overtime, and an employee has a choice as to how to enforce that right. He may choose the simple and efficient process contemplated by the current ESA, with its accompanying limitations, or he may elect to pursue his claim through the more complex and expensive avenue of litigation, but without the legislative restrictions of the current ESA. [49] Wedge J. did not deal with damages in Macaraeg, as that case involved a hearing under Rule 34 of the Rules of Court, B.C. Reg. 221/90 on points of law related to liability only. Nevertheless, following her review of authorities dealing with the objectives of employment standards legislation, at paras she provided support for the view that the current ESA contemplates a dual process for enforcement of the benefits it provides: As noted by Binnie J. in Danyluk, the purpose of the ESA is to provide an expeditious and inexpensive means of resolving employment disputes. The ESA gives the employee an alternative to the more cumbersome, costly and time-consuming process of a civil action. The Director has a broad range of investigative and remedial powers not available to the courts. As a result, most employees with complaints about non-payment of statutory benefits will likely elect to pursue their claims under the ESA. Employees who choose to do so will have all of the enforcement mechanisms under the ESA available to them. The quid pro quo is that they will then be bound by all provisions of the statute, including the six month time limit within which complaints must be brought. While most employees will likely opt to proceed under the enforcement mechanisms of the ESA, the statute does not expressly or impliedly prohibit an employee from commencing civil proceedings to enforce his or her statutory rights, whether or not the claim is part of a wrongful dismissal action. [50] On that analysis, it is a logical inference that the limitation on the claim in s. 80(1)(a) is not an implied term of the employment agreement, and would not apply to restrict a claim for overtime presented in a civil action. There is support for that view in the decisions from other jurisdictions reviewed and followed by Wedge J. in Macaraeg. [51] In Kolodziejski, a long term employee sought to recover holiday pay. Having found that the Labour Standards Act, R.S.S. 1978, c. L-1 introduced further terms with respect to holiday pay into the employment contract, the Saskatchewan Court of Appeal dealt with the

9 effect of a statutory limitation which restricted the period of time in which holiday pay could be recovered. This was set out in s of that Act which provided: 68.4(1) A claim pursuant to this Act with respect to unpaid wages must be made to the director or a duly authorized representative of the minister within one year after the last day on which payment of wages was to be made to an employee and an employer failed to make payment. (2) Recovery of wages pursuant to this Act is limited: (a) to wages that became payable in the year immediately preceding the day on which the claim was made to the director or duly authorized representative of the minister; or (b) where the employment with the employer has ceased, to wages that became payable within the last year of employment with that employer. [52] At paras. 27 and 29-30, the Court offered these observations on the limitations in s. 68.4: In my opinion, the intention of the Legislature was not to restrict the remedies available to an employee. Among its purposes, the Act ensures that all employees have certain minimum benefits and an expeditious way to enforce the remedies. The intention of the Legislature was not to limit the employee's right to enforce the prescribed benefits This section has two limitations. The claim itself must be brought to the Director within a certain period of time and the Director then can only pursue wages back one year, either to the year immediately preceding the day in which the claim is made or to wages payable within the last year of employment depending on the relevant circumstances. Thus, an employee is limited and would not be able to claim for holiday pay for earlier years if such a claim is proven. In the case before us the appellant's claim for holiday pay would be barred by both these statutory limitations. It is obvious that if the appellant is not allowed to pursue his claim through a civil action the wage assessment process outlined in the Act is for him a non-existent remedy. In my view, it is not the intention of the Legislature to confer a statutory benefit and yet effectively bar the enforcement of that benefit if that employee fails to bring the claim within the year. I find the trial judge erred in finding the statutory remedies grant the appellant adequate protection. The Court sent the matter back to the trial court for a determination of the employee s entitlement to holiday pay. [53] The decision in Kolodziejski was followed in Watson v. Wozniak (c.o.b. W5 Eld r Care Homes), [2004] S.J. No. 511 (QL), 2004 SKQB 339. Wilkinson J. at para. 16 endorsed the view that the legislature did not intend to restrict the recovery of overtime in a civil action by applying limitations in s Instead, he found that the claim presented was governed by the general six-year limitation period applicable to contractual claims. In reaching that conclusion, he relied on s. 73 of the Labour Standards Act which provides: 73 Except as may be otherwise permitted by this Act and subject to section 68, nothing in this Act curtails, abridges or defeats any civil or other remedy for the recovery of wages by an employee from his employer. [54] Decisions in Alberta, since the 1997 enactment of the Employment Standards Code, R.S.A. 2000, c. E-9 ( the Code ), have generally taken a similar view. The relevant sections of the Code provide: 3 (1) Nothing in this Act affects (a) any civil remedy of an employee or an employer;

10 83 An officer may refuse to accept or investigate a complaint if (b) the employee is proceeding with another action in respect of the subject-matter of the complaint or has sought and obtained recourse in respect of the subject-matter of the complaint before a court, tribunal or arbitrator or by some other form of adjudication. 90 (1) No order under this Division may be made with respect to earnings (a) after one year from the date on which the earnings should have been paid, if the employee is still employed by the employer, and (b) after one year from the date the employment terminates, if the employee is no longer employed by the employer. (4) An order under this Division may direct (a) payment of wages or overtime pay, or both, for a period not exceeding 6 months from whichever first occurs: (i) the order, or (ii) the employee s termination of employment, if the employee s employment is terminated; (b) payment of vacation pay or general holiday pay, or both, for a period not exceeding 2 years from whichever first occurs: (i) the order, or (ii) the employee s termination of employment, if the employee s employment is terminated; [55] In Beaulne, Greckol J. found that the overtime benefit provided by the Code was incorporated into the plaintiff s employment agreement, and permitted recovery of unpaid overtime for one and a half years, a period well beyond the six months specified in s. 90(4)(a) of the Code. At paras , she concluded that the legislation was not intended to be enforced exclusively through its own process. Her rationale, set out at paras , was that the remedies under the legislation were not always adequate to protect an employee. In particular, she mentioned the hardship of requiring claimants to pursue some claims through the courts and others through the employment standards process. [56] In Gordon v. CAM Distributors Ltd. (c.o.b. CAM Industrial Supply), [2002] A.J. No (QL), 2002 ABQB 828, Kenny J. dealt expressly with the issue before me. There, the employee sued in contract to recover overtime for two years. He argued that the Code was not exhaustive, and that he was not bound by the six-month limitation set out in s. 90(4)(a). Kenny J. agreed, finding that s. 83(b) of the Code clearly contemplated claims outside the statute. [57] In Riviera Hotel (1991) Corp. v. Samborsky, [2006] A.J. No. 341 (QL), 2006 ABQB 222, Lee J. reached a contrary decision. I do not, however, find this case persuasive. First, Lee J. did not consider whether the statutory overtime entitlement in the Code formed an implied term of the employment agreement. Further, he relied on Kenney v. Browning-Ferris Industries Ltd. (1988), 63 Alta. L.R. (2d) 164 (Alta. Q.B.), a case decided under the previous legislation which was expressly distinguished in Beaulne at para. 80 and Gordon at paras on the basis of the 1997 legislative changes. [58] I turn to the provisions of the current ESA to determine whether there is anything in the statute that precludes adoption of the approach set out by these cases.

11 [59] Section 2 sets out the purposes of the current ESA. Those relevant are: (a) to ensure that employees in British Columbia receive at least basic standards of compensation and conditions of employment; (b) to promote the fair treatment of employees and employers; (d) to provide fair and efficient procedures for resolving disputes over the application and interpretation of this Act; [60] Section 40 creates a broad right to overtime. Nothing in the section restricts the duration of the claim. Further, s. 42, which deals with banking of overtime wages, has no limit on the duration of the time bank. [61] While s. 80(1)(a) limits the amount payable by an employer to a six-month period, it does not restrict the number of complaints an employee may make. Instead, it permits an employee to submit consecutive complaints to the Director every six months if a violation continues. [62] Further, s. 80(1)(a) falls within Part 10 of the legislation, which deals with Complaints, Investigations and Determinations. Its language is clearly directed at complaints made to and determined by the Director under that Part. An employer is obligated to pay wages required by a determination, which is defined in s. 1 as a decision made by the Director. [63] Sections 76(1), 76(3)(f) and (g), and 118 parallel the provisions in the employment standards legislation of Saskatchewan and Alberta cited earlier in these reasons: 76 (1) Subject to subsection (3), the director must accept and review a complaint made under section 74. (3) The director may refuse to accept, review, mediate, investigate or adjudicate a complaint or may stop or postpone reviewing, mediating, investigating or adjudicating a complaint if (f) a proceeding relating to the subject matter of the complaint has been commenced before a court, a tribunal, an arbitrator or a mediator, (g) a court, a tribunal or an arbitrator has made a decision or an award relating to the subject matter of the complaint, 118 Subject to section 82, nothing in this Act or the regulations affects a person's right to commence and maintain an action that, but for this Act, the person would have had the right to commence and maintain. [64] In my view, the provisions of the current ESA, and the guidance provided with respect to similar legislation by decisions from Saskatchewan and Alberta, lead to the conclusion that the intent of the legislature was to provide a broad right to overtime in the current ESA, which ensures that an employee will receive the pay mandated by s. 40(1) for any overtime worked. It was not intended to limit entitlement to overtime to one six-month period. [65] Moreover, I find that the current ESA contemplates a dual process for enforcement of the right to overtime pay. An employee may take advantage of the speedy and inexpensive complaint procedure provided by Part 10 of the legislation. There are many advantages to this, including the fact that the Director investigates and adjudicates the complaint, and acts to

12 enforce payments on an employee s behalf if a violation is found. On the other hand, by choosing that process, an employee will be subject to legislative restrictions such as that in s. 80(1)(a). [66] Alternatively, an employee may choose to pursue his or her claim to overtime through a civil action. Such a process may be more costly and take longer, but it will be unencumbered by legislative restrictions such as s. 80(1)(a). Electing this avenue will permit the employee to avoid the unfairness of having to launch two procedures if he or she is also advancing a claim for wrongful dismissal, as was the case here. [67] I conclude that the six-month limitation in s. 80(1)(a) is related to considerations of procedural efficiency in dealing with complaints made under Part 10 of the current ESA. It is not intended to be of general application to all claims for overtime, and it is not an implied term of the plaintiff s employment contract. [68] In my view, that conclusion does not offend the stated objective of fairness to the employer in s. 2(a) of the current ESA. There is nothing unfair in enforcing an employer s obligation to pay an employee for all overtime worked. [69] In my view, this interpretation is consistent with the view of the Supreme Court of Canada in Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27 at para. 36, and Machtinger at paras. 31 and 32, with respect to the nature and objectives of employment standards legislation. Such statutes are benefits-conferring legislation with the objective of protecting the interests of employees by requiring employers to comply with minimum standards. They are rooted in the vulnerability of employees, and their unequal bargaining position in relation to their employers. Such legislation is therefore to be interpreted in a broad and general manner, which extends its protection to as many employees as possible. Any doubt arising from difficulties of language is to be resolved in favour of the employee. [70] I conclude that s. 80(1)(a) of the current ESA is not an implied term of the employment contact between the plaintiff and Tymoschuk. It does not apply to limit the plaintiff s claim for overtime to six months. [71] The plaintiff will accordingly recover judgment against Tymoschuk for $17,388. COSTS [72] The plaintiff will recover his costs from Tymoschuk at Scale B. [73] With respect to the Director, the order granting leave to intervene included this term: Whether the Plaintiff is entitled to an award of costs against the Director for both the Plaintiff s response to this application and his response to the Director s argument at the summary trial will be within the discretion of the trial judge to decide. [74] In Evans Forest Products Ltd. v. British Columbia (Chief Forester), [1995] B.C.J. No (S.C.) (QL) at para. 6, Chief Justice Esson stated the general rule with respect to awarding costs against interveners: The position of interveners, who generally play a very minor and closely restricted role in the proceeding, is distinguishable from that of a public interest litigant which brings the proceeding. While there is no rule precluding costs being awarded to or against interveners, it has not been the practice to do so. I think that there are good practical reasons for maintaining that as the general practice although, if an intervener were to materially prolong the proceedings, costs might be awarded against it. There may also be circumstances where it would be appropriate to award costs to an intervener but I doubt such circumstances will arise in many cases.

13 [75] This case clearly engaged the interests of the Director in the proper administration of the Employment Standards Act and the ambit of his statutory duties. The issues raised by the plaintiff s claim had a potentially significant impact on both. The Director s detailed argument on those issues undoubtedly lengthened this hearing. On the other hand, the analysis and authorities provided by the Director were of significant assistance in reaching my conclusions. [76] On balance, it is my view that this is not a case in which I should exercise my discretion by awarding the plaintiff costs against the Director. K. Neilson, J. The Honourable Madam Justice K. Neilson