Limitation periods

Applying limitation periods in employment standards legislation

Colin Gibson
Question: How do limitation periods apply to employment standards legislation? How would they apply when high-level and personnel decisions are handled in the head office in a different province from a satellite branch?

Answer: Generally speaking, Canadian employment standards legislation contains two kinds of limitation periods. One establishes a deadline for the initiation of a complaint under the statute. The other sets out the maximum number of months of unpaid wages for which an employer may be held liable.

Under the British Columbia Employment Standards Act, complaints under most sections of the statute may be filed by a current employee at any time. If the employee has been dismissed, however, the complaint must be initiated “within six months after the last day of employment.”

A B.C. employer’s liability for unpaid wages is limited to wages that became payable in the six months before the date the complaint was filed or, if employment has ended, wages that became payable in the six months before the last day of employment.

Until recently, most courts refused to entertain claims for violations of employment standards legislation, and held that such claims could only be pursued using the complaint mechanism set out in the applicable statute. However, the B.C. Supreme Court recently ruled the minimum employment standards set out in the legislation are implied terms of an employment contract, thereby enabling an employee to commence a civil action to enforce those rights, as in Macaraeg v. E Care Contact Centers Ltd.

Moreover, the court found in Holland v. Northwest Fuels Ltd. that while the minimum standards set out in employment standards legislation are implied into the employment contract, the statutory provisions establishing a deadline for advancing a claim and limiting the employer’s liability for unpaid wages are not. These decisions are of concern to employers because they can significantly expand the employer’s potential liability for claims for unpaid wages.

In most cases, the employment standards legislation of the province in which the satellite office is located will apply. If an employee is hired and works in a particular province, the employment standards legislation of that province will apply to the employment relationship, regardless of where the employer’s head office may be located. The fact the employer’s head office is in another jurisdiction will not serve as an excuse for violating the statutory requirements of the province in which the satellite office is located.

If an employee works simultaneously in several different provinces, or is assigned temporarily outside of her home province, it may be difficult to determine which employment standards statute will apply. In such situations, the test will be which jurisdiction has a “sufficient connection” to the employment relationship: British Airways Board v. British Columbia (Workers' Compensation Board). In Re-Can Achieve Consultants Ltd., the B.C. Employment Standards Tribunal held that a “real presence performing work within the province” would have to be established for a sufficient connection to be found.

For more information see:

Macaraeg v. E Care Contact Centers Ltd., 2006 CarswellBC 3066 (B.C. S.C.).

Holland v. Northwest Fuels Ltd., 2007 CarswellBC 874 (B.C. S.C.).

British Airways Board v. British Columbia (Workers' Compensation Board), 1985 CarswellBC 5236 (B.C.C.A.).

Re-Can Achieve Consultants Ltd., (1997) unreported (B.C. E.S.T.).

Colin G.M. Gibson is a partner with Harris & Company in Vancouver. He can be reached at [email protected] or (604) 891-2212.

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