Unpaid wages claim must go through ESA first: B.C. court

Before Pommer would be allowed to launch any lawsuit for unpaid wages, he had to get permission to do so from the Director of Employment Standards.
Before Pommer would be allowed to launch any lawsuit for unpaid wages, he had to get permission to do so from the Director of Employment Standards. Photo: Shutterstock.

What do you do if your employer or ex-employer owes you wages?

Almost all provinces and territories in Canada have an employment standards act (ESA) that deals with things like work hours, overtime, wages, and more. It also deals with unpaid wages and usually employees and former employees file a complaint with the ESA if they are owed wages.

What happens though if your provincial/territorial ESA restricts the period for which you may recover lost wages? Well, things become a little more complicated.

Such is the case in the Provincial Court of British Columbia decision Pommer v. Match Converge Inc.

Glenn Pommer was employed by Match Converge Inc. from Oct. 1, 2013 until May 15, 2015. When his employment ended, Pommer filed an ESA complaint against his former employer for unpaid wages with the Ministry of Jobs, Tourism and Skills Training – Employment Standards Branch.

Pommer and Match Converge reached a settlement with the help of the ESA Branch for $4,814.41. Pommer claimed, however, that he was owed much more by his former employer, but the British Columbia ESA only permits the branch to look at claims from the last six months of employment.

What were this former employee’s options?

Pommer took Match Converge to the Small Claims Court in British Columbia. He claimed Match owed him 538.4 hours of unpaid wages worth $9,942.56 beyond the settlement amount he got the last six months of his employment.

Match responded that once the ESA has been used to determine a settlement, an employee cannot then file a civil action against the employee.

Indeed, if a person decides to file a claim for unpaid wages under the ESA, then they cannot sue civilly. However, in this case, Pommer was not looking to get paid for the unpaid wages he received within the settlement.

However, the main issue before the court was the fact there is a piece of legislation, the ESA, that deals with these claims.

Judge R.W. Callan looked at the case British Columbia Court of Appeal case Macaraeg v. E Care Contact Centers Ltd., which stated: “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.”

In this case, though Pommer went to court looking for unpaid wages outside the six-month period allowed under the ESA, the ESA still had regulations requirements under s. 82 of the Employment Standards Act.

That means before Pommer would be allowed to launch any lawsuit for unpaid wages, he had to get permission to do so from the Director of Employment Standards. As the ESA is a complete code to deal with these types of claims, according to Callan and the appeal court decision, the act is the only way to resolve such disputes unless the director allows for a civil action outside of the ESA.

Accordingly, Callan stayed Pommer’s civil case and gave him until April 30, 2016 to get permission from the director, failing which the whole case would be dismissed.

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