Macaraeg v. E Care Contact,

• Jurisdiction: British Columbia
• Judge: Finch, C.J.B.C., Chiasson and Tysoe, JJ.A.
• Neutral Citation: 2008 BCCA 182
• Citation: 2008 BCCA 182,(2008), 255 B.C.A.C. 126 (CA),295 DLR (4th) 358,[2008] 5 WWR 44,77 BCLR (4th) 205,255 BCAC 126,[2008] BCJ No 765 (QL),65 CCEL (3d) 161,[2008] B.C.J. No 765 (QL),(2008), 255 BCAC 126 (CA),255 B.C.A.C. 126,295 D.L.R. (4th) 358
• Date: 01 May 2008
• Court: Court of Appeal (British Columbia)

Macaraeg v. E Care Contact (2008), 255 B.C.A.C. 126 (CA);

    430 W.A.C. 126

MLB headnote and full text

Temp. Cite: [2008] B.C.A.C. TBEd. MY.012

Cori Macaraeg (respondent/plaintiff) v. E Care Contact Centers Ltd. (appellant/defendant) and Director of Employment Standards (intervenor)

(CA034710; 2008 BCCA 182)

Indexed As: Macaraeg v. E Care Contact Centers Ltd.

British Columbia Court of Appeal

Finch, C.J.B.C., Chiasson and Tysoe, JJ.A.

May 1, 2008.

Summary:

An employee commenced an action against her employer for damages for wrongful dismissal and overtime pay, although her employment contract made no provision for overtime pay. The employer applied for rulings on points of law as to whether the mandatory overtime provisions of the British Columbia Employment Standards Act (ESA) were incorporated as a matter of law as terms of the employee's contract and whether entitlement to overtime in accordance with such provisions could be pursued by civil court action.

The British Columbia Supreme Court, in a decision reported [2006] B.C.T.C. Uned. C51, held that the statutory overtime provisions were incorporated into employment contracts and that the ESA did not preclude a civil action to pursue a claim for overtime pay. The employer appealed.

The British Columbia Court of Appeal allowed the appeal, holding that the plaintiff employee was not entitled to enforce her statutory right to overtime pay in a civil action. The exclusive jurisdiction to determine such claims laid with the Director of Employment Standards, subject to an appeal to the Employment Standards Tribunal, all pursuant to the provisions of the ESA. Further, as a matter of law, the minimum overtime pay requirements of the ESA were not implied terms of the contract of employment between the plaintiff employee and the defendant employer.

Actions - Topic 1527

Cause of action - Creation of - By statute - By violation of statute - The British Columbia Court of Appeal discussed when statutory rights could be enforced by way of civil action - The court stated that "the proper analysis begins with Orpen [v. Roberts, (SCC 1925)]: did the legislators intend that conferred rights could be enforced by civil action? The answer to the question requires consideration of the legislation as a whole. If it affords effective enforcement of the rights, the general proposition, that statutorily-conferred rights are to be enforced not by court action, but by a statutory mechanism, applies. If the legislation does not afford effective enforcement, the exception to the general rule applies and the rights can be enforced in a civil action. The civil action will be based on recognized causes of action. In the case of rights conferred on employees through employment standards legislation, the rights will be implied terms of the employment contract and enforced through an action for breach of contract. 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" - See paragraphs 101 and 102.

Courts - Topic 2282.1

Jurisdiction - Bars - Failure to exhaust regulatory remedies - [See Actions - Topic 1527 ].

Master and Servant - Topic 1857

Remuneration - Statutory regulation - Overtime wages - The British Columbia Court of Appeal held that an employee was not entitled to enforce his or her right to overtime pay under the Employment Standards Act (ESA) in a civil action - Rather, the exclusive jurisdiction to determine such claims laid with the Director of Employment Standards, subject to an appeal to the Employment Standards Tribunal, all pursuant to the provisions of the ESA - Further, as a matter of law, the minimum overtime pay requirements of the ESA were not implied terms of a nonunion employment contract between an employee and employer - See paragraphs 1 to 104.

Master and Servant - Topic 8323

Employment and labour standards - Enforcement - Civil actions - [See Actions - Topic 1527 and Master and Servant - Topic 1857 ].

Practice - Topic 209

Persons who can sue and be sued - Individuals and corporations - Status or standing - Class or representative actions - General principles - An employee sued her employer for damages for wrongful dismissal and overtime pay, basing her claim for overtime on the provisions of the British Columbia Employment Standards Act - She also argued that since she was in fact intending to pursue a class action, the Class Proceedings Act (CPA) was an independent source of authority for pursuing payment for overtime - The British Columbia Court of Appeal rejected the employee's argument that the CPA was an independent source of authority for her claim - The CPA was a procedural statute which conferred no substantive rights - Rather it allowed those with a cause of action to pursue their rights collectively through a representative - See paragraphs 24 and 25.

Cases Noticed:

Lefebvre v. HOJ Industries Ltd.; Machtinger v. HOJ Industries Ltd., [1992] 1 S.C.R. 986; 136 N.R. 40; 53 O.A.C. 200, refd to. [para. 11].

Stewart v. Park Manor Motors Ltd., [1968] 1 O.R. 234; 66 D.L.R.(2d) 143 (C.A.), refd to. [para. 12].

Kolodziejski v. Auto Electric Service Ltd., [1999] 10 W.W.R. 543; 177 Sask.R. 197; 199 W.A.C. 197; 174 D.L.R.(4th) 525 (C.A.), refd to. [para. 12].

Beaulne v. Kaverit Steel & Crane ULC (2002), 325 A.R. 237; 219 D.L.R.(4th) 482; 2002 ABQB 787, refd to. [para. 14].

Social Services Administration Board (Parry Sound District) v. Ontario Public Service Employees Union, Local 324 et al., [2003] 2 S.C.R. 157; 308 N.R. 271; 177 O.A.C. 235; 2003 SCC 42, refd to. [para. 15].

Sitka Forest Products Ltd. v. Andrew (1988), 32 B.C.L.R.(2d) 62 (S.C.), refd to. [para. 17].

Vanderhelm v. Best-Bi Food Ltd. (1967), 65 D.L.R.(2d) 537 (B.C.S.C.), refd to. [para. 17].

Rizzo & Rizzo Shoes Ltd. (Bankrupt), Re, [1998] 1 S.C.R. 27; 221 N.R. 241; 106 O.A.C. 1, refd to. [para. 19].

Danyluk v. Ainsworth Technologies Inc. et al., [2001] 2 S.C.R. 460; 272 N.R. 1; 149 O.A.C. 1; 2001 SCC 44, refd to. [para. 19].

Ontario New Home Warranty Program et al. v. Chevron Chemical Co. et al. (1999), 99 O.T.C. 384; 46 O.R.(3d) 130; 37 C.P.C.(4th) 175 (Sup. Ct.), refd to. [para. 25].

Reid v. Ford Motor Co. et al., [2006] B.C.T.C. 712; 2006 BCSC 712, refd to. [para. 25].

Suleman v. British Columbia Research Council (1989), 38 B.C.L.R.(2d) 208; 27 C.C.E.L. 23 (S.C.), revd. (1990), 52 B.C.L.R.(2d) 138 (C.A.), refd to. [para. 33].

Kenpo Greenhouses Ltd. v. Director of Employment Standards, [1997] B.C.T.C. Uned. 639; 32 B.C.L.R.(3d) 347 (S.C.), refd to. [para. 41].

Orpen v. Roberts, [1925] S.C.R. 364, refd to. [para. 45].

McLeod et al. v. Egan et al., [1975] 1 S.C.R. 517; 2 N.R. 443, refd to. [para. 62].

British Columbia Teachers' Federation v. British Columbia Public School Employers' Association (2005), 209 B.C.A.C. 120; 345 W.A.C. 120; 251 D.L.R.(4th) 497; 2005 BCCA 92, leave to appeal refused (2005), 347 N.R. 194; 225 B.C.A.C. 320; 371 W.A.C. 320 (S.C.C.), refd to. [para. 67].

Waghorn v. Collision (1922), 91 L.J.K.B. 735, refd to. [para. 73].

Saskatchewan Wheat Pool v. Canada, [1983] 1 S.C.R. 205; 45 N.R. 425, refd to. [para. 73].

A'Hearn et al. v. T.N.T. Canada Inc. et al. (1990), 74 D.L.R.(4th) 663 (B.C.C.A.), refd to. [para. 82].

Statutes Noticed:

Employment Standards Act, R.S.B.C. 1996, c. 113, sect. 118 [para. 96].

Counsel:

R.J. Kaardal and E. Kassaris, for the appellant;

D. Gleadle, for the respondent;

M.J. Alman, for the intervenor.

This appeal was heard at Vancouver, British Columbia, on December 10 and 11, 2007, before Finch, C.J.B.C., Chiasson and Tysoe, JJ.A., of the British Columbia Court of Appeal. Chiasson, J.A., delivered the following judgment on May 1, 2008.