An appeal by the Employment Standards Branch from a judicial review decision holding that missing a statutory time limit to bring an Employment Standards Complaint was not a mandatory bar to the complaint was dismissed

22. January 2008 0

Administrative law – Decisions of administrative tribunals – Employment Standards Branch – Limitations – Employment law – Termination of employment – Judicial review – Compliance with legislation – Jurisdiction of court – Standard of review – Patent unreasonableness

Karbalaeiali v. Canada (Deputy Solicitor General, Employment Standards Branch), [2007] B.C.J. No. 2542, British Columbia Court of Appeal, November 14, 2007, M.E. Saunders, K.J. Smith and P.D. Lowry JJ.A.

A school bus driver was terminated from his employment following a dispute about wages. He attended at an office of the Employment Standards Branch (“ESB”) to complain but was told that he should go to the Labour Program of Human Resources Development Canada (“Labour Canada”) instead. He filed a written complaint with Labour Canada but they declined to exercise jurisdiction and determined that the complaint was within provincial jurisdiction. They then delivered the complaint to the ESB nine months after the termination of employment.

By that time, the complaint was out of time under Section 74(3) of the Employment Standards Act which reads “complaint relating to an employee whose employment has been terminated must be delivered under subsection (2) within 6 months after the last day of employment.”

The ESB refused to consider the complaint because time had lapsed. The bus driver appealed to the Employment Standards Tribunal which upheld the decision that the complaint was late. The Employment Standards Tribunal stated “the Tribunal has held on numerous occasions that the 6-month time limit set out in s. 74(3) is mandatory, and gives neither the Tribunal nor the Director any discretion to relieve from a failure to adhere to it”.

The bus driver obtained a review of the decision which again affirmed the decision that the complaint was statute-barred due to the time limit in the Employment Standards Act.

The bus driver then applied for a judicial review and the trial judge concluded that the two decisions of the Employment Standards Tribunal should be set aside and the matter remitted back to the tribunal for reconsideration. The Court held that the remedy was to treat the complaint as if it had been received when there was a refusal to initially accept the complaint.

The Employment Standards Tribunal appealed arguing that the trial judge applied a standard of review to the interpretation of the Employment Standards Act that was not available to her given that there was a privative clause in the Act.

The Court of Appeal held that the question on judicial review was whether the Employment Standards Tribunal was right about the time limit articulated in Section 74(3) of the Employment Standards Act being mandatory as opposed to discretionary. The Court of Appeal held that this was a question of law and that, under the Administrative Tribunals Act, the interpretation of the Act would not be subject to judicial review unless it was patently unreasonable.

The Court of Appeal held that the decision of the Tribunal was patently unreasonable because the Tribunal failed to consider Section 76 of the Act which indicates that while the Director must accept and review a complaint made under Section 74, the Director may refuse to do so if the complaint is not made within the time limits specified by Section 74(3). Although it is mandatory for the Director to accept and review the complaint, there is an exercise of discretion in terms of whether or not consideration of the complaint is then refused on the basis of the time limit having passed.

The Court held that because the Tribunal’s interpretation of Section 74(3) of the Act completely ignored the discretion afforded to the Director under Section 76, no amount of curial deference could justify permitting that decision to stand. Therefore the appeal was dismissed. The parties had agreed that if a finding was made that the Director of the Employment Standards Tribunal had discretion in respect of this issue, the matter would be remitted to the Tribunal such that the Director could treat the complaint as having been received within the appropriate time.

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