The Prince George Nannies and Caregivers Ltd. unsuccesfully applied for judicial review of an order that it contravened s. 10 of the Employment Standards Act

Administrative law – Employment law – Decisions of administrative tribunals – Employment Standards Tribunal – Judicial review – Compliance with legislation – Standard of review – Patent unreasonableness

Prince George Nannies and Caregivers Ltd. v. British Columbia (Employment Standards Tribunal), [2010] B.C.J. No. 1255, 2010 BCSC 883, British Columbia Supreme Court, June 23, 2010, R.J. Sewell J.

The petitioner, Prince George Nannies and Caregivers Ltd., applies pursuant to the Judicial Review Procedure Act, R.S.B.C. 1996, c. 241 for an order setting aside a decision and reconsideration of the Employment Standards Tribunal and for an order remitting the subject matter of the decisions back to the Tribunal.

The petitioner operates an agency which provides services to Filipino nannies and caregivers who wish to move to Canada and work in the Prince George area. The petitioner routinely enters into agreements with caregivers, whereby it agrees to provide the caregivers with a number of services, none of which expressly include finding or assisting to find employment. Each caregiver must pay a deposit of $1000 upon making an application with the petitioner, a further $1500 within 5 business days of the caregiver’s receipt of an offer of employment, and a further $1500 in three equal monthly installments after commencing her employment. A former client of the petitioner made a complaint with the Director of Employment Standards that the petitioner was violating s. 10 of the Employment Standards Act, R.S.B.C. 1996, c. 113 (“the Act”). Section 10 of the Act provides as follows:

A person must not request, charge or receive, directly or indirectly, from a person seeking employment a payment for

(a) employing or obtaining employment for the person seeking employment, or

(b) providing information about employers seeking employees

The Tribunal found that although there was no evidence of any of the services offered by the petitioner, and there was no evidence of a schedule of fees charged by or paid to the petitioner, the evidence did demonstrate that the petitioner had “bundled” together a number of activities that the petitioner had identified in its contracts with clients as “services”, and that the petitioner had misused several terms in its contracts with its clients in order to obscure and mislead. Taking this into account, the Tribunal concluded that the petitioner does require individuals who are seeking employment to pay a fee to the petitioner in order for the petitioner to help them obtain employment, in contravention of s. 10 of the Act.

On review, the petitioner argued that the Tribunal had exceeded its jurisdiction because its application of the general law of contract was incorrect, its interpretation of s. 10 of the Act was incorrect, and it failed to comply with its statutory duty to give adequate reasons for its decisions.

The court emphasized that pursuant to the Administrative Tribunals Act, S.B.C. 2004, c. 45 the appropriate standard of review was patent unreasonableness and the Tribunal was entitled to a very high degree of deference. Applying this standard of review, the court could not find any basis for holding that the Tribunal’s decision was outside a range of reasonable outcomes and upheld the decision.

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