Pedersen v. Harbottle et al Date:, 2015 BCPC 436

Citation: Pedersen v. Harbottle et al Date: 20150814 2015 BCPC 0436 File No: 14-49733 Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA (Small Claims) BETWEEN: MARCIA PEDERSEN CLAIMANT AND: DWIGHT C. HARBOTTLE AND DWIGHT C. HARBOTTLE LAW CORPORATION DEFENDANTS REASONS FOR JUDGMENT OF HER WORSHIP M. PRATCHETT Counsel for the Claimant: D. Barker Appearing for the Defendants: D. Harbottle

Place of Hearing: Vancouver , B.C. Date of Hearing: July 22, 2015 Date of Judgment: August 14, 2015 [ 1 ] Ms. Pedersen is and was at all material times a senior legal assistant. [ 2 ] Mr. Harbottle is and was at all material times a senior barrister, operating his own law corporation. [ 3 ] In early 2013 Ms. Pedersen was introduced to Mr. Harbottle through a placement agency and in February 2013 Ms. Pedersen was offered full time employment with Mr. Harbottle commencing March 4, 2013.

The Claimant ceased employment with the Defendant on January 17, 2014. [ 4 ] No formal employment contract was prepared or executed. The two areas in dispute are the entitlement to overtime and the duration and payment of annual holidays. [ 5 ] The Claimant brings this action against her former employee, Dwight C., Harbottle and Dwight C. Harbottle Law Corporation for: (

a) alleged unpaid overtime; (

b) alleged unpaid holiday pay. The Notice of Claim alleges that there are seven days accrued vacation time unpaid and owing pursuant to the provisions of the Employment Standards Act , RSBC 1996 c 113; (

c) bank charges and lost interest alleged due as a result of instances of not being paid on the 15th and 30th of each month. [ 6 ] The Defendant counterclaims against the Claimant. This claim is related to Ms. Pedersen’s abrupt departure without providing two weeks’ notice. CLAIM [ 7 ] The threshold issue to be addressed is whether this Court has jurisdiction to hear the claim made by Ms.

Pedersen, or whether the matter is within the exclusive jurisdiction of the Director of Employment Standards under the enforcement provisions of the Employment Standards Act , R.S.B.C. 1996, c. 113 (the “ ESA ”). [ 8 ] For reasons not explained, in the written submissions the Claimant refers to the Canada Labour Code R.S.C. 1985, c. L-2 (the “ Code ”):

section 166 (definition – for the definition of “overtime”),

section 174 (overtime pay),

section 188 (termination of employment during year),

section 247 (payment of wages),

section 254 (pay statement). These provisions are all found in

Part III of the Code , which deals with standard hours, wages, vacations and holidays.

Section 167 sets out the categories of employees and employers which are captured by

Part III 167.

(1) This Part applies (

a) to employment in or in connection with the operation of any federal work, undertaking or business other than a work, undertaking or business of a local or private nature in Yukon, the Northwest Territories or Nunavut; (

b) to and in respect of employees who are employed in or in connection with any federal work, undertaking or business described in paragraph (a); (

c) to and in respect of any employers of the employees described in paragraph (b); (

d) to and in respect of any corporation established to perform any function or duty on behalf of the Government of Canada other than a department as defined in the Financial Administration Act ; and (

e) to or in respect of any Canadian carrier, as defined in

section 2 of the Telecommunications Act , that is an agent of Her Majesty in right of a province. [ 9 ] The Claimant does not fall within the category of employees described in subsection 167(1) of the Code . In addition, Dwight C. Harbottle Law Corporation does not fall within the category of employers described in subsection 167(1) of the Code . As a result, the Code provisions cited by the Claimant do not apply to the resolution of this dispute. [ 10 ] The ESA i s the applicable statute.

In addition, the Claimant refers to the provisions of the ESA and expressly refers to the ESA in the Notice of Claim as the basis for holiday pay claim. [ 11 ] The issue of whether the claims for overtime and holiday pay are within the exclusive jurisdiction of the Director of Employment Standards was addressed and decided by the British Columbia Court of Appeal in Macaraeg v. E Care Contact Centers Ltd ., 2008 BCCA 182 and cases following.

[12] At paragraph 16 of her written argument, the Claimant cites Macaraeg, (supra) for the proposition that you can bring overtimeclaims in a civil court action. Paragraph 16 of the Claimants written argument states as follows: “In his Written Reasons, the Honourable Mr. Justice Chiasson (with the Honourable Chief Justice Finch and the Honourable Mr. JusticeTysoe concurring) states: [6]… payment for overtime …does not preclude pursuing overtime payments in a civil court action.” [13] This is not correct. At the reasons for judgment of Chiasson J.A. at paragraph [6], Mr.

Justice Chiasson was actuallysummarizing the trial judge’s conclusions, stating “the judge concluded payment for overtime in accordance with the mandatoryprovisions of the ESA was an implied term in Ms. Macaraeg’s employment contract with E Care and the ESA does not preclude pursuingovertime payments in a civil court action. E Care appealed.” [14] The Court then went on to overturn the findings of the trial judge and to uphold the appeal. [15] An employee’s entitlement to overtime pay and vacation pay is addressed in the ESA.

Part 4 deals with overtime and

Part 7deals with vacation pay. Subsection 74(1) of the ESA provides redress for an employee whose rights under

Part 4 and/or

Part 7 havebeen breached. An employee can complain to the Director of Employment Standards, who may then conduct an investigation and issuecertain remedies in the event that a breach of the ESA is found. [16] In concluding that Ms. Macaraeg was not entitled to enforce her statutory right to overtime pay in a civil action, Chiasson J.A.emphasized that the ESA provided a comprehensive administrative scheme for the granting and enforcement of employee rights,including the employee’s right to overtime (at para. 86).

As a result, the Court of Appeal concluded that there was a presumption thatenforcement of such rights is to be done through the statutory regime set out in the ESA, and not by way of a civil action (at paras. 102-103). The Director of Employment Standards retains the exclusive jurisdiction to determine statutory claims, subject to an appeal to theEmployment Standards Tribunal (at para. 104). [17] Leave to appeal from the judgment of the BC Court of Appeal was refused by the Supreme Court of Canada: Cori Macaraeg v.E Care Contact Centres Ltd., (SCC).

The case remains good law in British Columbia and continues to stand for theproposition that statutory claims for overtime pay are to be resolved by the Employment Standards Tribunal. [18] Similar issues were recently addressed by the BC Supreme Court in Rothberger v. Concord Excavating & Contracting Ltd.,2015 BCSC 729, (“Rothberger”). In Rothberger, the plaintiff alleged that he was entitled to damages for unpaid overtime hours.

Indealing with his overtime claim, Harvey J. cited Macaraeg as determinative of the issue: [82] The rights granted by the employment standards legislation are not automatically incorporated into employment contracts as amatter of law, as the intention of the parties must be considered: Macaraeg v. E Care Contact Centers Ltd., 2008 BCCA 182 [Macaraeg] at para. 100. [83] Further, a plaintiff is not entitled to enforce his or her statutory rights to overtime pay in a civil action, as the statutorymechanisms under the ESA have the exclusive jurisdiction to determine such claims.

Given that the plaintiff availed himself to the fullextent of the statutory remedy available under the ESA, he cannot recover beyond that in this action: Macaraeg v. E Care ContactCenters Ltd., 2008 BCCA 182 at paras. 101-104. [19] Macaraeg has been cited in cases dealing with circumstances beyond claims for overtime pay. It was cited in Doerksen v. FirstOpen Heart Society of British Columbia, 2010 BCSC 129, (“Doerksen”) and Giza v.

Sechelt School Bus Service Ltd., 2011 BCSC 669,(“Giza”) varied on other grounds, 2012 BCCA 18, both of which are cases dealing with claims for holiday pay. [20] In Doerksen, the plaintiffs sought an order granting them leave to make a further amendment to their amended statement ofclaim. In part, the plaintiffs sought statutory holidays pay. The defendant argued that Macaraeg is authority for the proposition that theDirector of Employment Standards has the exclusive jurisdiction to determine the plaintiff’s claims for overtime, statutory holiday payand vacation pay.

Wilson J. agreed with the defendant that Macaraeg was dispositive of the issue (at para. 81). Wilson J. took note ofMacaraeg as follows: [83] In Macaraeg, the court wrote, at para. 73: The law is clear: the general rule is there is no cause of action at common law to enforce statutorily-conferred rights. [21] Applying Macaraeg to the facts in Doerksen, Wilson J. concluded that the BC Supreme Court has no jurisdiction to entertain aclaim for holiday pay, as it is a statutorily conferred right (at para. 86).

Consequently, exclusive jurisdiction to determine a claim forholiday pay lies with the Director of Employment Standards. [22] Similarly, one of the issues in Giza was whether the plaintiff was entitled to damages for unpaid statutory holiday pay. Gray J.noted that while the Court of Appeal in Macaraeg considered a claim for unpaid overtime, both the overtime pay provisions and thestatutory holiday pay provisions of the ESA are subject to the same administrative scheme (at para. 74).

Following Giza, it is alsoreasonable to conclude that since the vacation pay provision of the ESA is subject to the same administrative scheme as overtime andstatutory holiday pay, the BC Court of Appeal’s conclusion in Macaraeg applies with equal weight to claims for vacation pay. [23] The Claimant opened her written argument with reference to

section 118 of the ESA.

Section 118 states:

Right to sue preserved 118 Subject to

section 82, nothing in this Act or the regulations affects a person’s right to commence and maintain an action that, but for this Act , the person would have had the right to commence and maintain. [ 24 ]

Section 118 does not give an employee a choice whether or not to commence actions pursuant to the ESA administrative procedure or by way of court action. In Macaraeg , Chiasson J.A. explained how

section 118 operates: [97] n my view, this

section addresses actions to enforce rights that exist apart from the provisions of the ESA ; that is, rights a party could enforce regardless of the ESA . The

section does not open the door to civil actions to enforce rights conferred by the statute. [ 25 ] It is also important to note that pursuant to section 74(3) of the ESA , a 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. However, the fact that Ms. Pedersen may now be statute-barred from filing a complaint pursuant to

section 74 of the ESA does not give this Court jurisdiction over her claims for overtime pay and vacation pay. [ 26 ] In McGinnis v. MA Concrete Ltd. , 2013 BCSC 585 , the defendant sought a declaration that the BC Supreme Court lacked the jurisdiction to address aspects of the plaintiff’s notice of claim, or alternatively, an order that particular portions of that claim be struck. The plaintiff testified that he had attempted to bring his overtime claim before the Employment Standards Branch but his claim was rejected.

He stated that he eventually withdrew his claim from the Employment Standards Branch because he was told that he had brought his claim outside of the six month period prescribed under the ESA . At para. 13, Voith J. cited Macaraeg for the principle that the ESA is a complete code for the enforcement of the statutory rights contained within. He then said the following about whether the plaintiff could turn to the courts once his claim was outside of the six month time period stipulated under the ESA : [15] I have said that Mr.

McGinnis commenced the instant action for overtime pay because he failed to advance that claim through the proper avenue within the time periods required under the Act . I do not consider that he is able, in such circumstances, to turn to the courts to assist him. There are many statutes and specialized regimes which, for better or worse, prescribe more rigid time periods for the filing of a complaint or the commencement of an action than might reasonably be expected.

Whether a party can subsequently turn to the courts for assistance in such circumstances requires an assessment of the particular statute. … [17] I am satisfied that the claim which Mr. McGinnis seeks to advance for overtime pay cannot be brought in this Court. Accordingly, I am striking paragraphs 1 and 2 of

Part 2 “Relief Sought” as well as paragraph 3 and the relevant part of paragraph 4 of

Part 3 “Legal Basis” in the Notice of Civil Claim that Mr. McGinnis has filed. I wish to emphasize that no part of these reasons impacts on those portions of his pleading that are based on a claim for unjust enrichment or negligent misrepresentation. [ 27 ] In conclusion, this court has no jurisdiction in relation to the claim for overtime or holiday pay and the claim is dismissed. [ 28 ] In relation to the Claimant’s claim for interest for late payment of wages, this claim was not established on the facts and is dismissed. COUNTERCLAIM [ 29 ] Mr.

Harbottle asserts that the Claimant quit her employment without any notice period being given. The departure was effected by leaving a note on her desk stating the fact that she had quit, effective immediately. Mr. Harbottle stated that this abrupt departure came at a critical period of time in relation to a particular time sensitive and large matter that he was working on, when he desperately needed all hands on deck. He quickly replaced the Claimant with his previous employee, Ms. Rose, who stepped into the breach to assist. However for personal reasons Ms. Rose was unable to work full time. Mr.

Harbottle nonetheless paid her full time wages and now seeks damages against the Claimant for the difference between what he paid Ms. Rose and the time she actually worked. [ 30 ] There is no legal common law obligation on an employee to give a period of notice prior to leaving her place of employment. That obligation would have to have been found in a written contract of employment. While one might hope that an employee with the experience of the Claimant would give reasonable notice and assist in any required transition, she was not obligated to do so.

From the Claimant’s perspective, the relationship of employer/employee had broken down to the point where she could no longer tolerate her working environment and the manner of her departure was reactive. Her note stated that she quit effective immediately. Mr. Harbottle stated that the note was found on the Claimant’s desk under a pile of papers, suggesting, I assume, that the note was not effective to terminate the employment relationship. I place no weight on the evidence of how the note was found. The Claimant stated that she left the note where it could be seen.

It is not known who placed papers on top of the note. In any event the note was found in a timely fashion. The note was legally adequate. [ 31 ] In addition and in any event, I do not find that the damages were established as a result of not having received reasonable notice or that the damages sought are recoverable against the Claimant. There was no evidence that the Defendant made efforts to engage a temporary full time replacement through an agency. The Claimant elected instead to engage Ms. Rose to assist at this time because she had been a long term employee of Mr.

Harbottle and there was clearly a relationship of trust and loyalty that had developed between them over 20 years. The Defendant was confident that Ms. Rose could undertake the work needed in relation to the time sensitive matter that he was working on and that degree of confidence in his ability to rely on Ms. Rose was a benefit to the Defendant. He chose to compensate Ms. Rose generously but he was not legally obligated to do so.

[ 32 ] For the reasons stated, the Counterclaim is dismissed. COSTS [ 33 ] Neither party is awarded costs. _______________________ M. Pratchett Adjudicator