Interpretation Guidelines Manual British Columbia Employment Standards Act and Regulations

EMPLOYMENT STANDARDS ACT - PART 13 - APPEALS

ESA Section 112 – Appeal of director’s determination


Contents:

Summary
Text of Legislation
Policy Interpretation
Related Information


Summary

This section details the grounds on which a person may appeal a director’s determination and the period within which an appeal must be made.


Text of Legislation

112. (1) Subject to this section, a person served with a determination may appeal the determination to the tribunal on one or more of the following grounds:

(a) the director erred in law;

(b) the director failed to observe the principles of natural justice in making the determination;

(c) evidence has become available that was not available at the time the determination was being made.

(2) A person who wishes to appeal a determination to the tribunal under subsection (1) must, within the appeal period established under subsection (3),

(a) deliver to the office of the tribunal

(i) a written request specifying the grounds on which the appeal is based under subsection (1),

(i.1) a copy of the director’s written reasons for the determination, and,

(ii) payment of the appeal fee, if any, prescribed by regulation, and

(b) deliver a copy of the request under paragraph (a) (i) to the director.

(3) The appeal period referred to in subsection (2) is

(a) 30 days after the date of service of the determination, if the person was served by registered mail, and

(b) 21 days after the date of service of the determination, if the person was personally served or served under section 122 (3).

(4) If, after an appeal is made by a person in accordance with subsections (2) and (3), the determination that is the subject of the appeal is varied by the director under section 86, the person, within 7 days of being notified of the variation,

(a) may amend the request for appeal under subsection (2) (a) (i) and deliver it to the tribunal, and

(b) if the request for appeal is amended, must deliver a copy of the amended request to the director.

(5) On receiving a copy of the request under subsection (2) (b) or amended request under subsection (4) (b), the director must provide the tribunal with the record that was before the director at the time the determination, or variation of it, was made, including any witness statement and document considered by the director.

(5.1) The director is a party to an appeal under this section.

(6) The filing of a determination under section 91 does not prevent the determination being appealed.

(7) This section does not apply to a determination made under section 119.


Policy Interpretation

Subsection (1)

A person can appeal a determination by delivering to the office of the tribunal a written request within the appeal period established in subsection (3) below. Where prescribed by regulation, an appeal fee must be included with the written request

An appeal will only be granted by the tribunal on one or more of the following grounds:

  • error in law
  • denial of the principles of natural justice
  • evidence has become available that was not available at the time the determination was being made

Subsection (2)

The written appeal request must meet the following requirements:

  • It must written and must be delivered to the office of the tribunal;
  • The written request must specify the grounds on which the appeal is based under subsection (1)
  • A copy of the director's written reasons for the determination must be included
  • If prescribed by regulation, must include payment of an appeal fee
  • A copy of the appeal request must be delivered to an office of the Employment Standards Branch

Subsection (3)

The appeal period is based on the method of service, as follows:

  • 30 days after the date of service if the person was served by registered mail
  • 21 days after the date of service if the person was personally served
  • 21 days after the date of service when the determination has been transmitted electronically or by fax machine (in accordance with s.122(3) of the Act) at the request of a person on whom a determination is required to be served.

Subsection (4)

If a determination is varied by the director under s.86 of the Act, after an appeal has been made by a person in accordance with this section, the person may:

  • amend the request for appeal under subsection 2(a)(i) and deliver it to the tribunal; and
  • if the request for appeal is amended, deliver a copy of the amended request to the director

within 7 days of being notified of the variation.

Subsection (5)

Where the director receives a copy of a request to appeal a determination under subsection (2)(b) or where a request for an appeal is amended under subsection 4(b), the director must provide the tribunal with the information that was available to the director at the time the determination under subsection (2), or variation of the determination under subsection (4), was made. This will include any witness statement and all documents that were considered by the director.

Subsection (5.1)

The director is responsible for the administration and enforcement of the Act. The director is entitled to participate fully in any appeal before the tribunal.

Subsection (6)

An appeal request can be made even if a determination has been filed in Supreme Court under s.91 of the Act. Where money is collected as a result of a judgment of the court, the director will administer any funds in accordance with s.99 of the Act. Interest on money received by the director will be paid in accordance with the Employment Standards Regulation, s.27.

Subsection (7)

Where there are reciprocal provisions with another jurisdiction in or outside Canada for enforcement of an order, judgment or certificate with respect to outstanding wages from another jurisdiction, the director may make a determination requiring payment of those wages and file the determination in a Supreme Court registry.

Where any person is served with a determination under this section, they may only appeal the determination to the Supreme Court in accordance with s.119 of the Act.


Related Information

Employment Standards Tribunal Decisions

Britco Structures Ltd., BC EST #260/03
Bruce Davies et al, Directors or Officers of Merilus Technologies Inc., BC EST #171/03
Imperial Limousine Service Ltd., BC EST #014/05

Related sections of the Act or Regulation

ESA

ESR

Other
See Employment Standards Tribunal website at www.bcest.bc.ca