Director's Determination May Be Suspended - Act Part 13, Section 113

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Contents:

Summary
Text of Legislation
Policy Interpretation
Related Information

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Summary

This section outlines the conditions under which a tribunal may suspend the director’s determination.

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Text of Legislation

113. (1) A person who appeals a determination may request the tribunal to suspend the effect of the determination.

(2) The tribunal may, if requested to do so under subsection (1), suspend a determination for the period and subject to the conditions it considers appropriate.

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Policy Interpretation

Subsection (1)

The Director may commence collection action as soon as a determination is issued, or may wait until appeal proceedings are concluded. If collection action is commenced while an appeal is ongoing, the Director normally holds funds in a trust account pending the resolution of the appeal process.

A person who appeals a determination issued pursuant to section 79 may request the Tribunal to make a formal order that the Director not enforce the determination, including pursuing further collections or paying out wages found owing under a determination. The applicant must show that the suspension request is warranted.

The Director will usually not take a position on suspension requests on the condition that the total amount of wages required to be paid under the determination is sent to the Director to be deposited in the Director’s trust account pursuant to section 112(3.1).

This section does not apply to a determination issued pursuant to section 119, which may only be appealed to the Supreme Court.

Subsection (2)

If requested under subsectoin (1), the Tribunal may suspend the effect of the determination.

Judicial review proceedings

If an appellant seeks judicial review of the Tribunal’s reconsideration decision, the appellant must seek an order from the Supreme Court to require the Director to continue holding funds in trust. If an employer advises the Director that they intend to seek judicial review, the Director will continue to hold the funds in trust for a reasonable period of time in order to allow the appellant to seek a Supreme Court order.

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Related Information

Employment Standards Tribunal Decisions

McMillan v. British Columbia (Employment Standards) 2018 BCCA 233

Johnathan Miller, a Director or Officer of Abraxus Security Ltd., BC EST #090/10

Related sections of the Act or Regulation

ESA

• s.79, Determinations and consequences
• s.81, Notifying others of determination
• s.82, No other proceedings
• s.86, Power to reconsider
• s.91, Determination or order may be filed and enforced as judgment
• Part 12 – Employment Standards Tribunal
• s.114, After an appeal is requested
• s.115, Tribunal’s orders
• s.116, Reconsideration of orders and decisions
• s.119, Extraprovincial certificates
• s.122, Service of determinations and demands

Other

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