Interpretation Guidelines Manual British Columbia Employment Standards Act and Regulations
EMPLOYMENT STANDARDS ACT - PART 13 - APPEALS
ESA Section 113 – Director’s determination may be suspended
This section outlines the conditions under which a tribunal may suspend the director’s determination.
113. (1) A person who appeals a determination may request the tribunal to suspend the effect of the determination.
(2) The tribunal may suspend the determination for the period and subject to the conditions it thinks appropriate, but only if the person who requests the suspension deposits with the director either
(a) the total amount, if any, required to be paid under the determination, or
(b) a smaller amount that the tribunal considers adequate in the circumstances of the appeal.
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 his trust account as a courtesy to the employer pending the resolution of the appeal process.
A person who appeals a determination issued pursuant to s.79 of the Act may request the tribunal to make a formal order that the Director not pay 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.
This section does not apply to a determination issued pursuant s.119, which may only be appealed to the Supreme Court.
In unusual circumstances, the tribunal may suspend the effect of the determination while requiring a lesser amount to be deposited with the director. The Tribunal will consider various factors including financial hardship to the applicant and possible prejudice to the affected employees.
Interest accrues on all wages held in trust in accordance with the Employment Standards Regulation, s.27.
After the tribunal has issued a reconsideration decision, it has no further jurisdiction to require the Director to hold funds in trust and the funds will be disbursed.
Judicial Review Proceedings
If an employer advises the Director that it intends to seek Judicial Review, the Director will continue to hold the funds in trust for 60 days before disbursing them. If an appellant seeks Judicial Review of the tribunal’s reconsideration decision, the appellant must seek an order from the Court to require the Director to continue holding funds in trust.
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
- 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
See Employment Standards Tribunal website at www.bcest.bc.ca