B.C. ruling provides certainty on limitation periods in employment standards cases, lawyer says

By Ian Burns

Law360 Canada (June 16, 2022, 8:56 AM EDT) -- British Columbia’s top court has clarified the test for limitation periods in a provincial employment standards determination, with a lawyer saying the decision makes dealing with such determinations consistent with the approach taken to findings by other provincial tribunals.

Kuen Yu Kwok, also known as Joseph Kwok, brought forward the case to determine which of three limitation periods for enforcement would govern a determination made by B.C.’s director of employment standards: a 10-year period under the Limitation Act for an order of the provincial Supreme Court, a six-year limitation under the Financial Administration Act (FAA) for government claims, or two-year time frame under the Limitation Act if the determination is a “claim” that is neither a “judgment, order or award of the Supreme Court of British Columbia” nor a “government claim.”
Kwok, who was on the hook for nearly $160,000 due to claims of unpaid wages, argued the two-year period applied and had since expired, but the director asserted the limitation period was 10 years. A lower court judge determined a six-year limitation was correct because the determination was a government claim within the meaning of the FAA (British Columbia (Employment Standards) v. Kwok 2021 BCSC 1387)

But Justice J. Christopher Grauer, who wrote the unanimous decision of the B.C. Court of Appeal, ruled a filed determination from the director falls within the definition of a “local judgment” under the Limitation Act and thus subject to a 10-year limitation period.

“The point … is not whether the legislature intended a directive or determination or certificate to be a court order or a judgment, but whether the legislature intended that document to be enforced as a court order or a judgment,” he wrote in British Columbia (Employment Standards) v. Kwok 2022 BCCA 196, issued June 7. “It is also evident, in my opinion, that when the legislature enacted that a determination could be filed in the Supreme Court registry, and if so filed, would be enforceable in the same manner as a judgment of the Supreme Court, it was aware and intended that the determination would thereby be certified as a judgment by the registrar of the Supreme Court, as occurred here.”

Justin Wong, Roper Greyell LLP

Justin Wong, Roper Greyell LLP

Justin Wong, a labour and employment lawyer with Vancouver’s Roper Greyell LLP, said the court’s ruling makes the approach to an employment standards determination consistent with how things are done while dealing with most other tribunal decisions in the province.

“Overall it provides certainty — it was one of those things that people likely didn’t consider because it was assumed that a determination was subject to a 10-year limitation period,” said Wong, who was not involved in the case. “The court appreciates the fact that legislatures don’t exactly use the exact same wording every time, but the overall intention is the same, so they are trying to make things more consistent. You now have less of a worry that you have missed a limitation period you didn’t even think of.”

John Shields of Shields Harney, who represented Kwok, said in an e-mail that he respected the decision of the court.

“And that the decision will assist unpaid employees in the future, which is a lofty and proper social goal,” he said.

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