No Overtime Class Actions in BC

In the province of British Columbia workers are entitled to be paid overtime pay for work in excess of 8 hours per day or 40 hours per week, pursuant to the Employment Standards Act. Some exceptions exist for categories of workers (eg. high tech workers, articled law students, etc.) but the statutory minimums are of wide application.

In rare situations, individual employment agreements may contain actual contractual clauses that require the employer to pay overtime pay for overtime work. Contractual obligations to pay overtime arise due to express agreement, on occasion, or a practice where the employer pays overtime.

Grey areas may arise where it is hard to determine if a practice of paying overtime justifies a finding of an agreement to pay overtime, or simply reflects the employer's compliance with the statute. The clearest example of a contract of this sort is where there is practice of paying overtime when the statute does not apply.

Employees in BC have been restricted for many years from advancing a claim for overtime pay in the courts.

A number of court cases dating from at least the '80's interpreted established the proposition that a court action for overtime pay can only be justified when there is an underlying contract to be enforced. Claims based solely on statutory rights from the Employment Standards Act had to be advanced following the claims procedure prescribed by the Act.

In our experience, there are a great many situations where employers fail to pay required overtime pay, but employees do not take any action. No doubt, employees who continue to work for employers who fail to pay overtime feel that if they advance a claim, they might be risking their jobs.

Also, even if employees do make statutory claims for overtime, there is a prohibition in the BC Act against going back more than 6 months. Beyond that, actions are barred.

Because of these systemic problems, TevlinGleadle attempted, successfully at the BC Supreme Court Level, but unsuccessfully at the BC Court of Appeal level, to advance an overtime class action for a group of employees who could not ground their overtime claim on anything other than the statute.

In Macaraeg v. E-Care Payments Systems Madam Justice Wedge of the BC Supreme Court agreed with submissions by plaintiff's counsel that due to developments in Canadian law (the Supreme Court of Canada decisions in Parry Sound, and Machtinger v. HOJ Industries) a class action to enforce overtime rights was possible.

The British Columbia Court of Appeal overturned Madam Justice Wedge's decision, because of its view that the legislature in the Employment Standards Act only intended to create an overtime right that was enforceable via the mechanism of the Act.

TevlinGleadle sought leave to appeal the matter to the Supreme Court of Canada, but the application was refused without reasons.

This is an area that cries out for reform. The BC legislature has enacted a requirement that overtime pay be paid, for overtime work. Yet, the enforcement mechanisms are inadequate, in our view. The staff at the BC Employment Standards Branch do not have the resources to undertake significant investigations of abuses of overtime rules.

And, there is a fundamental practical block for current employers to advance claims against their employers.

The Class Proceedings Act preserves anonymity and if this approach was available for employees, we feel that the objects of the Act regarding overtime pay would be achieved.