Carfra Lawton LLP | Victoria BC

Threat of termination is not grounds for suing employer

The Employment Standards Act (“ESA”) requires employers to pay overtime, statutory holiday, vacation, and severance to employees. If an employee complains that his employer is not complying with the ESA, section 83 of the Act specifically prohibits the employer from threatening to terminate the employee for making that complaint.

In Belanger v. Tsetsaut Ventures Ltd., 2019 BCSC 560, a number of employees made complaints to the Director of Employment Standards that their employer, the defendant, wasn’t complying with pay provisions in the ESA. After the complaints were made, the employer threatened to terminate those employees. They sued the employer for a breach of section 83 and alleged the tort of intimidation.

The court decided that the employees could not bring this type of claim through a civil action in Supreme Court. The court has previously held that the Director of Employment Standards has exclusive jurisdiction over matters covered by the ESA. Complaints of breach of the ESA must be made to the Director, and not to the courts. Furthermore, the court held that the tort of intimidation does not apply to a threat to terminate an employment contract. If the employer had actually carried out the threat and terminated the employment contracts, then the employees could have sued their employer. A mere threat is not enough.

Case summary by Karen Orr