To Be or to Be Enforceable As? That Is the Question

Written by Daniel Standing LL.B., Editor, First Reference Inc.

The beginning of Prince Hamlet’s soliloquy may have had a nicer ring to it, but the above title captures the essence of the issue in a recent British Columbia decision. In British Columbia (Director of Employment Standards) v. Kwok, [2022], the Court of Appeal sheds light on the limitation period that applies to a determination of the Director of that province’s Employment Standards Branch filed with the Supreme Court registry. Forced to choose between three options, the court settled on the longest one, a 10-year limitation period. As it turns out, the determination doesn’t have to be a judgment, it just has to be enforceable as one to be subject to the 10-year period.

Background

When some 14 employees of an investment company complained to the Employment Standards Branch that they were owed unpaid wages, the Branch investigated and determined the complaint was substantiated. This resulted in the Employment Standards Branch issuing the director of the company a Determination-a decision compelling it to pay the wages-by cheque or money order within five days. The amount owed was $159,392.63.

The next day, the Employment Standards Branch filed the Determination with the British Columbia Supreme Court, making the debt enforceable as if it were a judgment of the court. Procedurally, this led to a Certificate of Judgment being registered as a charge against two properties owned by the director. This was in 2016.

The next key date was in 2020, when the Employment Standards Branch renewed the Certificate of Judgment. At that point, the company’s director argued that it had stopped being enforceable two years prior by operation of the two-year limitation period under the Limitation Act. Under that legislation, a two-year limitation period applies to a “claim” that is neither a “judgment, order or award” of the court, nor a “government claim” under the Financial Administration Act. Such “government claims” are subject to a six-year limitation period, whereas the enforcement of judgments, orders and awards of the court are subject to a 10-year limitation period.

The chambers judge who heard the matter at first instance agreed with the director’s arguments that the Determination was not a “judgment” subject to the 10-year limitation period. Whereas other provincial legislation explicitly deems certain documents to be a judgment of the Supreme Court, the director argued, this language is lacking in relation to Determinations. The director argued the Certificate of Judgment doesn’t make the Determination a judgment; rather, it makes it enforceable in the same way as a judgment, such as through garnishment or registration against the title. The chamber’s judge agreed and settled on the six-year limitation period because, in the judge’s view, the Determination was a “government claim.” This became an issue under appeal at the British Columbia Court of Appeal.

The court’s decision

On appeal, the Court began with a discussion of principles of statutory interpretation, holding that the words of the legislation alone don’t dictate the result. Also relevant is the legislative scheme, the purpose of the legislation and the intention of the legislature. This is reflected in the Interpretation Act‘s requirement that legislation be interpreted remedially and given a “large and liberal construction.”

Focusing on the enforcement context, the court noted that the whole point of filing a determination in the Supreme Court registry is to make it enforceable as a judgment. It held the court below failed to give proper weight to the legislative context of enforcement. It reasoned that “being enforceable in the same manner as a judgment would surely include being enforceable for the same length of time as a judgment.” It was satisfied that the legislation operated to treat the determination as a judgment of the court for the purposes of enforcement.

Next, the court distinguished a Supreme Court of Canada decision relied on by the company director arising out of Alberta’s limitations legislation, holding that it actually supported the Employment Standards Branch. Essentially, the case held that an arbitral award is not enforceable unless it is first recognized by the Court of Queen’s Bench (as it was then called). The court said that was different than a determination, which is already directly enforceable without the court’s recognition; it only requires a Certificate of Judgment.

In the end, the question was not whether the Determination actually is a court order (which is what preoccupied the chamber’s judge); rather, it was about whether the Determination was intended to be enforced like a court order. The court answered this in the affirmative and, as such, held that a 10-year limitation period applied.

Key takeaways

This is a dense judgment and there is a lot to unpack. However, the simplicity of the result is owing to the court’s focus on the purpose of the statutory provision as a matter of statutory interpretation: It relates to enforcement. For that reason, the case is a good reminder of the pitfalls one can encounter when interpreting a statute without sufficient regard for its purpose. Determining a matter as seemingly simple as a limitation period can present its challenges when the law’s purpose is ignored.

Source:
British Columbia (Employment Standards) v. Kwok 2021 BCSC 1387
British Columbia (Employment Standards) v. Kwok 2022 BCCA 196
British Columbia (Director of Employment Standards) v. Kwok, [2022] B.C.J. No. 993, British Columbia Court of Appeal, E.A. Bennett, L.A. Fenlon and J.C. Grauer JJ.A., June 7, 2022. Digest No. TLD-September262022003 (LexisNexis, Legal Updates)

Comments

  1. Ok, this is a good summary. Thank you for writing it. However, a few points:

    1.) There is no such thing as the BC Court of Justice. This appeal was heard in the BC Court of Appeal.

    2.) The correct citation is 2022 BCCA 196, not “[2022] B.C.J. No. 993”

    3.) The appeal was to the BC Court of Appeal, not to the Supreme Court of BC (where the original judgement was made, see 2021 BCSC 1387).

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