Shalagin (Re), 2022 BCEST 43

Naz Mitha QC and Erin White successfully represented the respondent employer in the appeal of a determination issued by a delegate of the Director of Employment Standards in a matter involving the exclusion of an accountant from the BC Employment Standards Act (“ESA”).

The complainant was employed as a Senior Financial Analyst. During his employment, the complainant obtained a Chartered Professional Accountant designation and became a member of the Organization of Chartered Professional Accountants of BC (“CPABC”) under the Chartered Professional Accountants Act (“CPAA”).

Following the complainant’s termination from employment in March 2020, he filed an employment standards complaint. The employer argued that the complaint should be dismissed because the complainant was excluded from the ESA pursuant to section 31(b) of the Employment Standards Regulation. 

The delegate agreed with the employer, and found that the ESA did not apply to the employee because he was carrying on the occupation governed by the CPAA. In particular, the delegate rejected the complainant’s argument that only accountants who perform the services set out in section 47(1) of the CPAA are excluded from the ESA. 

On appeal to the Employment Standards Tribunal, the complainant argued that the delegate erred in law in declining to find that the occupation governed by the CPAA is limited to services listed in section 47(1) of the CPAA. In addition, the complainant argued that the delegate failed to observe the principles of natural justice by improperly relying on his resume and information obtained by CPABC.

In the result, the Tribunal dismissed both grounds of appeal and upheld the Determination. 

The complainant’s subsequent application for reconsideration of the Tribunal decision was dismissed, in reasons indexed as Shalagin (Re), 2022 BCEST 53.