A B.C. Supreme Court judge has dismissed a judicial review application from Bioriginal Food & Science Corp., allowing a tribunal decision to stand that cancelled an employment standards determination and ordered a fresh investigation into a former employee’s wage complaints.
The court ruled the Employment Standards Tribunal acted reasonably when it found the investigation process denied the worker natural justice, despite the case involving multiple submissions and spanning more than five years.
The worker filed her first complaint with the Employment Standards Branch in April 2018, alleging Bioriginal made unauthorized deductions from her wages. She sought $107,179 in compensation. Five additional complaints followed between 2019 and 2020, alleging mistreatment, wrongful dismissal, and violations of wage payment provisions.
Investigation spanning multiple delegates
Three different delegates handled the investigation over its lengthy course. The first delegate issued what he titled “Final Findings Regarding the Complaint” in October 2020, stating the employer had “terminated her employment” under section 66 of the Employment Standards Act by unilaterally changing her commission structure in May 2017. That report indicated Bioriginal could avoid a determination by paying $201,061.97.
No payment was made. The first delegate left the branch, and a second delegate was assigned in March 2022. A third delegate took over in September 2022 and eventually issued a determination in August 2023 ordering Bioriginal to pay $97,615.26.
Critically, the final determination contradicted the earlier “final findings.” The adjudicating delegate found no section 66 termination occurred in 2017, but instead concluded Bioriginal constructively dismissed the worker in November 2020.
The worker appealed, arguing she was denied natural justice because she had relied on the first delegate’s findings throughout the process. The tribunal initially dismissed her appeal in December 2023.
Reconsideration decision favours worker
On reconsideration in September 2024, the tribunal reversed course. It found that while the worker had ample opportunity to make submissions, the process frustrated her ability to present her case effectively.
“If new findings are made in a determination which contradict other findings shared with the parties during the investigation of a complaint, so that the opportunity for an informed and effective presentation of a party’s case to the Tribunal is for that reason frustrated, a natural justice concern may arise,” the tribunal stated.
The tribunal noted the first delegate’s report established “final findings” that the employer dismissed the worker in May 2017 and owed her $201,061.97. While subsequent delegates suggested new findings might be made, neither shared new findings that altered the substance of the initial report until the final determination was issued.
“The failure to alert the Applicant that the Determination would incorporate new findings means that the process followed in the investigation was unfair,” the tribunal found.
The tribunal cancelled the determination and sent the matter back to the director for a fresh investigation.
Employer challenges remedy
Bioriginal sought judicial review, arguing the tribunal erred in finding a procedural fairness breach and that the remedy of starting over was patently unreasonable given the case’s length and the volume of submissions already made.
The court applied the highly deferential patent unreasonableness standard, noting the tribunal has exclusive jurisdiction over employment standards appeals under a privative clause. Under this standard, a decision must be “clearly irrational” or “evidently not in accordance with reason” to be overturned.
The court found the tribunal’s decision was not patently unreasonable. The tribunal made a “careful distinction between the denial of an opportunity to provide submissions generally, and the ability to respond to the nature and substance of issues that are material to the result.”
“The Tribunal found it was reasonable for [the worker] to rely on ‘Final Findings’ of Adjudicator S, in the absence of specific rationales from later Adjudicators for departing from those findings,” the court stated.
On the remedy, the court rejected Bioriginal’s argument that sending the entire matter back was unreasonable. The tribunal had explicitly stated the key issues involved findings of fact not amenable to review on appeal and under the exclusive jurisdiction of the director.
“While certainly not convenient, and no doubt frustrating for all the parties, the Tribunal’s decision on remedy does not meet the high threshold of patently unreasonable,” the court concluded.
The court dismissed the petition and ordered Bioriginal to pay costs to the worker.
For more information, see Bioriginal Food & Science Corp. v Employment Standards Tribunal, 2025 BCSC 2396 (CanLII).
