Skip to Content

Can a "professional" have his/her notice entitlement limited to that in the BC Employment Standards Act?

Jurisdiction: - British Columbia
Sector: - Education

Mr. Wong, a chartered accountant, was hired by UBC in a newly created position of Controller, commencing on September 3, 2002.

The letter confirming his employment stated that the terms and conditions of his employment would be those found in two agreements that UBC had entered into with the Association of Administrative and Professional Staff. One of these agreements contained the following terms in relation to notice:

An employee terminated during the probationary period for reasons other than just cause shall receive notice or pay in lieu of notice in accordance with the provision of the Employment Standards Act.

UBC ended up not implementing Wong's position and thus his employment was terminated just under 7 months later. UBC took the position that, in accordance with the employment contract, it was required to provide him with only 1 week's pay. However, "out of courtesy", it had paid him 1 month's salary.

At arbitration (under the Commercial Arbitration Act), Wong submitted that because CA's are excluded from the ESA, the notice provision in the agreement could not apply to him. Arbitrator Glasner agreed and awarded him $100,000 in lieu of notice.

On review, the chambers judge, applying a standard of review of correctness, concluded that the arbitrator was wrong in deciding that the notice provision did not apply to Wong simply because he was a CA. Specifically, she concluded that the statutory exclusion of certain professionals under the ESA by no means precludes the parties from agreeing to be bound by any provisions contained in the ESA in their contract of employment.

The Court of Appeal upheld the chambers judge's decision.

UBC v. Assoc. of Administrative and Professional Staff on behalf of Bill Wong and Glasner, Q.C.2005 BCSC 1286 

U.B.C. v. The Association of Administrative and Professional Staff on Behalf of Bill Wong, 2006 BCCA 491