Executive Summary: Key Legal and Evidentiary Issues

• Procedural fairness in the Employment Standards Branch investigation, given shifting delegates, a long delay, and “Final Findings” that were later departed from without clear notice to the complainant.

• Scope and effect of the “Final Findings” in the S Report, and whether the subsequent Determination could lawfully and fairly contradict those earlier findings without further explanation to the parties.

• Application of the patent unreasonableness standard to the Employment Standards Tribunal’s reconsideration decision, including its assessment of natural justice and its heavily discretionary remedial powers.

• Interaction between the Administrative Tribunals Act and the Employment Standards Act, particularly the operation of privative clauses and the Tribunal’s exclusive jurisdiction over facts, law, and discretion.

• Appropriateness of the remedy cancelling the Determination and remitting the matter for a fresh investigation, despite substantial delay, extensive submissions, and Bioriginal’s argument that narrower corrective steps were available.

• Allocation of costs following an unsuccessful judicial review, with the employer ordered to pay the former employee’s costs while no costs were awarded against the Tribunal or the Director.

Facts and procedural history

Bioriginal Food & Science Corp. employed Angela Zavediuk in a sales role from January 5, 2015, to November 16, 2020. She was paid a base salary plus commissions. During the relationship, her compensation structure was altered, including a significant change to her incentive commissions. Ms. Zavediuk believed that Bioriginal had made unauthorized deductions and other violations of the Employment Standards Act (ESA), and on April 22, 2018, she filed her first complaint with the Employment Standards Branch claiming over $100,000 in unpaid wages and related amounts. Over time she filed five further complaints, including allegations of mistreatment, wrongful dismissal, and violations of various ESA wage and scheduling provisions.

The Director of Employment Standards first assigned the file to one delegate (Delegate S), who issued several investigation reports, culminating in an October 21, 2020 report titled “Final Findings” that treated the May 2017 compensation change as a termination under section 66 and calculated that over $200,000 was owed to Ms. Zavediuk if Bioriginal did not pay by a set date. However, no formal determination followed, and there was an unexplained delay of more than a year. Delegate S then left the Branch. A second delegate (Delegate V) took over in March 2022 and issued an interim report in August 2022, treating the earlier work as “preliminary findings” and setting out the core legal questions around constructive termination, limitation periods, and the effect of section 66 on recovery. Before the matter concluded, Delegate V also left, and a third delegate (the Adjudicating Delegate) assumed conduct of the investigation.

The determination and appeal within the administrative process

The Adjudicating Delegate cross-disclosed evidence, invited submissions on issues framed by the V Report, and attempted mediation before proceeding to a formal determination. On August 31, 2023, more than five years after the first complaint, the Adjudicating Delegate issued a Determination under section 79 of the ESA. That Determination found Bioriginal had breached the ESA and ordered it to pay Ms. Zavediuk $97,615.26, including interest and administrative monetary penalties. Crucially, the new delegate rejected Delegate S’s earlier conclusion that a section 66 termination occurred in May 2017. Instead, the Determination held that Bioriginal had constructively terminated Ms. Zavediuk in November 2020 and disagreed that the 2017 pay change was a “substantial” alteration of employment conditions that would justify finding an earlier statutory dismissal.

Ms. Zavediuk appealed to the Employment Standards Tribunal. She argued that the Determination was inconsistent with the S Report’s “Final Findings,” that the Director failed to comply with section 78.1 ESA (requiring a written report and opportunity to respond), and that the shifts in findings had deprived her of natural justice. She also claimed errors of law and relied on alleged new evidence. In December 2023, the Tribunal dismissed her appeal, characterizing the S Report as preliminary, confirming that section 78.1 had been satisfied by multiple written reports and opportunities to respond, and upholding the Determination in full.

The reconsideration decision and remedy

In January 2024, Ms. Zavediuk applied to the Tribunal for reconsideration. In September 2024, the Tribunal issued a Reconsideration Decision that substantially changed course. The Tribunal held that, although the investigation had generated voluminous material and many opportunities for submissions, the process had become unfair in a more subtle but serious way. It found that the S Report and a follow-up email had been framed as “Final Findings” that told the parties the employer had dismissed Ms. Zavediuk under section 66 in May 2017 and that she was owed $201,061.97. The later delegates never squarely signaled that they might depart from those findings or gave a clear rationale in advance for doing so. As a result, the Tribunal concluded that Ms. Zavediuk, a self-represented lay litigant, reasonably focused her submissions on issues framed by the S Report and was never given a proper opportunity to address the underlying reasoning for rejecting the earlier section 66 conclusion and drastically reducing the quantum.

On that basis, the Tribunal found that the investigation process frustrated her ability to present her case on the real, evolving issues. It held that natural justice was breached and, exercising its remedial discretion, cancelled the Determination and remitted the matter to the Director for a new investigation and fresh determination. Because the key issues going to fairness involved factual findings about the employment contract, expectations about compensation, and related calculations that were within the Director’s exclusive jurisdiction, the Tribunal considered that it could not cure the problem itself by simply adjusting findings on appeal.

Judicial review and standard of review

Bioriginal then petitioned the Supreme Court of British Columbia for judicial review of the Tribunal’s Reconsideration Decision, arguing that the Tribunal’s fairness analysis and its choice of remedy were wrong in law, or at least patently unreasonable. The court had first to determine the proper standard of review. Given the strong privative clause in the Employment Standards Act, read together with section 58 of the Administrative Tribunals Act, and guided by appellate authorities such as Cariboo Gur Sikh Temple Society and Gorenshtein, the court held that questions falling within the Tribunal’s exclusive jurisdiction—including its assessment of whether the Director’s process met requirements of natural justice—were to be reviewed on a standard of patent unreasonableness. The same deferential standard also applied to the Tribunal’s remedial choices on reconsideration, which were recognized as discretionary in nature. The narrower, correctness-like fairness standard in section 58(2)(b) of the Administrative Tribunals Act was reserved for assessing whether the Tribunal itself had acted fairly in its own process, which was not in issue.

Outcome and consequences

Applying a “reasons-first” review, the court concluded that the Tribunal’s view—that the evolving investigation and multiple delegates, combined with the earlier “Final Findings,” had subtly but materially undermined Ms. Zavediuk’s ability to respond to the true issues—was a nuanced position that did not come close to meeting the high threshold of patent unreasonableness. Likewise, although the court acknowledged that starting over after years of process was inefficient and frustrating for all parties, it held that remitting the matter for a fresh investigation and determination was a discretionary choice squarely within the Tribunal’s authority and supported by its explanation that only the Director could properly make the necessary factual findings. The judicial review petition was therefore dismissed, leaving the Reconsideration Decision and the fresh-investigation remedy in place. The successful party on the judicial review was Angela Zavediuk, who was awarded her costs against Bioriginal, while no costs were ordered for or against the Tribunal or the Director; the exact amount of those costs is not specified in the decision, so no precise figure can be determined from the judgment.