A while back, I mentioned an Ontario Court of Appeal case called Evagalista v. Number 7 Sales as part of my discussion of whether ESA entitlements (like overtime pay) are implied terms of employment contracts.  Evagalista was a wrongful dismissal lawsuit. As part of the remedy, the Court ordered the employer to pay the employee statutory vacation pay, even though the time period for claimining that benefit under the ESA had expired (according to the ESA limitation in section 96(3)). The Court ruled that the time periods in the ESA did not apply when the empl0yee claims the ESA benefit in a breach of contract (wrongful dismissal) lawsuit. Admittedly, I wasn’t really sure how the court got to that conclusion unless it was implicitly ruling that the vacation pay entitlements were an implied term of Evagalista’s employment contract.
But one of the benefits of having this blog is that I learn things. For example, one of the lawyers who participated in this lawsuit has clarified the issue for me.  The Court in Evagalista accepted that an employee can enforce ESA entitlements without actually filing an ESA complaint, by simply claiming the ESA entitlement in their damages request in a wrongful dismissal complaint. And since the matter is being dealt with in a civil lawsuit, the civil law limitation periods in the Limitations Act apply, and not those in the ESA. That is important because the Limitations Act starts the clock ticking on the 2 year limitation period when the employee first ‘discovers’ the breach of the statute, whereas the ESA limitation period is more direct (a contravention occuring more than 2 years before the claim is filed is void).  This seems to allow employees to get around the statutory limitation  in the ESA for older claims when they were not aware of their entitlement to the ESA benefit until much later.
So the Court does not appear to be finding that the entitlements under the ESA are implied into employment contracts, but the employee can nevertheless claim those entitlements in a breach of contract lawsuit. This approach does seem to work well with Sections 97 and 98 of the ESA, which prevent employees from proceeding with both an ESA complaint and a lawsuit claiming the same damages.   The employee who is prepared to endure the time, trauma, and expense of a wrongful dismissal lawsuit can simply plead their entitlement to ESA benefits in their lawsuit.
I think I get it now. But please do correct me if I am wrong …
