The Supreme Court of Canada refused leave to appeal, based on oral submissions.
On May 1, 2008, the BC Court of Appeal allowed E-Care's appeal from the decision of Judge Wedge, and decided that the British Columbia Supreme Court does not have jurisdiction to deal with overtime claims in a civil action, if the overtime claim is solely based on statutory rights contained in the BC Employment Standards Act.
The Court of Appeal for the province of British Columbia has "reserved" judgement, meaning that the court will take time to consider the submissions of all parties, and render its decision.
No time has been set when the decision will be rendered.
The decision, when rendered, will answer the question of whether the proceeding can continue in the Supreme Court of British Columbia.
On June 8, 2007, the BC Director of Employment Standards obtained leave from the BC Court of Appeal to intervene in the appeal, to make submissions relating to the jurisdiction of the Director of Employment Standards and the jurisdiction of the court to hear overtime claims.
On December 13, 2006 Madam Justice Wedge of the BC Supreme Court decided the jurisidiction issue in favour of the plaintiff.
Ms. Macaraeg worked a considerable amount of overtime during her employment, as did a considerable number of other employees, but she was not paid for overtime work.
On March 28, 2006, an action was commenced in British Columbia Supreme Court in the name of Ms. Macaraeg, as a class action on behalf of a proposed class of persons described as:
"All persons who, after January 1, 2004, worked over eight hours a day or over 40 hours a week while employed by E Care in the province of British Columbia, but excluding employees who have executed a binding full and final release in favour of the defendant."
Writ of Summons and Statement of Claim
The action has not yet been certified as a class proceeding.
A preliminary issue exists as to the jurisdiction of the Supreme Court to deal with the claim of Ms. Macaraeg and others, for overtime pay pursuant to the British Columbia Employment Standards Act. Counsel for the plaintiff and defendant agreed to bring forward this issue of juridsiction to the BC Supreme Court, and Madam Justice Wedge decided that jursidiction did exist, that Ms. Macaraeg was not limited to whatever remedy she could obtain from the Employment Standards Branch.