Canada: Minimum Wage Is Not Just For Hourly Employees

Last Updated: July 30 2019
Article by Laura Boyd

The recent New Brunswick Court of Appeal decision, J. Clark & Son, Limited v. New Brunswick, 2019 NBCA 31 ("J. Clark & Son") provides guidance on to whom the minimum wage applies and how it should be paid to employees who are paid a commission. The Court of Appeal decision was rendered on April 11, 2019, following changes to the Province's Minimum Wage Regulation – Employment Standards Act, NB Reg 2019-2, which came into force on April 1, 2019.


The matter originated from a complaint made by an automobile sales consultant, formerly employed by J. Clark & Son Limited. The employee ("RRB") received a weekly compensation of $350, which consisted of $150 in base pay, $200 as an advance for her commission sales and a $57.69 car allowance. She was paid bi-weekly.  J. Clark & Son Limited's longstanding practice was to settle all commissions on a monthly basis.

RRB was terminated without cause and filed a complaint with the New Brunswick Employment Standards Branch against her employer the same day. RRB's complaint related to minimum wage, minimum wage overtime and pay in lieu of notice. RRB did not assign any amounts to her claims but she claimed that her pay rate was $350 bi-weekly, her work week averaged 54 hours a week and she worked 5-6 days a week.

RRB's complaint was investigated pursuant to the Employment Standards Act, (the "Act"). The investigating Officer recommended that the Deputy Director issue an Order that J. Clark & Son Limited pay RRB unpaid wages amounting to $2,195.93 and for payment in lieu of notice of termination in the amount of $1,258.59.

The Officer calculated the owed minimum wage amount on a weekly basis and later converted that to a bi-weekly period to match the employer's payroll records.

Litigation History

The employer disputed the Order and the matter was referred to the Labour and Employment Board (the "Board"), which vacated the Deputy Director's Order and dismissed the employee's complaint.

The employee sought judicial review of the Board's decision. The application judge quashed the Board's decision, finding it unreasonable and remitted the matter back to the Board to determine any minimum wage and vacation pay due to the employee for each pay period.

The application judge confirmed that the Minimum Wage Regulation applies to every employee and employer in New Brunswick, unless otherwise provided in the Act or any regulation made under the Act.

The issue of what interval of time should be used to calculate the minimum wage owed to an employee was also reviewed by the application judge who noted that different intervals could lead to different results of minimum wage owed, writing at paragraph 8:

Looking at the employee's earnings in their entirety over her six months of employment, the Board concluded that her total earnings for that period exceeded the minimum hourly wage by $270.26. If calculated for each two week pay period the investigator determined that over the six months she was paid a cumulative total of $2,195.93 less than minimum wage. If her hours and benefits had been calculated every week, the investigator suggested that the amount owing to the employee "would be higher by approximately $5,000".

The application judge concluded that the concept of minimum wage is to be calculated and paid "during a pay period" and the Board erred in not determining the pay period applicable to the employee. He reasoned that the Act requires employers to keep accurate employee records that should include the hours an employee works and the gross earnings for each pay period. The application judge reasoned that one of the obvious purposes for the requirement is to make it easy to verify that the minimum wage is being paid in each pay period. Further justification for the use of the pay period was found in the language of section 7 of the Minimum Wage Regulation, which specifies "pay period" and does not use wording such as "while employed by the employer" or "during the last six months".

The application judge clarified that section 34(5) of the Act authorizes an employer to continue an existing practice of settling its commissions or other wage payments at another time than the pay period, however it did not purport to exempt the employer from the requirement to pay the minimum wage to its employee in each pay period.

The employer appealed the application judge's decision. While awaiting a hearing before the Court of Appeal, the matter was remitted to and heard by the Board. The Board determined the applicable pay period to be on a monthly basis and ordered the Director of Employment Standards to investigate further the calculation of minimum wage using the determined interval of time.

Court of Appeal

The Court of Appeal agreed with the application judge's finding that the Board's preliminary decision was unreasonable and that automobile sales people paid by commission are employees entitled to receive at least the minimum wage for their hours worked.

The Court of Appeal stated that the application judge's decision on the issue of determining the minimum wage due to RRB for each pay period was appropriate.

Recent Changes to the Legislation

The Minimum Wage Regulation was previously silent on how the minimum wage should be calculated. For example, the 2016 Minimum Wage Regulation read "The minimum wage for employees whose hours of work per week are unverifiable and who are not strictly employed on a commission basis is $468.60 per week."

Effective April 1, 2019, the Minimum Wage Regulation was amended to include the following at section 8:

The minimum wage for employees whose hours of work per week are unverifiable and who are not strictly employed on a commission basis shall be calculated on a weekly basis by multiplying the minimum wage by 44. [Emphasis added]

Section 8 requires the minimum wage to be calculated on a weekly basis for a certain class of employees. This section has yet to be tested, however the amendment offers instruction on how and for what time interval the minimum wage should be calculated.

As the application judge's decision highlighted, the difference between calculating the minimum wage on a weekly or bi-weekly basis can result in large discrepancies for minimum wages owed.

What are the Effects?

Following the rendering of the Court of Appeal decision and the changes to the Minimum Wage Regulation, employers are required to pay all employees at least the minimum wage for the hours worked during the pay period. If an employee's weekly hours are unverifiable and the employee is not strictly employed on a commission basis, the weekly minimum wage paid must be at least $506. These changes could have implications for employers which do not currently pay employees a base pay of less than minimum wage or less than $506 weekly (if hours of work are unverifiable) while the employees earned commissions that are paid outside of the designated pay period.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Similar Articles
Relevancy Powered by MondaqAI
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions