Directors invoke a wage deferral defence, but the unpaid wages bill still stands
Two company directors remain personally liable for a senior executive's unpaid wages years after leaving the boardroom, a British Columbia tribunal has ruled, rejecting their claim that a disputed wage-deferral arrangement should erase the debt.
In a decision dated July 2, 2026, Employment Standards Tribunal member Kenneth Wm. Thornicroft dismissed appeals from two former directors of Orchard Technology Inc., upholding orders that each pay $25,716.71 to cover wages the company's senior executive earned but was never paid in November 2022.
A company wage order nobody paid
A determination issued against Orchard Technology Inc. in May 2025 ordered the company to pay $631,296.63 in unpaid wages and interest to two employees, one of them the executive whose unpaid salary is now at issue in this appeal. Her portion came to $464,545.06.
Orchard Technology never appealed, and the full amount stayed outstanding. Under British Columbia's Employment Standards Act, a director or officer holding that role when wages were earned, or should have been paid, can be liable for up to two months of unpaid wages. Relying on that provision, the delegate issued fresh determinations on July 18, 2025, ordering each director to pay $25,716.71 for the executive's unpaid November 2022 salary of $25,000, plus interest.
Both directors sat on the board between November 2 and December 15, 2022, according to corporate registry records cited in the delegate's reasons, and neither disputed holding that role. The delegate found each liable for the $25,000 the executive earned but was not paid in that window, since it fell within their tenure.
Directors point to a disputed pay deferral
The directors argued the executive's pay had been informally deferred rather than genuinely owed, pointing to a wage-deferral arrangement they said was discussed with company leadership in late 2022. They submitted two internal emails and a spreadsheet from that period as new evidence, saying the documents showed the executive had consensually deferred part of her own salary while managing the company's payroll.
Thornicroft dismissed the new evidence, noting all three documents predated the original determination and so were not newly available. The wage-deferral question had already been addressed there, finding the executive's pay was withheld rather than reduced or loaned, and that a promised 20 per cent interest payment did not meet the legal definition of wages. Since Orchard Technology never appealed, the matter could not be revisited, and Thornicroft endorsed the delegate's findings.
That underlying argument fared no better. Both were directors when the executive earned, but was not paid, her November 2022 salary, which remained outstanding "unaffected by any alleged 'wage deferral agreement.'" The executive, for her part, said she never agreed to waive or permanently defer her wages and had no corporate authority to arrange payment from the company herself.
A notice gap that came too late to matter
The directors also argued they were denied natural justice, saying they were never notified about the wage complaint investigation behind the original determination. Thornicroft agreed neither received the investigation report issued in February 2025, since both had already left the board, and found no evidence the delegate warned either that personal liability was being considered before the July 2025 determinations followed.
Thornicroft found it "disingenuous for the delegate to assert" that receiving the original determination gave the directors a chance to appeal it, since both had left the board roughly two and a half years earlier with no authority to appeal on the company's behalf. He said the delegate should have warned each director and given them a chance to respond first.
Despite finding a likely breach of the tribunal's notice rules, Thornicroft ruled the problem was cured by the appeal itself, since the directors got a full chance to challenge their liability there. He confirmed both determinations, ordering each to pay $25,716.71, plus accrued interest. Three separate penalties levied against the company were not extended to either director, as the delegate found insufficient evidence either had authorized or permitted its violations.
See Eden M. Oliver and Peter Smyrniotis (Orchard Technology Inc.), 2026 BCEST 50
