Sleeping is Working Under the Alberta ESC

By: Amanda Jacinto

Published: 29 January 2024

What are Employees Obligated to Do in Calgary Workplace?

In 036910980661 Pet Services Inc. (Waggytails) v Spysznyk, 2023 CanLII 115052 (AB ESA) (Johnson), the Alberta Labour Relations Board (“ALRB”) was required to determine whether the employees’ work during Over Night Campus hours fell within “work” as defined in section 1(1) (aa) of the Alberta Employment Standards Code (the “ESC”).

This was an appeal of a decision by an employment standards officer which had found that the Over Night Campus hours were “work” under the ESC.

This case is important because we do not often see cases considering the definition of “work” under the legislation.


The following are the pertinent facts of the case:

  • The employer, 036910980661 Pet Services Inc. (Waggytails) (the “Employer”) provided pet services for dogs such as crate-free boarding
  • The crate-free boarding service was called Over Night Campus (“ONC”)
  • ONC was a kennel service and crate- free boarding, whereby clients could leave their dogs over night
  • ONC required the employees to work overnight from approximately 11:00 pm to 6:00 am
  • During these hours, the Employees would engage in various activities such as, feed the dogs, administer medication when required, cleaned, let the dogs outside and prepared invoices
  • During ONC shifts, it took the Employees approximately three hours to complete their tasks, however, this could be higher in some cases such as where a dog was in distress
  • The Employer argued that ONC did not fall within the definition of “work” as defined in the ESC, for the following reasons:
    • The employees regularly slept during ONC shifts;
    • The work was minimal;
    • The Employer had been advised previously by the Employment Standards office that it was not required to pay the Respondents during the ONC shift; and
    • Other jurisdictions did not consider the ONC to be “work”.

Analysis / Conclusion

Work in the Code is defined as “providing a service”. In determining whether the ONC fell within this definition, the ALRB applied the modern approach to statutory interpretation discussed in Rizzo & Rizzo Shoes (Re)1998 CanLII 837 (SCC), [1998] 1 SCR 27 (Rizzo). In doing so, the ALRB was to take into account the following:

  • The definition of “work” in its grammatical and ordinary sense in harmony with the scheme of the ESC;
  • The object of the ESC; and
  • The intention of legislature.

The ALRB was guided by the following analysis in Rizzo:

Finally, with regard to the scheme of the legislation, since the ESA is a mechanism for providing minimum benefits and standards to protect the interests of employees, it can be characterized as benefits-conferring legislation.  As such, according to several decisions of this Court, it ought to be interpreted in a broad and generous manner. Any doubt arising from difficulties of language should be resolved in favour of the claimant […] 

In applying the above interpretive approach, the ALRB took into account the Oxford Canadian Dictionary’s definition of service, which was defined as “an assistance or benefit given to someone”.

In applying the above noted modern approach to interpreting the ESC, the ALRB ultimately determined that the ONC was work pursuant to the ESC, therefore, the Employer was required to pay the Employees for the entire ONC shift. The fact that the employer had sought advice from the Employment Standards office on this issue previously did not affect the ALRB’s decision.

My Take

This is an unusual, but interesting case, because we do not very often see cases considering what constitutes “work” in an employment setting. 

In order to be deemed “work” pursuant to the Employment Standards Code, the work the employee is actively doing is not necessarily determinative, rather, what counts is the overall service that is being provided, as a result of an employee being present on the employer’s premises.

In the present case, while the Employees were not “actively” working per se during the entire ONC shift, their presence allowed for the over service (ONC) to occur.

An analogous situation would be a cashier in a grocery store. Should the cashier have a scheduled shift of 7 hours but due to a lack of customers only serves customers for a total of 3 hours during that shift, the employer still needs to pay the cashier for the whole shift because the cashier is there for the store’s benefit.

Bow River Law provides these regular legal blog articles for the purposes of legal news, legal education and research for the public and the legal profession.  These articles should be considered general information and not legal advice.  If you have a legal problem, you should speak to a lawyer directly.

Amanda Jacinto is an employment and labour lawyer at Bow River Law in Calgary.