The Act respecting labour standards3 (the “Act”) lays down a well-known rule: entitlement to annual leave is progressively acquired during the reference year and is taken the following reference year. In 2003, Section 70 of the Act was amended to allow employees to take their annual leave early, i.e. during the reference year itself. However, early leave cannot be imposed by employers (for example, under an employer policy) but must be requested4 by employees.

This has been the courts’ interpretation since the above amendment was introduced, an interpretation that is in line with the wording of the legislation itself. Indeed, employers could be compelled to pay the leave a second time, say, upon termination of employment, if the rule had been breached.

Such was the fate of the employer in Nestlé Canada Inc.5 under a Court of Québec decision in which the Commission des normes du travail (the “CNT”) claimed payment of leave already granted on behalf of two de-parting employees. According to the Court, the provisions of the Act are mandatory, and the leave granted early was not the leave authorized under the Act because it did not result from the employees’ request.

However, the Court of Appeal of Québec,6 though confirming that leave taken during the reference year may only be granted at an employee’s request, nonetheless quashed the trial judge’s decision that had allowed the claim of the CNT.

In fact, in the Court’s opinion, the employer violated the Act’s provisions by compelling its employees to take their annual leave during the reference year. However, since the leave had already been paid, there was no need to grant payment of the amounts claimed for annual leave in the absence of any evidence that the annual leave taken early had caused the employees a prejudice that allowed them to seek damages.

As the court stated, the Act [TRANSLATION] “…does not contain any provision providing that damages be awarded where the breach of one of its provisions does not result in pecuniary damage.”

This interpretation by the Court of Appeal will undoubtedly comfort many employers whose annual leave policy provides that leaves are to be taken during the reference year, seeing as such clauses, if narrowly interpreted, cannot be deemed an employee request and could have led, before the Court of Appeal decision, to a double payment. However, employers will remain at risk if an employee can establish some prejudice resulting from vacation taken early.