contract-law employment canada
Legally withold payment for services rendered beyond a weekly limit? - Canada
<p>If a contract specifies that work be rendered for services between 8 and 16 hours per week, and the month averages to 16 hours per week but certain weeks are in excess of 16 hours, is it legal to withhold payment for those hours?
E.g.:</p>

<pre><code>Week 1: 16 hours
Week 2: 24 hours
Week 3: 8 hours
Week 4: 16 hours
</code></pre>

<p>Is it legal to not pay for the the 8 hours in excess of 16 on week 2 if the contract specifies 8 to 16 hour work weeks? Given that the contractor monitors their own work and did not request a weekly overage agreement.</p>

<p>To me it seems legal, but unfair, since that the hours average to 16/week in the end.</p>

<p>Due to the difficulty in answering, I will provide the specific clause:</p>

<blockquote>
  <p>The Contractor shall work on an estimated 16 - 24 hours per week or as
  requested by the Company. All extended hours to be rendered by the
  Contractor shall be pre-approved by the company, in writing.</p>
</blockquote>

<p>The contractor is entitled to be paid a minimum of 8 and a maximum of 16 hours in any week. That’s what the contract says so that’s what happens. </p>

<p>Fairness is not legally relevant - if you don’t think the contract is fair, don’t enter into it.</p>

<p>Now, if the contractor is actually an employee, such a contract would probably be unlawful.</p>

<blockquote>
<p>Is it legal to not pay for the the 8 hours in excess of 16 on week 2
if the contract specifies 8 to 16 hour work weeks?</p>
<p>To me it seems legal, but unfair, since that the hours average to 16/week in the end.</p>
</blockquote>
<p>Generally speaking, the contractor would have a viable claim of <em>unjust enrichment</em> and/or <em>breach of contract</em>. Claims of unjust enrichment are <a href="https://albertalawreview.com/index.php/ALR/article/view/1471" rel="nofollow noreferrer">cognizable in Canadian jurisdictions</a>. Basically only the contractor's actual non-performance of previous workload <em>reasonably assigned</em> to him would justify withholding payment of the excess hours.</p>
<p>Unless the contract explicitly prohibits overtime, the extra hours worked in Week 2 could
constitute an <em>implied contract</em> on its own as legitimized by both parties' conduct. Moreover, the fact that the excess hours in one week roughly coincide with the reduction of hours in other week suggests is indicative of the company's unlawful intent to <em>game the system</em>. A claim of <em>unjust enrichment</em> would ensue regardless of the weekly average of work hours.</p>
<p>The belief that <a href="https://law.stackexchange.com/questions/36158/legally-withold-payment-for-services-rendered-beyond-a-weekly-limit-canada/36159#36159">&quot;<em>Fairness is not legally relevant</em>&quot;</a> is very mistaken, especially in <em>contract law</em>. Contract law is premised on the well-known <a href="https://en.wikipedia.org/wiki/Good_faith_(law)" rel="nofollow noreferrer"><em>covenant of good faith and <strong>fair</strong> dealing</em></a>. Even in claims outside the doctrine of <em>contract law</em>, an injured party could <em>prevail in equity</em> unless statutory law or case law provide otherwise.</p>
<p><strong>Edited on 1/14/2019 to address the OP's <a href="https://law.stackexchange.com/revisions/36158/2">added quote</a> of the contract clause</strong></p>
<blockquote>
<p>Due to the difficulty in answering, I will provide the specific
clause:</p>
<p>The Contractor shall work on an estimated 16 - 24 hours per week or as
requested by the Company. All extended hours to be rendered by the
Contractor shall be pre-approved by the company, in writing.</p>
</blockquote>
<p>This added clause creates confusion because <a href="https://law.stackexchange.com/revisions/36158/1">hitherto</a> the question only referred to the range of 8-16 hours per week. That being said, the <a href="https://en.wikipedia.org/wiki/Contra_proferentem" rel="nofollow noreferrer">doctrine of <em>contra proferentem</em></a> compels the company to pay for 24 hours of Week 2 --as sketched in your example-- unless the contractor is the draftsman of that contract (the way how this clause is worded suggests that the party who drafted the contract is the company).</p>
<p>Unless the contract defines the term &quot;estimated&quot; otherwise, the commonplace meaning of &quot;<em>estimated</em>&quot; permits the reasonable interpretation that only the work <em>in excess</em> of 24 hours can be considered &quot;<em>extended hours</em>&quot;. If the contractor works 24 hours in a week, he clearly has not exceeded the benchmark of 24 hours and therefore did not need to &quot;be pre-approved by the company*&quot;. Therefore, the company has the obligation to pay the full 24 hours of Week 2.</p>
