Date: 20170221
Docket: T-856-16
Citation: 2017 FC 201
Ottawa, Ontario, February 21, 2017
PRESENT: The Honourable Mr. Justice Phelan
BETWEEN:
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WAYNE ROBBINS
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Applicant
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and
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NORTHERN INDUSTRIAL CARRIERS (MACDOUGAL TRANSPORT INC)
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Respondent
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JUDGMENT AND REASONS
I.
Introduction
[1]
This is an application for judicial review of a decision by a referee [Referee] appointed by the Minister of Labour in respect of a wage recovery appeal pursuant to Part III of the Canada Labour Code, RSC 1985, c L-2 [the Code].
The Applicant’s initial complaint had been considered by an Employment Standards Branch inspector [Inspector].
[2]
The proper name of the Respondent is “Northern Industrial Carriers (MacDougal Transport Inc)”
and the style of cause has been amended to reflect the correct spelling.
[3]
This proceeding was somewhat unwieldy since the Respondent filed no material to rebut the Applicant’s judicial review and the Attorney General of Canada advised the Court that it would not be intervening.
[4]
The Applicant, Mr. Robbins, has been self-represented throughout all stages of this dispute over wages.
[5]
The Respondent appeared at the hearing of the judicial review represented by its officer, Mr. Roth.
At the hearing Robbins was present, although late, and the matter was ready to proceed. The Respondent was required to be represented by counsel pursuant to r 120. In the circumstances, the options were to proceed without the Respondent, to adjourn the matter to another date, or to grant leave for the Respondent to be represented by Roth.
[6]
In my view, an adjournment would be costly to all and wasteful of judicial resources, and proceeding without the Respondent would be unfair. Therefore, there were special circumstances which justified allowing the corporate Respondent to be represented by an officer.
[7]
The Applicant admitted that his real complaint at this stage was the Referee’s refusal to award costs. While this issue will be addressed, for the sake of completeness the Court will address the other issues raised in the written materials.
[8]
As pointed out to the Applicant at the hearing, the Court is not here to retry the dispute; rather, it is to judicially review the Referee’s decision as to its reasonableness.
[9]
The pertinent legislation at issue is:
Canada Labour Code, RSC 1985, c L-2
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Motor Vehicle Operators Hours of Work Regulations, CRC 1978, c 990
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II.
Facts
[10]
This judicial review pertains to the Applicant’s employment for the period of November 4, 2013 to November 19, 2013 as a Class 1 Driver for the Respondent. There remained throughout the dispute an allegation by the Applicant that his real employer was Northern Industrial Carriers [NIC] and not MacDougal Transport [MacDougal], although the two are related enterprises.
As was made clear at the hearing, the two entities are run through the same operational structure and share officers and supervisors; however, NIC’s employees are union members and MacDougal’s are not.
[11]
The Applicant was hired on November 1, 2013, after which he went on to training and then to “heavy haul”
driving on November 13, 2013.
[12]
The Applicant raised, as part of his complaint, the hourly wage rate and the over the road [OTR] rate (mileage) to which he was entitled.
[13]
The Applicant also complained about the number of hours with which he was credited and the type of work (long haul versus local) recorded.
[14]
On November 18, 2013, the Applicant was involved in a collision while driving his truck. His employment was terminated on November 19, 2013.
[15]
As a result of not receiving what he thought was due from his employer, the Applicant filed his complaint with the Employment Standards Branch in Edmonton. The Inspector made a preliminary finding on April 16, 2015 that the Applicant was owed $1,407.12 consisting of wages, overtime pay, and vacation pay.
[16]
Following receipt of the Respondent’s objections to this preliminary finding, the Inspector revised the amount owing to $1,174.68. That amount less deductions was paid to the Applicant.
[17]
In a further decision of June 10, 2015, the Inspector determined that the remaining items in Robbins’ complaint were unfounded. It appears that the Applicant’s claim for costs in the amount of $1,500 was dismissed without reasons.
[18]
The Applicant appealed that decision to the Referee. The Referee’s decision was rendered on April 29, 2016, communicated on or about May 7, 2016, and is the subject of this judicial review.
[19]
The Referee concluded that the order of the Inspector should only be varied in two respects: wages and vacation pay in small amounts. The Referee held that the Applicant was owed an additional $195.20 in wages and $7.81 in vacation pay.
[20]
On the issue of the name of the employer, the Referee took notice of the facts that MacDougal was owned and operated by NIC, cheques to Robbins came from MacDougal, both companies operated from the same premises, and the same individual supervised hiring, training, and safety for both companies. The Referee also noted that Robbins had not provided any new information to show that the Inspector erred in this regard.
[21]
The Referee accepted the employer’s timesheet evidence. The Referee also found no error in the deductions for lunch breaks, no errors in rejecting claims for additional work hours, and no error in the Inspector’s conclusions regarding hourly rate or mileage rate after training was completed. In this regard, the Inspector preferred the oral and written evidence from the employer. These conclusions were based on the corporate policy on wage rates and incentive pay (for which the Applicant did not qualify due to his accident).
[22]
On overtime pay, the Referee noted that the Inspector had found that pursuant to s 6(1) of the Motor Vehicle Operators Hours of Work Regulations, CRC 1978, c 990, the standard hours of work for Class 1 highway drivers, such as the Applicant, was 60 hours per week. Therefore, overtime is only payable for hours worked in excess of that amount, which did not happen in this case.
[23]
In respect of the Applicant’s claim that the supervisor had agreed to pay him according to provincial regulations, the Referee preferred the employer’s evidence and perspective that the supervisor did not have authority to make such an arrangement and that the employer was governed by federal regulations.
The Referee could find no error in the conclusion that the Applicant was not entitled to overtime pay. The Applicant had presented no documents to support his claim and could not demonstrate that he had exceeded 60 hours of work per week.
[24]
On termination pay, in addition to referring to the Inspector’s finding that the Applicant was employed for less than three consecutive months, the Referee concluded, in rejecting other arguments by the Applicant, that the Code is specific about the requirements for termination pay and that the Applicant had not met those requirements.
[25]
Finally, in respect of costs, the Referee held that this was not an appropriate case to award costs, noting that there was no abuse of process by MacDougal, that the Applicant had represented himself, and that he had provided no evidence for the claim that he was required to give up paid work in order to prepare his case. Lastly, the Referee found that costs would not apply to the pre-complaint actions or the actions of the Inspector.
III.
Analysis
[26]
The Applicant’s Memorandum indicates that he challenges the Referee’s decision on all the points reviewed in the description of the decision. That position changed at the hearing to one of a challenge to the no costs award.
[27]
There is only one issue in this case: whether the Referee’s decision meets the applicable standard of review, which is reasonableness.
[28]
In Bellefleur v Diffusion Laval Inc, 2012 FC 172, 405 FTR 47 [Bellefleur], Justice de Montigny succinctly set out that on questions of fact the standard of review is reasonableness and on matters of procedural fairness it is correctness.
[29]
Importantly, Justice de Montigny outlined the basis for a high degree of deference being owed to the referee. Sections 251.12(6) and (7) of the Code constitute a strong privative clause suggestive of significant deference:
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[30]
Further, referees have extensive experience with and knowledge of the labour relations environment and have more expertise than this Court.
[31]
Finally, Justice de Montigny noted that the purpose of the pertinent provisions is the timely resolution of disputes so as to enable employees to collect the money they are owed. The remedial nature of these provisions and the need for timely resolution of disputes speak to the considerable latitude given to referees and the intended limit on the Court’s power to intervene.
[32]
In this case, as in Bellefleur, the issues before the Referee were factual in nature. The Court would only be obliged to intervene where the Referee’s decision did not fall within a range of acceptable outcomes justified in fact and in law as per Dunsmuir v New Brunswick, 2008 SCC 9 at para 47, [2008] 1 SCR 190.
[33]
Therefore, the appropriate standard of review of the Referee’s decision is reasonableness, and the Court should grant a large degree of deference to referees.
The Applicant’s bare allegation of procedural unfairness without details or substance does not justify the Court embarking on a further inquiry of this issue.
[34]
The Applicant has failed to convince me that there was anything unreasonable in the Referee’s decision. Examined as a whole, the decision addressed the factual basis for each area under dispute. In many cases, the Referee chose to put greater weight on the employer’s documents and evidence than on those of the Applicant (as did the Inspector). In that regard, the Referee was in a better position to make those assessments than this Court.
[35]
There was a proper factual basis for the Referee’s conclusions. Whether it was the identification of the employer based on the employer’s description of its operation or the hours of work and wage rates backed by the employer’s records, there was a reasonable basis for the conclusions drawn.
[36]
The Referee’s decision must be read as a whole. There was, within the record of the dispute, sufficient material for a referee to come to the conclusions reached. It is not for this Court to second-guess the decision or substitute its own view.
[37]
On the main point in issue at the hearing, the Applicant asserted that he had spent $3,300 worth of his time in pursuing his $1,100 claim. That $3,300 was said to be half his hourly rate ($100 per hour) multiplied by the time spent on this dispute.
[38]
Quite apart from the financial wisdom of foregoing $6,600 of wages to pursue $1,100 in wages, there was no evidence to support any part of this claim.
[39]
The cases relied upon by the Applicant are not only distinguishable, they were also before the Referee and are presumed to have been considered. The award of costs is a discretionary matter also entitled to deference.
[40]
I can see no error in fact or principle which would justify this Court’s interference with this aspect of the Referee’s decision.
[41]
Therefore, I can find no basis upon which the Applicant can succeed.
IV.
Conclusion
[42]
This application for judicial review will be dismissed without costs.
JUDGMENT
THIS COURT’S JUDGMENT is that the application for judicial review is dismissed without costs.
"Michael L. Phelan"
Judge
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET:
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T-856-16
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STYLE OF CAUSE:
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WAYNE ROBBINS v NORTHERN INDUSTRIAL CARRIERS (MACDOUGAL TRANSPORT INC)
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PLACE OF HEARING:
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Edmonton, Alberta
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DATE OF HEARING:
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February 14, 2017
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JUDGMENT AND REASONS:
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PHELAN J.
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DATED:
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february 21, 2017
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APPEARANCES:
Wayne Robbins
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For The Applicant
(ON HIS OWN BEHALF)
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Gary Roth
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For The Respondent
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SOLICITORS OF RECORD:
N/A
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For The Respondent
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