Date: 20041006
Docket: T-2070-03
Citation: 2004 FC 1384
BETWEEN:
942260 ONTARIO LIMITED, o/a
ALLANPORT TRUCK LINES, THOROLD, ONTARIO
Applicant
and
MISTY PRESS
Respondent
REASONS FOR ORDER
PHELAN J.
Overview
[1] Misty Press, a dispatcher and bookkeeper claimed a significant amount of unpaid overtime. However as the bookkeeper, she did not maintain records of her own overtime. Her employer challenged her claim on the basis that she held a management position and, in any event, her claim was exaggerated and the result of her own failure to keep proper records. A referee appointed under the Canada Labour Code (the "Code") essentially agreed with Ms. Press but reduced the value of her claim. This is the judicial review of the Referee's decision.
Background
[2] The Applicant Allanport is an international trucking firm operating in Canada and the United States from offices in Thorold, Ontario.
[3] Ms. Press began working for Allanport as a coordinator and dispatcher of trucks on March 1, 1999. Two weeks after commencing her employment she was asked to take on the duties of the bookkeeper which extended her workday into the evening.
[4] Her workload increased again when she had to take on other administrative duties for an employee who was off on sick leave for two months. For this initial period of March 1, 1999 to August 26, 1999, Ms. Press claimed that she worked an average of twenty-six hours of overtime per week.
[5] As a result of the hiring of a dispatch supervisor, Ms. Press' workload decreased to the extent that for the second period from September 2, 1999 to October 26, 1999 she estimated that she worked thirteen hours of overtime. Finally for the third period from November 2, 2000 to October 6, 2000, as a result of a disagreement with her employer over holiday pay, she reduced her estimated overtime to five hours per week.
[6] The reason that all overtime claimed is an estimate is because Ms. Press did not keep a record of her overtime. She maintained overtime records for the other staff but not for herself.
[7] After Ms. Press quit her employment in October, 2001, she filed a complaint with Human Resources Development Canada for unpaid overtime. Her complaint was dismissed by a Labour Standards Officer principally because she had no records of her overtime and could not substantiate her claim. She then appealed to a referee appointed under the Canada Labour Code.
[8] The Referee heard evidence, much of it conflicting. Credibility was clearly an issue both as to Ms. Press' status as management and as to her entitlement to unpaid overtime. The Referee accepted that she was not management and did so by examining such factors, among others, as the absence of staff reporting to her and absence of any power to hire, fire or discipline others. The Referee accepted part of her overtime claim and discounted parts of it because of lack of reliability in the "reconstructed" or "estimates" of claimed overtime.
Analysis
[9] Allanport's principal submission was that Ms. Press is estopped from claiming overtime or has waived her right to overtime by virtue of her failure to keep proper books and records - one of her principal duties. Allanport argues that Ms. Press cannot benefit from her own wrong.
[10] The powers of a referee as set forth in the Canada Labour Code, are as follows:
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251.12(1) On receipt of an appeal, the Minister shall appoint any person that the Minister considers appropriate as a referee to hear and adjudicate on the appeal, and shall provide that person with
(a) the payment order or the notice of unfounded complaint; and
(b) the document that the appellant has submitted to the Minister under subsection 251.11(1).
(2) A referee to whom an appeal has been referred by the Minister
(a) may summon and enforce the attendance of witnesses and compel them to give oral or written evidence on oath and to produce such documents and things as the referee deems necessary to deciding the appeal;
(b) may administer oaths and solemn affirmations;
© may receive and accept such evidence and information on oath, affidavit or otherwise as the referee sees fit, whether or not admissible in a court of law;
(d) may determine the procedure to be followed, but shall give full opportunity to the parties to the appeal to present evidence and make submissions to the referee, and shall consider the information relating to the appeal;
(e) may make a party to the appeal any person who, or any group that, in the referee's opinion, has substantially the same interest as one of the parties and could be affected by the decision.* * * * * * * * * *
(7) No order shall be made, process entered or proceeding taken in any court, whether by way of injunction, certiorari, prohibition, quo warranto or otherwise, to question, review, prohibit or restrain a referee in any proceedings of the referee under this section. |
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251.12(1) Le ministre, saisi d'un appel, désigne en qualité d'arbitre la personne qu'il juge qualifiée pour entendre et trancher l'appel et lui transmet l'ordre de paiement ou l'avis de plainte non fondée ainsi que le document que l'appelant a fait parvenir au ministre en vertu du paragraphe 251.11(1).
(2) Dans le cadre des appels que lui transmet le ministre, l'arbitre peut:
a) convoquer des témoins et les contraindre à comparaître et à déposer sous serment, oralement ou par écrit, ainsi qu'à produire les documents et les pièces qu'il estime nécessaire pour lui permettre de rendre sa décision;
b) faire prêter serment et recevoir des affirmations solennelles;
c) accepter sous serment, par voie d'affidavit ou sous une autre forme, tous témoignages et renseignements qu'à son appréciation il juge indiqués, qu'ils soient admissibles ou non en justice;
d) fixer lui-même sa procédure, sous réserve de la double obligation de donner à chaque partie toute possibilité de lui présenter des éléments de preuve et des observations, d'une part, et de tenir compte de l'information contenue dans le dossier, d'autre part;
e) accorder le statut de partie à toute personne ou tout groupe qui, à son avis, a essentiellement les mêmes intérêts qu'une des parties et pourrait être concerné par la décision. * * * * * * * * * *
(7) Il n'est admis aucun recours ou décision judiciaire - notamment par voie d'injonction, de certiorari, de prohibition ou de quo warranto - visant à contester, réviser, empêcher ou limiter l'action d'un arbitre exercée dans le cadre du présent article.
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[11] As to the standard of review applicable, Lemieux J. in Gauthier v. Bank of Canada (2000), 191 F.T.R. 219, described the level of deference owed and the rationale for the Court's giving such deference. He summarizes the standard of review as follows:
To summarize, the relevant jurisprudence clearly establishes that the standard of review relating to errors of fact and law is the high or strict test of patent unreasonableness. It also establishes that the lower standard of correctness applies where the errors relate to provisions defining the jurisdiction of an adjudicator.
[12] Therefore on the merits of the Referee's decision, the standard is patent unreasonableness. I can find nothing unreasonable, much less patently so, in the conclusion that Ms. Press was not a member of management.
[13] There is nothing patently unreasonable about the calculation of overtime. The Referee acknowledged the difficulty in reconstructing the overtime and made a significant negative adjustment (over 50%) to account for concerns about reliability in the exercise of reconstruction.
[14] In addition, the Referee based his findings in part on the credibility of witnesses, preferring one person's view of events over that of another. This Court is in no position, nor ought it, to disturb those findings.
[15] The sole area raised where deference is not owed is on the issue of estoppel or waiver. That issue goes to the jurisdiction of the Referee since if Ms. Press had no right to make the claim, the Referee had no power to decide it.
[16] The right to overtime is a statutory right. Any limitation on the exercise of that right ought to be found in the legislation. The principles of estoppel and waiver relied on by Allanport arise at common law.
[17] In Gendron v. Supply and Service Union of the Public Service Alliance of Canada, [1990] 1 S.C.R. 1298, the Supreme Court concluded in dealing with the Code that resort to the common law would add nothing to the content or effect of that statute. The rationale is that the legislation was generally designed to be a fairly complete code and in some regards (duty of fair representation) it was to be a complete code.
[18] The Code is a complete code with respect to overtime rights. Any limitations on the exercise of the right, such as timeliness, are specified in the Code. There is nothing in the Code about estoppel, a matter somewhat related to timeliness.
[19] Furthermore there is no evidence that there was a knowing waiver of the right to overtime. The Court need not decide therefore whether Ms. Press had the right to waive her overtime entitlement - such waiver never occurred.
[20] This is an appropriate case for an award of costs in favour of the Respondent who had had to pursue and defend her statutory right to overtime.
Judge
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-2070-03
STYLE OF CAUSE: 942260 ONTARIO LIMITED, o/a ALLANPORT TRUCK LINES, THOROLD, ONTARIO v. MISTY PRESS
PLACE OF HEARING: St. Catharines, Ontario
DATE OF HEARING: September 15, 2004
REASONS FOR ORDER: PHELAN J.
DATED: October 6, 2004
APPEARANCES:
Mr. Guy Ungaro FOR THE APPLICANT
Mr. Barry Adams FOR THE RESPONDENT
SOLICITORS ON THE RECORD:
Mr. Guy Ungaro,
Niagara Falls, Ontario FOR THE APPLICANT
Chown, Cairns
St. Catharines, Ontario FOR THE RESPONDENT