Date: 20010523
Docket: T-614-00
Neutral reference: 2001 FCT 512
Between:
ERB TRANSPORT LIMITED
Plaintiff
- and -
JEAN-MARC VERMETTE
Defendant
- and -
JEAN-PAUL LALANCETTE
Mis-en-cause
REASONS FOR ORDER
PINARD J.
[1] The instant application for judicial review is asking the Court to quash the decision on March 15, 2000 by Jean-Paul Lalancette, an adjudicator appointed pursuant to the provisions of Division XIV, Part III, of the Canada Labour Code, R.S.C. 1985, c. L-2, as amended ("the Code"). By that decision the adjudicator dismissed the appeal by the plaintiff ERB Transport Limited, ordering it to compensate the defendant Jean-Marc Vermette in the amount of $328.84 for the general holidays on December 25 and 26, 1998.
[2] Essentially, the adjudicator found that the work by the defendant Jean-Marc Vermette was not continuous within the meaning of s. 201(2) of the Code, as the plaintiff is a business which did not require the defendant to work on December 25 and 26, thus allowing for Sundays and general holidays, contrary to s. 191(d) of the Code.
Facts
[3] On account of its need for staff at holiday time the plaintiff, a highway transportation business, following an agreement with the Department of Labour in 1985 adopted by-law P-10, which provided that if an employee was not available for work immediately before or after general holidays, in particular those of December 25 and 26, he was not entitled to be paid for them unless he had obtained leave to be absent. Mr. Gerber, the vice president, human resources, with the plaintiff, indicated that this policy has been posted in the office since 1985.
[4] The evidence before the adjudicator was that the defendant, a long-distance driver working for the plaintiff, was not available on December 24, 1998 and received no leave from the employer. Based on its by-law P-10 and s. 201(2) of the Code, the plaintiff decided that the defendant was not qualified for payment for the general holidays of December 25 and 26, 1998.
[5] On February 18, 1999 the defendant filed a complaint with the office of Human Resources Development Canada, alleging that he had not been paid for the general holidays of
December 25 and 26, 1998. On July 27, 1999 the office inspector rendered a decision confirming that the complaint was valid and asking the plaintiff for a payment of $447.13, less deductions. The plaintiff appealed to the adjudication tribunal, which heard the case on January 18, 2000. The adjudicator dismissed the appeal in a decision rendered on March 15, 2000: hence the instant application for judicial review.
Issue
[6] The plaintiff challenged the adjudicator's conclusion that the defendant did not hold continuous employment within the meaning of ss. 191 and 201(2) of the Code.
Legislation
[7] The relevant provisions of the Code read as follows:
| 191. In this Division, the expression "employed in a continuous operation" refers to employment in
(1) any industrial establishment in which, in each seven day period, operations once begun normally continue without cessation until the completion of the regularly scheduled operations for that period;
(2) any operations or services concerned with the running of trains, planes, ships, trucks and other vehicles, whether in scheduled or non-scheduled operations;
(3) any telephone, radio, television, telegraph or other communication or broadcasting operations or services; or
(4) any operation or service normally carried on without regard to Sundays or public holidays.
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191. Pour l'application de la présente section, un employé est occupé à un travail ininterrompu dans l'un ou l'autre des cas suivants :
1) il travaille dans un établissement où, au cours de chaque période de sept jours, les travaux, une fois normalement commencés dans le cadre du programme régulier prévu pour cette période, se poursuivent sans arrêt jusqu'à leur achèvement;
2) son travail a trait au fonctionnement de véhicules, notamment trains, avions, navires ou camions, que ce soit ou non dans le cadre d'un programme régulier;
3) il travaille dans les communications : téléphone, radio, télévision, télégraphe ou autres moyens;
4) il travaille dans un secteur qui fonctionne normalement sans qu'il soit tenu compte des dimanches ou des jours fériés.
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| 192. Except as otherwise provided by this Division, every employee is entitled to and shall be granted a holiday with pay on each of the general holidays falling within any period of his employment.
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192. Sous réserve des autres dispositions de la présente section, chaque employé a droit à un congé payé lors de chacun des jours fériés tombant au cours de toute période d'emploi.
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| 196. (3) An employee whose wages are calculated on any basis other than a basis mentioned in subsection (1) or (2) shall, for a general holiday on which the employee does not work, be paid at least the equivalent of the wages the employee would have earned at his regular rate of wages for his normal working day.
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196. (3) L'employé rémunéré selon une base de calcul autre que celles mentionnées aux paragraphes (1) ou (2) reçoit, pour un jour férié où il ne travaille pas, au moins l'équivalent du salaire qu'il aurait gagné, selon son taux régulier, pour une journée normale de travail.
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| 201. (2) No employee who is employed in a continuous operation is entitled to be paid for a general holiday
(1) on which the employee did not report for work after having been called to work on that day; or
(2) in respect of which the employee makes himself unavailable to work in accordance with the conditions of employment in the industrial establishment in which the employee is employed.
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201. (2) Aucune indemnité n'est versée à l'employé occupé à un travail ininterrompu pour un jour férié où, selon le cas :
1) il ne s'est pas présenté au travail après y avoir été appelé;
2) il n'est pas disponible pour le travail conformément aux conditions d'emploi dans l'établissement où il travaille.
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Analysis
[8] The fundamental point that arises in the case at bar is thus whether the adjudicator erred in concluding that the defendant's employment was not "continuous" within the meaning of ss. 191 and 201(2) of the Code.
[9] Ty-Co Enterprises Ltd. and Harding, [1996] C.L.A.D. No. 509 (QL), involved a factual situation similar to the one in the case at bar. In that case the respondent Harding was a truck driver for the appellant company, Ty-Co. The adjudicator made the following comment at para. 55 of his analysis:
One of the amounts of the Payment Order involved Harding's entitlement to wages for public Holidays. Under Division V, entitled "General Holidays", section 191(b) provides that the expression "employed in a continuous fashion" refers to employment in any operations or services concerned with the running of trains, planes, ships, trucks and other vehicles, whether in scheduled or non-scheduled operations (Emphasis added). Thus, Harding's work entitled him to be considered as "employed in a continuous fashion" for purposes of this section.
(My emphasis.)
[10] Additionally, in Klaproth v. Burgess, [1999] C.L.A.D. No. 396 (QL), the adjudicator made the following observation at para. 17 regarding the employee Klaproth, a truck driver for the Burgess company:
It previously having been determined that Mr. Klaproth was an employee, the starting point for the analysis is the employee's statutory entitlement found in s. 192 of the Code, to be "granted a holiday with pay on each of the general holidays falling within any period of his employment". Division V of the Code deals with general holidays. Within that division, s. 191 defines a situation where an employee may be "employed in a continuous operation". Clause (b) of s. 191 applies because Mr. Klaproth was employed in an operation concerned with the running of trucks. By definition it does not matter whether those operations were on a scheduled or non-scheduled basis.
(My emphasis.)
[11] In the case at bar, in order to conclude as he did the adjudicator had to find that for an employee not to be considered "employed in a continuous fashion", the employee had to meet the requirements of one or other of paras. (a) to (d) of s. 191 of the Code.
[12] The provision provides exactly the opposite: s. 191 indicates clearly that for an employee to be "employed in a continuous operation" he only needs to be in one of the situations described in paras. (a) to (d).
[13] As the defendant is a truck driver for the plaintiff company, and as the statutory definition of the expression provides that it does not matter whether the work was done as part of a regularly scheduled operation, I have to conclude that the defendant was "employed in a continuous operation" within the meaning of s. 191(b) of the Code. Consequently, since the defendant was not available for work on December 24 in accordance with the plaintiff company's by-law P-10, the exception contained in s. 201(2) should have been applied against him. The adjudicator made a gross error of interpretation. In the circumstances, I consider that by requiring the plaintiff to compensate the defendant for the general holidays of December 25 and 26, 1998 the adjudicator rendered a decision which was not merely incorrect but actually unreasonable (see Director of Investigation and Research v. Southam Inc. et. al., [1997] 1 S.C.R. 748).
[14] The adjudicator's decision is accordingly quashed and the matter referred back to another adjudicator for reconsideration.
OTTAWA, ONTARIO
May 23, 2001
Certified true translation
Suzanne M. Gauthier, LL.L. Trad. a.
Date: 20010523
Docket: T-614-00
Ottawa, Ontario, May 23, 2001
Before: Pinard J.
Between:
ERB TRANSPORT LIMITED
Plaintiff
- and -
JEAN-MARC VERMETTE
Defendant
- and -
JEAN-PAUL LALANCETTE
Mis-en-cause
ORDER
The application for judicial review is allowed. The decision on March 15, 2000 by Jean-Paul Lalancette, an adjudicator appointed pursuant to the provisions of Division XIV, Part III of the Canada Labour Code, R.S.C. 1985, c. L-2, as amended, ordering the plaintiff to compensate the defendant Jean-Marc Vermette in the amount of $328.84 for the general holidays of December 25 and 26, 1998, is quashed. The matter is accordingly referred back to another adjudicator for reconsideration.
Certified true translation
Suzanne M. Gauthier, LL.L. Trad. a.
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
FILE: T-614-00
STYLE OF CAUSE: ERB TRANSPORT LIMITED
- and -
JEAN-MARC VERMETTE
- and -
JEAN-PAUL LALANCETTE
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: April 24, 2001
REASONS FOR ORDER BY: Pinard J.
DATED: May 23, 2001
APPEARANCES:
Louise Baillargeon FOR THE PLAINTIFF
Jean-Marc Vermette and FOR THE DEFENDANT
Marguerite Vermette
SOLICITORS OF RECORD:
Robinson, Sheppard, Shapiro FOR THE PLAINTIFF
Montréal, Quebec
Jean-Marc Vermette and FOR THE DEFENDANT
Marguerite Vermette
Saint-Placide, Quebec
Jean-Paul Lalancette FOR THE MIS-EN-CAUSE
St-Lambert, Quebec
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