Docket: T-1836-13
Citation:
2015 FC 509
Ottawa, Ontario, April 21, 2015
PRESENT: The
Honourable Mr. Justice de Montigny
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BETWEEN:
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5652210
MANITOBA LTD.
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Applicant
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and
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ARTHUR
KIELBOWICZ
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Respondent
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JUDGMENT AND REASONS
[1]
This is a judicial review under section 18.1 of
the Federal Courts Act, RSC 1985, c F-7, of an October 3, 2013 wage
recovery appeal by a referee appointed under the Canada Labour Code, RSC
1985, c L-2 [the Code]. The referee found the Respondent Arthur Kielbowicz was
an employee of the Applicant, and ordered the Applicant to pay the Respondent
for unpaid wages and costs in the proceeding.
[2]
For the reasons that follow, the application
ought to be dismissed. Having carefully considered the record, I have come to
the conclusion that the numerous allegations of procedural unfairness, to a
large extent, are a reflection of the acrimonious relationship between the
referee and the Applicant’s counsel at the hearing. While controversial and at
times even unconventional, the referee’s procedure and actions at the hearing
did not reveal a bias against the Applicant. The decision itself is
well-reasoned and supported, and the referee’s findings are reasonable in the
face of a very contentious factual dispute.
I.
Facts
[3]
The Applicant is a numbered company in the
business of road transportation in Manitoba, and its president is Mr. Harminder
Walia. The Respondent is Arthur Kielbowicz, a driver and mechanic.
[4]
The Applicant hired the Respondent in January
2009 as a driver to haul shipments from Winnipeg to a variety of locations in
northern Manitoba. The Respondent was paid through his own corporation, Artcan
Import and Export Corporation. The nature of the relationship and the basis of
payment are now in dispute.
[5]
The job involved much driving on winter roads to
remote locations. Through the course of the winter, numerous problems and
disputes arose. The Respondent found himself working additional hours repairing
equipment and being stranded in remote locations due to vehicle breakdowns. The
Respondent alleged that the Applicant failed to compensate him for the full
amount of time worked in February, March and April, 2009.
[6]
The Respondent made a complaint to Labour
Standards on May 20, 2009. An inspector appointed under the Code (Inspector
Schewe) issued a decision on December 17, 2010. In a prior decision dated
February 3, 2010, the inspector had determined that an employer/employee
relationship existed. In the December 17 decision, the inspector found no wages
owing due to lack of evidence of hours worked, but awarded $845.12 for
unauthorized deductions and vacation pay. Both parties appealed the inspector’s
decision.
[7]
In February 2011, the Minister of Labour
appointed a referee pursuant to the Code.
[8]
The hearing took place over a two year period:
July 20-21, 2011; June 5-6, 2013; June 19-20, 2013; and August 7-8, 2013. At
the hearing in 2011, the Applicant was represented by Mr. Boudreau; on June
5-6, 2013, Mr. Boudreau was not present at the hearing and the Applicant was
represented by its president, Mr. Walia; the Applicant retained its current
counsel for the hearing on June 19-20, 2013 and thereafter. The Respondent was
self-represented throughout. The decision is dated September 19, 2013, and the
payment order dated October 3, 2013, was received by the parties on October 7,
2013.
II.
The impugned decision
[9]
The referee, Derek Booth, found that there was
an employer-employee relationship and that unpaid wages were due: he ordered
the Applicant to pay $19,552.95 in unpaid wages, allowances, and costs for the
hearing. The referee first reviewed the testimony and evidence given on each
day of the hearing, and then made findings and conclusions, which reasons can
be found in a 32 page decision.
[10]
At the hearing held on July 20-21, 2011, the
Applicant was represented by Mr. Boudreau. The hearing opened with the parties’
opening statements. The Applicant raised an objection of jurisdiction: counsel
argued that the referee lacked jurisdiction because there was no employment
relationship. He submitted that an employee under the Code had to be an
individual person, and that it was a corporation that was employed as a
contractor by the Applicant. The referee reserved judgment.
[11]
The Applicant then called Harminder Walia as a
witness. Mr. Walia gave an account of how the Respondent was hired and paid as
an independent contractor, and presented an alleged contract (Exhibit 16). This
contract was an agreement to pay a per-mile rate ($0.42/mile) for regular
highway, plus a flat rate for winter roads. When asked about the log books, he
stated that “he does not have them”. The
Respondent then called Raymond Buors, a (former) supervisor in Mr. Walia’s
companies. He testified to a number of problems that occurred with Mr. Walia’s
trucking operation in winter 2009. After this, the Applicant closed his case and
the Respondent then began testimony.
[12]
The matter was then adjourned. The next hearing
dates (in November 2011) were also adjourned, and nothing was heard “from either party” until such time as the referee
contacted them in March 20, 2013 to ask whether they were proceeding. The
Applicant (through Mr. Boudreau) asked for the appeal to be struck for want of
prosecution and delay. For his part, the Respondent apparently thought he would
be advised of new dates, and still wanted to proceed. The referee advised they
would be proceeding and set dates for June 2013. On April 2, 2013, Mr. Boudreau
advised that the Applicant would be representing itself. The Respondent
produced new exhibits, including photos and a revised claim.
[13]
At the hearing on June 5-6, 2013, both parties
were self-represented. The Respondent continued his testimony with interruption
and cross-examination by Mr. Walia. The Respondent introduced a document with
what he alleged were the agreed upon terms of the contract, handwritten on the
back of Mr. Walia’s business card (Exhibit 6). The Respondent also submitted an
account of his hours worked. During the Respondent’s testimony, and after he
had introduced his handwritten list of hours which he had submitted to Mr. Walia
in 2009, Mr. Walia produced a copy of the missing log books. When asked why he
did not produce the log books earlier, he requested an adjournment to contact a
lawyer. When he could not get Mr. Boudreau, he requested another adjournment.
Finally, Mr. Walia agreed to proceed with the remainder of the examination in
chief, and the referee agreed to adjourn so he could get a lawyer for the
Respondent’s cross-examination. After the Respondent’s examination in chief, Mr.
Walia produced for the first time the original of the alleged contract (Exhibit
30). Mr. Walia then called another witness, Mr. Joseph Noval, an alleged
supervisor for Mr. Walia’s companies. Mr. Noval, who signed the alleged
contract, contradicted Mr. Walia’s testimony about when and where the contract
was signed, and did not know when the additions and insertions were made. After
this, Mr. Walia continued his cross-examination of the Respondent. Mr. Walia
also advised he wanted to call three additional witnesses and that he was
filing a motion to have the referee removed.
[14]
On June 12, 2013, the referee issued a written
decision denying Mr. Walia’s request for the referee to recuse himself on the
grounds of racial bias.
[15]
On June 13, 2013, the Applicant applied to the
Federal Court for a judicial review of the referee’s decision not to recuse
himself and for a stay of proceedings pending the outcome of the judicial
review (file T-1060-13). The Applicant alleged the referee had referred to a
third party as a “negro”, which evidenced a
racial bias against the Applicant, who was himself dark-skinned and had been
the victim of racism in the past. Justice Gagné did not rule on the question of
bias; she denied the stay as premature and found no irreparable harm in
continuing the hearing. She recommended the remainder of the proceedings be
recorded.
[16]
At the hearing on June 19-20, 2013, the
Applicant was represented by new counsel, Mr. Purves, and the proceedings were
recorded. The Applicant began with two objections: first, that the referee
should remove himself for conflict of interest; second, that the Respondent not
be permitted to call Mr. Walia’s wife, Sapna Rai, as a witness. The conflict of
interest objection was based on the fact that the referee had been a partner at
the law firm of the Applicant’s former lawyer, Mr. Boudreau. The referee
refused the objection, noting that he had no current ties to that firm and had
no dealings with the Applicant, and that Mr. Boudreau himself had proceeded for
two days without any objection. He reserved on the objection regarding Ms. Rai.
The Applicant’s new counsel continued the cross-examination of the Respondent.
On June 20, 2013, the Respondent presented a re-calculated claim based on an
increased hourly overtime rate.
[17]
On August 7 and 8, 2013, the Respondent’s
cross-examination concluded and no additional witnesses were called. The
parties then gave closing statements.
[18]
The referee found that the Respondent agreed to
be paid on the basis of hours and mileage. Although the Respondent did not keep
good records of his hours, the referee accepted the Respondent’s viva voce
evidence in its entirety, and gave it more weight than the written logs. The
referee found that there was an agreement to be paid at $23.35/hour and
$0.44/mile: he found that the terms of employment were captured in the
handwritten notes on the back of the Applicant’s business card (Exhibit 6). The
hourly rate included all work performed, including driving time, repair work,
and time spent stranded.
[19]
The referee found that the terms of the contract
were captured in the writing on the back of the business card, which the
inspector did not have, and not by the alleged contract tendered by the
Applicant. Had the inspector conducted an inquiry with respect to the alleged
contract, he would have found that it was not a valid contract because it was
undated and portions had been added after it was signed. By contrast, the
referee accepted that the handwritten notes in Exhibit 6 reflected the true
terms of the contract.
[20]
The referee determined that the hours worked
were substantiated based on the Respondent’s testimony, the log books, and the
photographs taken by the Respondent on the roads. On this point, he overturned
the inspector’s decision, because the inspector did not have the benefit of
this evidence. The referee also found that the Applicant had “suppressed” the log books.
[21]
The referee found the Respondent’s testimony to
be credible: his evidence was corroborated by the other witnesses, and his
cross-examination only affirmed and reinforced his evidence. By contrast, the
referee found Mr. Walia “not in the least bit credible”
due to his suppression of the log books and the original alleged contract, “selective memory”, contradictions with his own
witness Mr. Noval, and his “glib, obsessively fast and
unremitting narration” and “evident lack of sincerity” (Decision, p 26).
[22]
As a result of the testimony and exhibits, the Applicant’s
use of different companies’ business cards and Mr. Walia’s admission that “my wife was president of all the companies”, the
referee added Harminder Walia, Sapna Rai (Mr. Walia’s wife), SVB Co. Inc., and
SVB Inc. as liable parties, pursuant to paragraph 251.12(2)(e) of the
Code. The relevant provisions of the Code are reproduced in the Annex.
[23]
The referee ruled on the jurisdiction objection:
he found that there was an employment relationship, therefore he did have
jurisdiction. Although the Respondent received payment through a corporation,
this appellation was merely a payment device. The evidence establishes that the
Respondent was an employee, not an independent contractor, for the same reasons
found by Inspector Schewe and the fact that:
(a) AK [the Respondent] was economically
entirely dependent on the employer; (b) the employer exercised direction and
control over AK; (c) decided what work was to be performed, when and where; (d)
provided the trucks and paid for all maintenance on the trucks (except for
emergency work performed by AK and in some cases use of his own tools).
Accordingly, I agree that the employer exercised control and direction over the
employee.
There was no evidence that AK gained or lost
capital on his own account, pursued profit and risked loss and the only
commodities supplied was his labour. He was economically dependent on the
employer and under an obligation to perform work or services for same.
With respect to the use of the name Artcan
Import Export & Transportation, and the fact that no deductions were made
by the employer, I find that there is a full answer in the Dynamex case
(supra).
(Decision, pp 28-29.)
[24]
As to the hours worked and amounts owing, the
referee accepted the Respondent’s statement of his hours and the amended claim,
with certain exceptions. His reasons for accepting the large amount of hours
are as follows:
I find whether AK was actually driving on
the winter roads, or whether he was stranded, or whether he was working
repairing trucks or trying to get them unstuck or back on the road, he was
nevertheless engaged or kept out of town by the employer for all of those hours
and I am allowing all hours that he has claimed on the winter roads, except
where there are inconsistencies as stated above.
(Decision, p 30.)
[25]
The referee accepted the Respondent’s
explanation for discrepancies between his time claimed and the log books: the
drivers were “encouraged to make alterations” to
the log books because if the proper time was noted, it would exceed the maximum
time allowed by regulation.
[26]
The referee therefore calculated the number of
hours worked in February (329), March (532) and April (28), and awarded wages
based on these hours. The referee did not grant the Respondent’s full claim for
the overtime wage rate, but awarded a lump-sum allowance for overtime. The
referee awarded additional amounts for highway miles, unauthorized deductions,
vacation pay on the additional earnings, as well as $2,500 for the costs of the
hearing.
III.
Issues
[27]
This matter raises the following two issues:
A.
Did the referee breach procedural fairness?
B.
Did the referee exceed his jurisdiction or make
unreasonable findings?
IV.
Analysis
[28]
Before addressing the main issues in this
application, a word must be said about a procedural matter. On March 9, 2015,
the Respondent requested a case management conference to address two “important issues”. First, because “the applicant raised the argument that SVB Inc. and SVC Co.
Inc. are not federal undertakings as contemplated in the Code”, the
Respondent submits a 2009 letter from the Manitoba Ministry of Labour and
Immigration giving the opinion that the “matters”
(apparently the dispute between the Respondent and the Applicant) fall under
federal and not provincial jurisdiction. Second, in response to evidence about
cash receipts, the Respondent submits the affidavit of Amber Peters, a former
secretary of Mr. Walia, who denies ever issuing certain cash payments to the
Respondent or his wife.
[29]
Prothonotary Lafrenière denied the request for a
case management conference. At the hearing, the Respondent tried to introduce
his new evidence, over the objection of the Applicant. I ruled from the bench
that the documents sought to be introduced by the Respondent are inadmissible,
essentially for two reasons. First, I agree with counsel for the Applicant that
the Respondent is attempting to circumvent the December 22, 2014 Order by
Prothonotary Lafrenière preventing him from filing affidavits. Because the
Respondent was late in filing his record, he was not permitted to file
affidavits, but only a memorandum. Therefore, he should not be able to file
affidavits or evidence now.
[30]
In any event, the new documents are not relevant
to the core issues on judicial review. On the corporate entities, the Applicant
has not even argued that the corporations (SVB Inc. and SVB Co. Inc.) are not
federal undertakings. On the issue of cash receipts, the question of whether or
not cash advances were issued to the Respondent or his wife is not at issue in
this judicial review. Therefore, these documents are at best peripheral to the
current proceeding.
A.
Did the referee breach procedural fairness?
[31]
The Applicant makes six allegations with respect
to procedural fairness. First, he argues that the referee’s substantial delay
prejudiced the Applicant because by 2013, it would be nearly impossible to find
possible rebuttal witnesses. Second, the referee displayed a disregard for the
administration of justice by losing the original copy of the alleged contract.
Third, the referee displayed bias and racial prejudice by referring to a third
party as a “negro”; Mr. Walia is dark-skinned
and sensitive to racial prejudice. Fourth, in August 2013, the referee waved a
rubber mallet (used as a gavel) in the face of the Applicant’s lawyer, and the
Applicant felt threatened. Fifth, the referee breached natural justice by
allowing the Respondent to modify his claim after the Applicant had closed his
case. Sixth, natural justice was breached because the Applicant was required to
present his entire case first. The referee has authority under paragraph 251.12(2)(d)
to set procedure, but was required to give full opportunity to the parties to
present evidence; this was not done, since the Applicant did not have a full
opportunity to present evidence.
[32]
In my view, the delay did not breach procedural
fairness. The reasons for the long beak between 2011 and 2013 are not clear:
the referee’s notes simply say there was a drop-off in communication. In his
reasons, the referee indicates that counsel for the Applicant asked for the
adjournment in November 2011, indicating that he would not be available until
after April 16th, 2012. Having heard nothing from the parties, the
referee wrote them both in March 2013 and asked if the matter was settled or if
they were proceeding. In those circumstances, the delay cannot be blamed on the
Respondent. Be that as it may, there is no evidence of prejudice to the
Applicant in resuming proceedings following the almost 2-year hiatus. The
Applicant argues it lost the opportunity to call rebuttal witnesses, but this
argument does not hold up. The Applicant had closed his case after the first
days of hearings in June 2011. Nonetheless, the Applicant did call a rebuttal
witness in 2013, Mr. Noval. Moreover, there is no evidence of prejudice: in his
affidavit, Mr. Walia does not say which other witnesses he would have liked to
call but could not call due to delay. Further, the referee’s hearing notes do
not refer to any motion to dismiss for lack of prosecution when the hearing
resumed in June 2013; presumably, Mr. Walia did not raise this issue at the
hearing, and Mr. Boudreau was no longer his lawyer. As far as I can see, the
Applicant did not request to call any other witnesses, and was not prevented
from doing so because of the delay.
[33]
The allegation pursuant to which the loss of the
original contract breaches the Applicant’s right to audi alteram partem
is also unfounded. First of all, there is no evidence that the referee is
responsible for the loss of that document. Moreover, there were two copies of
that alleged contract on file (Exhibits 16 and 33).
[34]
As for the order of presenting the evidence, the
referee has authority under paragraph 251.12(2)(d) of the Code to set
procedures, but must ensure that all parties have the opportunity to present
evidence. While the standard of review is usually correctness for issues
pertaining to procedural fairness, this is an instance where “a degree of deference” is due, since this is a review
of the referee’s procedural choices: see Re: Sound v Fitness Industry
Council of Canada, 2014 FCA 48, at paras 34-42.
[35]
In my view, the referee fulfilled his obligation
in this case, although the presentation of evidence was admittedly chaotic. The
Applicant was permitted and did cross-examine the Respondent and the
Respondent’s witness; further, the Applicant was allowed to call an additional
witness (Joseph Noval) in June 2013, after the Applicant had closed his case in
2011. Moreover, there is no evidence that the Applicant was prevented from
calling additional witnesses after the Respondent’s cross-examination. In
short, I have not been convinced that the referee’s chosen order of presenting
evidence caused any prejudice to the Applicant.
[36]
The same is true of the decision to allow the
Respondent to present an amended claim on June 20, 2013 (Exhibit 46). The
record shows that the Respondent did indeed present an amended claim on June 20,
2013, in the middle of his cross-examination, and long after the Applicant had
closed his case. Applicant’s counsel objected to the admission of this
document, but the referee allowed it, with the proviso that the Applicant’s
counsel would be given time to review it and compare it to the prior versions of
the claim. The referee therefore considered the issue, decided to allow the
document, and made allowances to minimize prejudice to the Applicant. Moreover,
Applicant’s counsel agreed to this procedure (Hearing transcript June 20, 2011,
pp 383-386, Applicant’s Record, pp 633-636). Considering the referee’s
authority to set the procedures and the limited deference that is owed to his
decisions in that respect, I see no reason to intervene. There was no breach of
natural justice in permitting the Respondent to submit this amended claim.
[37]
In fact, the amended claim was substantially
similar to a document submitted earlier in the proceeding (see Exhibits 18 and
19): it claimed the same number of hours, but recalculated the wages owed based
on overtime hourly rates. The Applicant had ample opportunity to cross-examine
the Respondent on this amended claim; actually, most of June 20 and August 7,
2013 were spent scrutinizing this document and other evidence submitted by the
Respondent. In the end, the referee did not accept the overtime rates claimed.
Therefore, while it may be unorthodox to allow an amended claim that late in
the proceeding, there is no reason for this Court to intervene.
[38]
Counsel for the Applicant also made a number of
allegations tending to show that the referee was biased. Having carefully read
the record and the available transcript, I am unable to find clear evidence of
prejudice against the Applicant. This is not to say that the referee and the
Applicant did not have a strained relationship: indeed, the Applicant asked the
referee to recuse himself twice, and applied for judicial review of one such
refusal. For his part, the referee was clearly not impressed with Mr. Walia or
his counsel. The referee and Mr. Purves had several acrimonious exchanges
during the hearing, including the alleged “mallet
incident” on August 7, 2013, of which I will say more shortly. In the
decision, the referee found Mr. Walia “not in the least
bit credible”, and found that he attempted to manipulate the witnesses
and had suppressed evidence. While there were certainly outbursts and moments
of unprofessionalism at the hearing by all parties, in my view this does not
reveal a bias. Nor is bias established by the mere fact that the referee
accepted the evidence of the contract by the Respondent on the back of a
business card while rejecting other pieces of evidence coming from the
Applicant.
[39]
The racial bias allegation is similarly a red
herring. The Applicant alleges that the referee used the word “negro” to refer to a third party during the hearing
on June 5-6, 2013, for which there is no transcript. Justice Gagné did not rule
on the merits of this racial bias allegation, but did recommend that the
proceedings be recorded. Mr. Walia alleges in his affidavit that the referee continued
to use this word during the hearing dates captured on the record (June 19-20
and August 7, 2013). While the referee did refer to a third party as a “negro, a black fellow”, and continued to defend the
use of this word (see Applicant’s Record pp 421, 725-726, and 1004-1006) this
does not establish that the referee has a racial bias against Mr. Walia
himself. Admittedly, the referee’s continued use of the word after Mr. Walia
complained is insensitive, but there is no evidence that it tainted the referee’s
findings.
[40]
As for the “rubber
mallet incident”, while bizarre, it displays the acrimonious
relationship between the referee and Applicant’s counsel, but does not rise to
the level of bias. At the start of the hearing on August 7, 2013, the referee
explained:
I brought a gavel or mallet, and when I rap
it on the table everyone is going to quit speaking except the court reporter
and myself, who is containing his mirth. (…) So that hopefully will curtail any
bickering back and forth.
(Transcript August 7, 2013, p 515;
Applicant’s Record, p 766.)
[41]
During the cross-examination of the Respondent
by Mr. Purves, the referee intervened in the questioning. In a peculiar and
seemingly childish exchange, Mr. Purves said “you can
hammer your mallet all you want” and “point your
mallet at me again”. The exchange continued, and at one point Mr. Walia interjected
to say: “It is threatening, sir. It is threatening,
sir. I’m threatened. It’s threatening, sir. I’m threatened”, and
apparently stood up and waved his hands. At this point, the referee ejected Mr.
Walia from the proceedings. After a brief pause, Mr. Walia was allowed back in,
under Mr. Purves’ instructions that he was not to speak unless addressed by the
referee or Mr. Purves (see Applicant’s Record pp 833-838). From this exchange,
it can be assumed that the relationship between the referee and Mr. Purves had
degenerated and that the tension in the room was very high. The use of a mallet
was certainly odd, and even unprofessional and capricious. I have not been convinced,
however, that bias has been established.
[42]
The test for bias was most clearly enunciated by
Justice de Grandpré in his dissenting reasons in Committee for Justice and
Liberty v National Energy Board, [1978] 1 S.C.R. 369, at 394:
…the apprehension of bias must be a
reasonable one, held by reasonable and right minded persons, applying
themselves to the question and obtaining thereon the required information…[The]
test is “what would an informed person, viewing the matter realistically and
practically – and having thought the matter through – conclude. Would he think
that it is more likely than not that [the decision maker], whether consciously
or unconsciously, would not decide fairly.
[43]
An allegation of bias is obviously serious, and
shall not be made lightly. It cannot rest on mere suspicion, conjecture or
impressions of an applicant or his counsel, but must be supported by cogent
evidence. I have not been convinced that this threshold has been met in the
case at bar. The hearing was obviously tense, and at times during the
Respondent’s cross-examination, the referee intervened to clarify or move the
cross-examination forward, almost taking the role of an advocate for the
Respondent. There were several tense exchanges between the referee and Mr. Purves
(see for example Applicant’s Record at pp 405-406, 623-626 and 833-838), and
there are also indications that strong words were exchanged between the parties
during breaks (see for example Applicant’s Record, pp 412-413, 926-931). From
what I can tell, it was an unpleasant and protracted proceeding. That being
said, the Applicant has not made out a reasonable apprehension of bias, and
there is no indication in the actual reasons of the referee that any of the
alleged breaches of procedural fairness affected his decision.
B.
Did the referee exceed his jurisdiction or make
unreasonable findings?
[44]
Counsel for the Applicant conceded at the
hearing that it would be “a tall order” to
challenge the reasonableness of the decision if it were not for procedural
fairness issues. It is agreed between the parties that the substance of the
referee’s decision involves questions of mixed fact and law and pure questions
of fact, which should be reviewed on the standard of reasonableness: Bellefleur
v Diffusion Laval, 2012 FC 172, at para 20 [Bellefleur]; Albani v
Rogers Communications, 2014 FC 662, at para 25 [Albani]. The same
holds true for the referee’s determination of whether an employment
relationship exists; while such a finding was held by the Federal Court of
Appeal to be reviewable on a standard of correctness in Dynamex Canada v
Mamona, 2003 FCA 248, at para 45 [Dynamex], this authority has been
overtaken by post-Dunsmuir jurisprudence (see Bellefleur and Albani,
above) and the presumption that the reasonableness standard applies for the
tribunal’s interpretation of its home statute (Alberta (Information and
Privacy Commissioner) v Alberta Teachers’ Association, 2011 SCC 61, at para
34; McLean v British Columbia (Securities Commission), 2013 SCC 67, at
paras 21-22, 33).
[45]
In my view, the decision to add the two
corporations and two individuals as liable parties was reasonable. The
referee’s powers under subsection 251.12(2) are quite broad: paragraph
251.12(2)(e) of the Code gives the referee the power to add any party
who, in the referee’s opinion, “has substantially the
same interest as one of the parties and could be affected by the decision”.
The Applicant argues that the referee improperly added the two corporations and
Ms. Rai, because there is no formal connection between the Applicant
corporation and those parties. It is true that Ms. Rai is the sole shareholder
of SVB Inc., but is neither a shareholder nor director of the Applicant
corporation. That being said, neither the corporate structure nor the absence
of Ms. Rai as a witness precludes the referee from adding these parties. The
referee explains briefly why he added the parties: it was based on the
testimony and exhibits of three witnesses (the Respondent, Raymond Buors, and
Joseph Noval), as well as Mr. Walia’s admission (“my
wife was president of all the companies”) and the interchangeable use of
the business names. The companies all share the same address, and the evidence
showed that Ms. Rai was involved in the operations in some capacity. In fact,
the business card on which the terms of the contract were written (Exhibit 6)
itself says “SVB Inc.” and shows Mr. Walia as
the business manager.
[46]
In short, there was ample evidence to show the
connection and confusion between the different companies and individuals. The
referee determined on the facts that these parties had substantially the same
interest and were likely to be affected. In my view, adding these parties is
consistent with the purpose of Part III of the Code, which is to protect
individual workers and create certainty in the labour market, because it
ensures that the Respondent will be able to recover the wages owed (see Dynamex,
above, at paras 31-35). The fact that one liable party (SVB Co. Inc.) may not
exist, as the Applicant argues, has no bearing on the standing of the other
added parties (SVB Inc., Sapna Rai, and Mr. Walia). I find, therefore, that the
referee’s decision to add these parties is reasonable.
[47]
Counsel for the Applicant also contends that the
referee acted without jurisdiction because there was no employer-employee
relationship. Here again, I agree with the Respondent that the referee could
reasonably come to that conclusion. Both the inspector and the referee found an
employment relationship by applying the common law factors to the facts, and
the Applicant’s only argument to dispute this finding is that the rationale
linking the facts of this case to the common law principle is brief and is lacking
in the substantive examination of the applicable law.
[48]
The referee gave reasons for confirming the
inspector’s finding: he applied several common law factors in finding the
requisite level of control and direction for an employment relationship, as can
be seen from the quote of his reasons reproduced at paragraph 23 of these
reasons. The referee also explained why he found an employment relationship
despite the fact that the Respondent was paid through a corporation (Decision,
pp 26-27). Overall, the referee’s reasons do reflect the law and are not
superficial. Contrary to the Applicant’s contention, the Dynamex
decision cited by the referee for the proposition that the language used in an
employment contract is not determinative to the existence of an employment
relationship was relevant. Accordingly, there is no reason to disturb the
referee’s finding.
[49]
The remaining findings are findings of fact that
are entirely reasonable. The Applicant contests the referee’s findings on the
terms of the contract and hours worked, and argues that the referee gave too
little weight to the alleged contract, the original version of which was lost,
and to the employer’s contemporaneous records (invoices and log books). In
essence, the Applicant asks this Court to reweigh the evidence duly considered
by the referee. In my view, the referee gave ample reasons why he favoured the
Respondent’s testimony and handwritten notes about the terms of the contract
(Exhibit 6) over the alleged contract prepared by the employer (Exhibit 16),
and why he preferred the Respondent’s after-the-fact account of hours worked
over the contemporaneous written records. The referee found Mr. Walia not
credible as a witness; he found the Respondent credible, and his version
corroborated by other witnesses; he found that the employer had “suppressed” the log books; and he also accepted the
Respondent’s explanation for the discrepancies between the log books and the
actual trips and hours worked. Regarding the high number of hours worked, the
referee also explained why he allowed the hours, sometimes up to 24 hours per
day: he allowed all hours the Respondent was engaged or was kept out of town
(Decision, p 30; quoted at para 24 of these reasons). Given that the Respondent
was often stranded or working extra hours to repair equipment, the high number
of hours in February and March is not unreasonable on its face; rather, it is
explained and based on the evidence. In short, there is no reason to reweigh
the evidence and disturb the referee’s findings of fact.
V.
Conclusion
[50]
For all of the foregoing reasons, I come to the
conclusion that this application for judicial review ought to be dismissed.
This proceeding, for an amount of less than $20,000 in wage recovery, has
already dragged on for almost six years and has become unnecessarily
complicated and bitter. While some incidents at the hearing are troublesome,
the decision itself is reasonable and does not exhibit any signs of bias, real
or apprehended. In those circumstances, the just and most appropriate outcome
is to uphold the referee’s decision.
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