Date: 20030710
Docket: T-671-01
Citation: 2003 FC 816
BETWEEN:
ACTTON TRANSPORT LTD.
Applicant
- and -
DAWN STEEVES, CANADA (MINISTER OF LABOUR)
and RUSSELL LYLE McIVOR
Respondents
REASONS FOR ORDER AND ORDER
CAMPBELL J.
[1] For some 30 years, regulations made pursuant to the Canada Labour Code R.S. 1985, c-L.2 ("the Code") have been applied with respect to the modified standard hours of work requirements for motor vehicle operators. The present Application is a challenge to the jurisdiction of inspectors to enforce an employer's obligation to pay overtime wages.
A. Factual context and the issue for determination
[2] Mr. McIvor, a Respondent in the present Application, was employed by the Applicant ("Actton") as a waste disposal truck driver in Calgary from August to November, 1999. On leaving his employment, Mr. McIvor complained that he was due overtime wages which were not paid by Actton. As a result, by a letter dated March 19, 2001, Ms. Steeves, another Respondent to the present Application, an inspector acting under the authority of the Code, made an order dated March 19, 2001 (the "Order") requiring Actton to pay Mr. McIvor the overtime claimed.
[3] The Order was made as a result of Inspector Steeves' interpreting and applying the provisions of the Motor Vehicle Operators Hours of Work Regulations (SOR/72-431 as amended) ("the Regulations"), made pursuant to Part III of the Code, and which govern the payment of overtime wages for city and highway motor vehicle operators.
[4] It is agreed that the sole issue for determination in the present Application is the jurisdiction of Inspector Steeves to make the Order.
B. The legislative scheme governing the making of the Order
[5] Part III of the Code governs "standard hours, wages, vacations and holidays" with respect to employment, and employers and employees, of a federal work, undertaking or business; Actton is governed by these provisions. It is agreed that the Code sets up a scheme whereby employers are required to adhere to certain obligations to its employees, and are accountable for adherence to the obligations by the supervision of inspectors appointed under the Code.
[6] Part III governs the following wide range of employment issues under Divisions I to XV: hours of work, minimum wages, equal wages, annual vacations, general holidays, multi-employer employment, reassignment, maternity leave and parental leave, bereavement leave, group termination of employment, individual termination of employment, severance pay, garnishment, work-related illness and injury, unjust dismissal, and payment of wages. The present Application concerns Division I: hours of work.
1. The obligations
[7] Section 169(1) of Division I of Part III of the Code creates an obligation on an employer to adhere to standard "hours of work"; sections 171 and 172 provide for exceptions to the standard:
| 169. (1) Except as otherwise provided by or under this Division
(a) the standard hours of work of an employee shall not exceed eight hours in a day and forty hours in a week; and
(b) no employer shall cause or permit an employee to work longer hours than eight hours in any day or forty hours in any week.
...
171. (1) An employee may be employed in excess of the standard hours of work but, subject to sections 172, 176 and 177, and to any regulations made pursuant to section 175, the total hours that may be worked by any employee in any week shall not exceed forty-eight hours in a week or such fewer total number of hours as may be prescribed by the regulations as maximum working hours in the industrial establishment in or in connection with the operation of which the employee is employed.
...
172. (1) An employer may, in respect of employees subject to a collective agreement, establish, modify or cancel a work schedule under which the hours exceed the maximum set out in section 171 or in regulations made under section 175 if
(a) the average hours of work for a period of two or more weeks does not exceed forty-eight hours a week; and
(b) the schedule, or its modification or cancellation, is agreed to in writing by the employer and the trade union.
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169. (1) Sauf disposition contraire prévue sous le régime de la présente section_:
a) la durée normale du travail est de huit heures par jour et de quarante heures par semaine;
b) il est interdit à l'employeur de faire ou laisser travailler un employé au-delà de cette durée.
...
171. (1) L'employé peut être employé au-delà de la durée normale du travail. Toutefois, sous réserve des articles 172, 176 et 177 et des règlements d'application de l'article 175, le nombre d'heures qu'il peut travailler au cours d'une semaine ne doit pas dépasser quarante-huit ou le nombre inférieur fixé par règlement pour l'établissement où il est employé.
...
172. (1) L'employeur peut fixer, modifier ou annuler un horaire de travail qui est applicable à des employés liés par une convention collective et don't la durée est supérieure à la durée maximale du travail prévue à l'article 171 ou dans les règlements d'application de l'article 175, si les conditions suivantes sont réunies:
a) la moyenne hebdomadaire, calculée sur deux semaines ou plus, n'excède pas quarante-huit heures;
b) il s'entend par écrit avec le syndicat sur l'horaire, sa modification ou son annulation.
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[8] Section 174 of Division I creates an obligation on an employer to pay "overtime pay":
| 174. When an employee is required or permitted to work in excess of the standard hours of work, the employee shall, subject to any regulations made pursuant to section 175, be paid for the overtime at a rate of wages not less than one and one-half times his regular rate of wages.
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Sous réserve des règlements d'application de l'article 175, les heures supplémentaires effectuées par l'employé, sur demande ou autorisation, donnent lieu à une majoration de salaire d'au moins cinquante pour cent.
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[9] As a modification of the standard obligations, s.175(1) of Part I allows the Governor in Council to make regulations with respect to hours of work and overtime pay, if, in the opinion of the Governor in Council, the circumstances so require:
| 175. (1) The Governor in Council may make regulations
(a) modifying the provisions of sections 169 and 171 for the purpose of the application of this Division to classes of employees who are employed in or in connection with the operation of any industrial establishment where, in the opinion of the Governor in Council, the application of those sections without modification
(i) would be or is unduly prejudicial to the interests of the employees in those classes, or
(ii) would be or is seriously detrimental to the operation of the industrial establishment;
(b) exempting any class of employees from the application of any one or more of sections 169, 171 and 174 where the Governor in Council is satisfied that those sections cannot reasonably be applied to that class of employees;
(c) providing that section 174 does not apply in circumstances where work practices specified in the regulations are followed that in the opinion of the Governor in Council make the application of that section either unreasonable or inequitable; and
(d) providing for the calculation of hours worked by employees of any class who are employed in any industrial establishment or in any class of industrial establishment.
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175. (1) Le gouverneur en conseil peut, par règlement:
a) adapter les dispositions des articles 169 et 171 au cas de certaines catégories d'employés exécutant un travail lié à l'exploitation de certains établissements s'il estime qu'en leur état actuel, l'application de ces articles:
(i) soit porte - ou porterait - atteinte aux intérêts des employés de ces catégories,
(ii) soit cause - ou causerait - un grave préjudice au fonctionnement de ces établissements;
b) soustraire des catégories d'employés à l'application des articles 169, 171 et 174, ou de l'un ou l'autre, s'il est convaincu qu'elle ne se justifie pas dans leur cas;
c) prévoir que l'article 174 ne s'applique pas dans les cas où, à son avis, certains usages en matière de régime de travail - mentionnés dans le règlement - n'en justifient pas l'application ou font qu'elle serait inéquitable;
d) fixer le mode de calcul de la durée du travail des employés de certaines catégories travaillant dans certains établissements ou certaines catégories d'établissements.
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[10] A condition precedent to enacting the Regulations under s.175(1) is compliance with s.175(2):
| (2) No regulations may be made pursuant to paragraph (1)(a) or (b) unless the Minister, pursuant to section 248, has caused an inquiry to be made into and concerning the employment of employees liable to be affected thereby and has received a report from the person or persons appointed to hold the inquiry.
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(2) La prise de règlements d'application de l'alinéa (1)a) ou b) est subordonnée à la tenue d'une enquête - sur le travail d'employés susceptibles d'être touchés par ses dispositions - demandée, aux termes de l'article 248, par le ministre, ainsi qu'à la réception par celui-ci du rapport en découlant.
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[11] In 1972, the Regulations were promulgated pursuant to s.175(1). It is agreed that, prior to promulgation, the Minister of Labour conducted an inquiry as required.
[12] Section 2 of the Regulations provides the following key definitions:
| "bus operator" means a motor vehicle operator who operates a bus;
"city motor vehicle operator" means a motor vehicle operator who operates exclusively within a 10-mile radius of his home terminal and is not a bus operator and includes any motor vehicle operator who is classified as a city motor vehicle operator in a collective agreement entered into between his employer and a trade union acting on his behalf or who is not classified in any such agreement but is considered to be a city motor vehicle operator according to the prevailing industry practice in the geographical area where he is employed;
"employer" means a person who operates an industrial establishment described in section 3;
"highway motor vehicle operator" means a motor vehicle operator who is not a bus operator or a city motor vehicle operator; [Emphasis added]
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« conducteur d'autobus » désigne un conducteur de véhicule automobile qui conduit un autobus;
« conducteur urbain de véhicule automobile » désigne un conducteur de véhicule automobile qui exerce son activité uniquement dans un rayon de 10 milles de son terminus d'attache et qui n'est pas un conducteur d'autobus, et comprend tout conducteur de véhicule automobile classé comme conducteur urbain de véhicule automobile dans une convention collective intervenue entre son employeur et un syndicat qui agit en son nom, ou tout conducteur qui n'est pas classé aux termes d'une convention de ce genre mais qui est censé être un conducteur urbain de véhicule automobile selon la pratique courante de l'industrie dans le secteur géographique où il est employé;
« employeur » désigne une personne qui exploite un établissement industriel décrit à l'article 3;
« conducteur routier de véhicule automobile » désigne un conducteur de véhicule automobile qui n'est pas un conducteur d'autobus ni un conducteur urbain de véhicule automobile;
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[13] Section 3 of the Regulations modifies the standard hours of work and maximum hours of work provisions of the Code as follows:
| 3. The provisions of sections 169 and 171 of the Act are modified to the extent set out in these Regulations for the purpose of the application of Division I of the Act to the following classes of employees:
(a) bus operators,
(b) city motor vehicle operators, and
(c) highway motor vehicle operators who are employed upon or in connection with the operation of any industrial establishment engaged in
(d) the transportation of goods or passengers by motor vehicle from any point within a province to any point outside that province, or
(e) transportation of mail anywhere in Canada.
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3. Les dispositions des articles 169 et 171 de la Loi sont adaptées dans la mesure prévue par le présent règlement pour l'application de la section I de la Loi aux catégories suivantes d'employés :
a) les conducteurs d'autobus,
b) les conducteurs urbains de véhicules automobiles, et
c) les conducteurs routiers de véhicules automobiles qui sont employés dans ou en rapport avec l'exploitation de tout établissement industriel de
d) transport de marchandises ou de passagers par véhicule automobile, de tout endroit situé dans une province à tout endroit situé hors de cette province, ou
e) transport du courrier n'importe où au Canada.
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[14] Sections 5(1) and 6(1) of the Regulations set out the modified standard hours of work for each of a "city motor vehicle operator" and a "highway motor vehicle operator" as follows:
| 5. (1) Subject to subsection (2) and section 8, the standard hours of work of a city motor vehicle operator may exceed 8 hours in a day and 40 hours in a week but shall not exceed 9 hours in a day and 45 hours in a week, and no employer shall cause or permit a city motor vehicle operator to work longer hours than 9 hours in a day or 45 hours in a week.
...
6. (1) Subject to this section and section 8, the standard hours of work of a highway motor vehicle operator may exceed 40 hours in a week but shall not exceed 60 hours, and no employer shall cause or permit a highway motor vehicle operator to work longer hours than 60 hours in a week.
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5. (1) Sous réserve du paragraphe (2) et de l'article 8, la durée normale du travail d'un conducteur urbain de véhicule automobile peut dépasser 8 heures par jour et 40 heures par semaine mais non 9 heures par jour ou 45 heures par semaine et nul employeur ne doit faire ou laisser travailler un tel conducteur
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6. (1) Sous réserve du présent article et de l'article 8, la durée normale du travail d'un conducteur routier de véhicule automobile peut dépasser 40 heures par semaine mais non 60 heures et nul employeur ne doit faire ou laisser travailler un tel conducteur au-delà de 60 heures par semaine.
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2. Enforcement of the obligations
[15] The obligations on an employer created under Part III of the Code, as modified by the Regulations, are under the supervision of inspectors designated pursuant to s.249(1) of Division XVI of Part III:
| 249. (1) The Minister may designate any person as an inspector for the purposes of this Part.
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249. (1) Le ministre peut désigner quiconque à titre d'inspecteur pour l'application de la présente partie.
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[16] For example, with respect to the payment of wages, an inspector has authority to take enforcement action:
| 251. (1) Where an inspector finds that an employer has failed to pay an employee any wages or other amounts to which the employee is entitled under this Part, the inspector may determine the difference between the wages or other amounts actually paid to the employee under this Part and the wages or other amounts to which the employee is entitled under this Part.
251.1 (1) Where an inspector finds that an employer has not paid an employee wages or other amounts to which the employee is entitled under this Part, the inspector may issue a written payment order to the employer, or, subject to section 251.18, to a director of a corporation referred to in that section, ordering the employer or director to pay the amount in question, and the inspector shall send a copy of any such payment order to the employee at the employee's latest known address.
(2) Where an inspector concludes that a complaint of non-payment of wages or other amounts to which an employee is entitled under this Part is unfounded, the inspector shall so notify the complainant in writing.
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251. (1) S'il constate que l'employeur n'a pas versé à l'employé le salaire ou une autre indemnité auxquels celui-ci a droit sous le régime de cette partie, l'inspecteur peut déterminer lui-même la différence entre le montant exigible et celui qui a été effectivement versé.
251.1 (1) L'inspecteur qui constate que l'employeur n'a pas versé à l'employé le salaire ou une autre indemnité auxquels celui-ci a droit sous le régime de la présente partie peut ordonner par écrit à l'employeur ou, sous réserve de l'article 251.18, à un administrateur d'une personne morale visé à cet article de verser le salaire ou l'indemnité en question; il est alors tenu de faire parvenir une copie de l'ordre de paiement à l'employé à la dernière adresse connue de celui-ci.
(2) L'inspecteur qui conclut à l'absence de fondement d'une plainte portant que l'employeur n'a pas versé à l'employé le salaire ou une autre indemnité auxquels celui-ci a droit sous le régime de la présente partie avise le plaignant par écrit de sa conclusion.
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[17] An appeal procedure is provided from an inspector's decision to the Minister of Labour by s.251.11(1) of the Code. Upon receipt of the appeal, by s.251.12(1) the Minister is required to appoint a referee to hear and adjudicate the appeal. The hearing before the referee is a hearing de novo.
C. The "Explanatory Guidelines"
[18] To assist inspectors and referees in the enforcement process, the Minister of Labour has published "Explanatory Guidelines". The purpose of citing them here is to give an understanding of how the Minister of Labour interprets the Code and the Regulations, and, as a consequence, why inspectors and referees might take the responsibility to interpret and apply the definition of "city motor vehicle operator". Paragraphs 7 and 8 of the Guidelines state as follows:
7. Under the former Orders and Regulations concerning transport of goods industry, a definition of city driver was not given. Generally the employer's practice was accepted, and few problems reported. On the other hand, there have been a few obvious cases where city drivers have been classified as highway drivers, probably to avoid the higher standard applicable to the city driver class. For this reason, as a final resort in the case of dispute and possible prosecution, it was necessary to frame a definition. The present definition is not intended to interfere with the practice of the industry. As previously, the question of whether a correct classification has been made will be left to the judgment of the Inspector in the majority of cases.
8. a) All motor vehicle operators (except bus operators) who drive ten miles or less from their home terminal must be considered city motor vehicle operators. Even if their employer has designated them as highway operators, and regardless of the practice, in the area or under a collective agreement, they must be paid in accordance with the overtime standard for city drivers. This is the minimum definition of a city driver.
b) Motor vehicle operators in the transport of mail and goods who drive more than 10 miles from their home terminal, must still be classified as city motor vehicle operators under the Regulations if they are covered by a collective agreement which classifies them as city drivers.
c) Where there is no agreement, the prevailing practice by which employees in a geographical area are classified as city motor vehicle operators must be applied. In all cases, however, an employee who never travels more than 10 miles from his home terminal must be classified as a city motor vehicle operator, regardless of the prevailing practice. (Respondent's Application Record, Tab P, pp.2-3)
It is uncertain whether Inspector Steeves consulted the Guidelines in making her findings in the present case. However, for an example of how the Guidelines are in use in the enforcement process see Active-Ultrahaul v. Nantais, [2000] C.L.A.D. No. 340, where at paragraph 29, the referee rendering the decision cites the features of the Guidelines just quoted above.
[19] I agree with the argument of counsel for Actton that, regardless of the Minister of Labour's interpretation, the use being made of them, and the fact that an appeal lies from an inspector's payment order, the issue of an inspector's jurisdiction to make a payment order is a proper question for determination on the present Application.
D. The enforcement order in the present case
[20] In a letter to counsel for Actton dated November 16, 2000, Inspector Steeves made the following finding as part of an exchange respecting Actton's obligation to pay overtime wages to Mr. McIvor:
It is clear that the prevailing industry practice in the Calgary area for city drivers exceeds the 10 mile (16 kilometre radius) and includes the Calgary city boundaries and the municipalities of High River, Aldersyde, Okotoks, Cochrane, Airdire [sic] Crossfield and would also include Strathmore (31 km. from the Calgary city centre). (Applicant's Record, p.240)
[21] As a result of the finding, the essential elements of the payment order made by Inspector Steeves which is under review in the present case are as follows:
To: Actton Transport Ltd.
19395 Langley By-Pass
Surrey, B.C.
V3S 6K1
Re: Russell McIvor
Unit 43, 420 Grier Avenue NE
Calgary, Alberta
T2K 5X6
In accordance with subsection 251.1(1) of the Canada Labour Code, you are hereby ordered to pay, within 15 days from the date you received this payment order, to the Receiver General of Canada, on account of RUSSELL MCIVOR the total amount of $1,053.00, less deductions permitted pursuant to paragraphs 254.1(2)(a), (b) and (e) of the Code.
This amount represents non-payment of the following amounts as required under sections 174, 175 and 188 Part III of the Canada Labour Code:
Overtime Wages (August 23, 1999 through November 9, 1999) $1012.50
Vacation Pay (4% of overtime wages owing) $ 40.50
Total Entitlements Owing $1053.00
Payment in accordance with this payment order is made by certified cheque or money order, payable to the Receiver General for Canada, and delivered or mailed to the undersigned inspector. Payment must be accompanied by a statement identifying deductions which have been made pursuant to paragraph 254.1(2)(a), (b) and (e) of the Code. (Applicant's Record, p.252).
[22] The record shows that, in reaching her decision, Inspector Steeves took into account the arguments provided by counsel for Actton as well as evidence resulting from her own investigation of the prevailing practice in the industry in which Actton operated in the vicinity of Calgary. It is agreed that the "correctness" of Inspector Steeves' determination of the practice in the industry is not at issue in the present Application.
E. Actton's jurisdictional attack
[23] Actton's jurisdictional attack focusses on what it argues to be an unlawful delegation of authority to inspectors to make the determination of an element of the definition of "city motor vehicle operator". Actton agrees that inspectors do have the jurisdiction to determine whether a particular driver is classified in a collective agreement, or if not, operates exclusively within a 10-mile radius of his or her home terminal, and to make a payment order based on these determinations. However, Actton argues that an inspector does not have jurisdiction to make a determination with respect to the other alternate means of deciding on an employer's obligation to pay overtime, being the application of the "prevailing industry practice in the geographic area" where the driver is employed.
[24] Actton argues that, in law, the Governor in Council is the body that should at least determine the precise boundaries of geographic areas across the country in which the prevailing practice for all employers in the industry in that area can be determined, if not actually dictating the prevailing industry practice itself in each area after conducting a fact finding inquiry.
[25] With respect to the inquiry element of the argument, Actton points out that the Regulations could not have been promulgated in 1972 without an inquiry being conducted pursuant to s.175(2) of the Code; Actton argues that the inquiry process should be regularized to provide needed amended, and, therefore, current direction to employers respecting the payment of overtime wages. As I understand it, the basis for this submission is s.31(4) of the Interpretation Act, R.S. 1985, c. I-21 which reads as follows:
| 31(4) Where a power is conferred to make regulations, the power shall be construed as including a power, exercisable in the same manner and subject to the same consent and conditions, if any, to repeal, amend or vary the regulations and make others.
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31(4) Le pouvoir de prendre des règlements comporte celui de les modifier, abroger ou remplacer, ou d'en prendre d'autres, les conditions d'exercice de ce second pouvoir restant les mêmes que celles de l'exercice du premier.
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[26] I do not accept Actton's inquiry argument. On the wording of s.175(2), with respect to creating a modification to the obligation to pay overtime as specified in s.174, it is agreed that an inquiry was required to be held by the Minister of Labour prior to the making of the Regulations. However, with respect to the application of the Regulations under consideration in the present case, I see no requirement on the Minister of Labour, or the Governor in Council, to continue the inquiry process.
[27] Actton's primary jurisdictional argument is that, in giving definition to the phrase "prevailing industry practice", Inspector Steeves was making law, which is something she is unauthorized to do; that is, only the Governor in Council has that authority, and her purported authority to act is an unlawful delegation.
1. Actton's unlawful delegation of authority argument
[28] Actton's argument is framed in its Memorandum of Fact and Law as follows:
22. The Applicant submits that Steeves had no jurisdiction to make the determination as to what the prevailing industry practice was in the geographical area in which McIvor was employed and that any purported exercise of that jurisdiction by her was a result of an improper sub-delegation of that function by the Governor in Council. The Applicant submits that the sub-delegation of legislative powers is clearly ultra vires the delegate of Parliament if the governing statute states that the power must be exercised personally, on [sic] in this case, by the Governor in Council. Section 175 of the Canada Labour Code states that the Parliament of Canada may delegate the legislative power to make regulations under s. 175 to the Governor in Council and to no other person or body, including the Minister of Labour or Steeves.
23. The Applicant submits that the Governor in Council, upon the inclusion of the words "...is considered to be a city motor vehicle operator according to the prevailing industry practice in the geographical area where he is employed..." has, expressly or impliedly, delegated a legislative consideration it was entrusted by Parliament to make, which, in and of itself, offends the maximum delegatus non potest delegare. The problem is compounded by the fact that there is absolutely no indication whatsoever in the Canada Labour Code or the Regulation as to what person or which body might be empowered to make such a determination. Flowing from that, it is clear that there is no delegation of the power to determine the prevailing industry practice by the Governor in Council to the Minister of Labour and, as such, Steeves is not entitled to exercise the power to determine the prevailing industry practice in the Minister's name.
24. The Applicant submits that the consideration of what the prevailing industry practice is in the geographical area where McIvor is employed is a legislative function and not merely an administrative function. This submission is bolstered by the inclusion of section 175(2) in the Canada Labour Code which indicates that an inquiry under section 248 of the Code must first be held before the Governor in Council might make regulations affecting the employment of employees liable to be affected by a regulation. This indicates that decisions made related to these overtime issues are treated as more than mere administrative matters.
25. The Applicant submits that notwithstanding the failure of the definition to identify who is to "consider" the question of the prevailing industry practice, it is ultimately not relevant to the question of determining whether there has been an improper sub-delegation. The law related to improper sub-delegation states even if there is no express sub-delegation in the language of the Regulation, an implied sub-delegation is still sufficient for this Court to apply the maxim delegatus non potest delegare where that sub-delegation is improper and hold that the impugned portion of the definition to be ultra vires.
. . .
30. In the context of the case at bar, this case is authority for the submission that the Governor in Council can not abdicate its responsibility to enact a regulatory scheme which sets out the prevailing industry practice in different geographical areas on the basis that it would be impossible to draft such regulations. In the case at bar, the Governor in Council has legislated that a "city motor vehicle operator" is an operator who operates his vehicle exclusively within a ten mile radius of his home terminal. If the Governor in Council wishes to deviate from this definition based on geographical locations, it must pass regulations to that effect with respect to each of those geographical locations or it might pass a regulations [sic] which increases the radius to some distance over 10 miles. However, what the Governor in Council is not permitted to do, by law, is delegate that responsibility to Steeves or the Minister. (Applicant's Record, pp.262-266)
[29] In support of the unlawful delegation argument, Actton relies on three decided cases: [1973] S.C.R. 131">Brant Dairy Company Limited and Walkerton Dairies Limited v. The Milk Commission of Ontario and the Ontario Milk Marketing Board [1973] S.C.R. 131 (S.C.C.) which concerns the establishment of a plan for the regulation of the marketing of milk and cheese and the authorized, but found to be flawed, sub-delegation of powers to carry out the plan from the Commission to the Board; [1956] S.C.R. 318">The Attorney General of Canada v. Brent [1956] S.C.R. 318 (S.C.C.) which concerns a statutory authority in the Governor in Council to make regulations limiting immigration admission to persons by an enumerated list of matters, and a flawed regulation which purported to delegate authority over the same enumerated matters to immigration officers; and [1979] 2 S.C.R. 2">Canadian Institute of Public Real Estate Companies et al v. The Corporation of the City of Toronto [1979] 2 S.C.R. 2 (S.C.C.) which concerns a statutory requirement on a city council to set certain development standards, and a flawed by-law which purported, but failed, to do so.
[30] I find that the important distinguishing difference between the delegated authority cases cited and the authority of an inspector appointed under the Code is that, the authority of the inspector is derived directly from Parliament under the Code, and not from any delegation by regulation or otherwise.
[31] It is important to remember that s.3 of the Regulations specifically states that the Regulations provide a modification to the hours of work provisions of s.169 and s.171, specially for motor vehicle operators; that is, the Regulations do not purport to delegate authority, but merely modify statutory obligations.
[32] Thus, I dismiss Actton's delegated authority argument and find that Inspector Steeves had jurisdiction to make the Order.
[33] An ancillary argument made by Actton is that the content of the term "prevailing industry practice in the geographic area" is uncertain. I also dismiss this argument. The content of the term is certainly ascertainable by an inspector or referee on an evaluation of evidence in a particular case; besides Inspector Steeves' finding in the present case, it is agreed that many others have been made, including the recent example in Active-Ultrahaul v. Nantais, supra, where the referee decided at paragraph 34 as follows:
I find that the standard for City drivers given the reality of the industry practice on the facts of this case is the 100 mile radius.
F. Conclusion
[34] In my opinion, the intent of Part III of the Code and the Regulations is clear. I find that the scheme of Part III of the Code and the Regulations creates obligations on an employer which must be met by the actions of the employer. That is, in the case of overtime pay, it is first the obligation of an employer to decide what overtime to pay. If the employee concerned disagrees with the decision, the right exists to make a complaint which triggers the involvement of an inspector. Once involved, the inspector can exercise powers of investigation under s.249(2), gather evidence, and take enforcement action if considered necessary.
[35] Section 251(1) of the Code is important in deciding upon an inspector's jurisdiction and bears repeating here:
| 251. (1) Where an inspector finds that an employer has failed to pay an employee any wages or other amounts to which the employee is entitled under this Part, the inspector may determine the difference between the wages or other amounts actually paid to the employee under this Part and the wages or other amounts to which the employee is entitled under this Part. [Emphasis added]
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251. (1) S'il constate que l'employeur n'a pas versé à l'employé le salaire ou une autre indemnité auxquels celui-ci a droit sous le régime de cette partie, l'inspecteur peut déterminer lui-même la différence entre le montant exigible et celui qui a été effectivement versé.
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[36] By this provision, an inspector is authorized to find whether an employer has met its payment of overtime obligation. I agree with counsel for the Respondent's argument that, in arriving at a conclusion, the inspector is authorized to make certain key factual findings, including the finding of the "prevailing industry practice" of paying overtime.
[37] Thus, rather than the inspector making an unauthorised law by finding the prevailing industry practice in a certain geographic area, as argued by Actton, I find that the inspector is applying the law as required by the Code and the Regulations to come to a factual conclusion on a particular complaint.
[38] In my opinion, the duty of fairness owed by the inspector in making the factual finding of the prevailing industry practice requires that due process be accorded to both the employer and the employee. That is, to be fair, the inspector must ask for, and carefully consider, the employer's rationale for the overtime pay decision made, and the employee must be provided with the opportunity to make a response. If an inspector does his or her own investigation as to the prevailing industry practice, the evidence gathered must be made available to the employer and employee for consideration, argument, and potential rebuttal evidence before the investigator makes a finding about the "correctness" of the employer's decision. In the process of divulging evidence given on a confidential basis, the party relying on the evidence should take all reasonable caution to safeguard the confidence given.
[39] A primary impetus for Actton's jurisdictional attack stems from its perception that a chaotic situation exists as a result of inspectors across the country providing their individual interpretations of who is a "city motor vehicle operator", in randomly decided geographic areas, on a case by case basis. Actton argues that allowing inspectors to make this determination results in unwarranted uncertainty, and has an unfair impact on competitiveness in the trucking industry in a given location. For example, Actton argues that, since making a determination is complaint driven, it is possible for an inspector to decide the obligation to pay overtime for a certain employer resulting in increased labour costs, while a competitor next door is not required to make the same payment because none of its employees filed a similar complaint; thereby the neighbour gains an unfair competitive advantage.
[40] My practical answer to this concern is to ensure that notice goes to trucking employers and employees in a certain geographic area, advising of the inspector's decision respecting the obligation to pay overtime in that area, so that each might then decide whether action is needed to conform with the decision.
[41] In the affidavit in support of the present Application, Actton's Vice-President offers the opinion that it was impossible for Actton to know what the prevailing industry practice was for waste disposal operators at the time Mr. McIvor commenced his employment because they were not published anywhere, nor could Actton know who would make such a determination.
[42] My response to this statement of concern is that, if it is necessary to determine the prevailing industry practice to meet its overtime payment obligations to Mr. McIvor, or other of its employees, Actton just has to do its best to make the determination. The subsequent involvement of an investigator, and perhaps a referee, can be used to judge how well it did in meeting the challenge.
[43] I find that Actton has failed in its attack on the Order.
O R D E R
Accordingly, for the reasons provided, the Application is dismissed.
I make no order as to costs.
"Douglas R. Campbell"
Judge
OTTAWA
FEDERAL COURT OF CANADA
TRIAL DIVISION
Date: 20030710
Docket: T-671-01
BETWEEN:
ACTTON TRANSPORT LTD.
Applicant
- and -
DAWN STEEVES, CANADA (MINISTER OF LABOUR) and RUSSELL LYLE McIVOR
Respondents
REASONS FOR ORDER and ORDER
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-671-01
STYLE OF CAUSE: ACTTON TRANSPORT LTD. v. DAWN STEEVES,
CANADA (MINISTER OF LABOUR) and RUSSELL
LYLE McIVOR
PLACE OF HEARING: Calgary, Alberta
DATE OF HEARING: June 24, 2003
REASONS FOR ORDER
AND ORDER BY: THE HONOURABLE JUSTICE D. R. CAMPBELL
DATED: Thursday, July 10, 2003
APPEARANCES:
Mr. James R. Kitsul FOR APPLICANT
Mr. Rick Garvin FOR RESPONDENT
SOLICITORS OF RECORD:
James R. Kitsul Law Corporation FOR APPLICANT
Morris A. Rosenberg FOR RESPONDENT
Deputy Attorney General of Canada
Edmonton, Alberta
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