Date:
20080918
Dockets: A-321-07
A-320-07
A-322-07
A-323-07
A-324-07
A-325-07
Citation: 2008 FCA 275
CORAM: DÉCARY J.A.
BLAIS J.A.
RYER J.A.
A-321-07
BETWEEN:
TAIGA WORKS-WILDERNESS LTD.
Applicant
and
AMY KIN-HO LAU
Respondent
A-320-07
BETWEEN:
TAIGA WORKS-WILDERNESS LTD.
Applicant
and
LE SI HU
Respondent
A-322-07
BETWEEN:
TAIGA WORKS-WILDERNESS LTD.
Applicant
and
WAN LAU LO
Respondent
A-323-07
BETWEEN:
TAIGA WORKS-WILDERNESS LTD.
Applicant
and
ZHONG HAO LIANG
Respondent
A-324-07
BETWEEN:
TAIGA WORKS-WILDERNESS LTD.
Applicant
and
CUI WEN MA
Respondent
A-325-07
BETWEEN:
TAIGA WORKS-WILDERNESS LTD.
Applicant
and
WOON KING HO
Respondent
Heard at Vancouver,
British Columbia, on September 15, 2008.
Judgment
delivered at Vancouver, British Columbia, on September 18, 2008.
REASONS FOR JUDGMENT BY:
BLAIS J.A.
CONCURRED
IN BY: DÉCARY
J.A.
RYER J.A.
Date:
20080918
Dockets: A-321-07
A-320-07
A-322-07
A-323-07
A-324-07
A-325-07
Citation: 2008 FCA 275
CORAM: DÉCARY
J.A.
BLAIS
J.A.
RYER
J.A.
A-321-07
BETWEEN:
TAIGA WORKS-WILDERNESS LTD.
Applicant
and
AMY KIN-HO LAU
Respondent
A-320-07
BETWEEN:
TAIGA WORKS-WILDERNESS LTD.
Applicant
and
LE SI HU
Respondent
A-322-07
BETWEEN:
TAIGA WORKS-WILDERNESS LTD.
Applicant
and
WAN LAU LO
Respondent
A-323-07
BETWEEN:
TAIGA WORKS-WILDERNESS LTD.
Applicant
and
ZHONG HAO LIANG
Respondent
A-324-07
BETWEEN:
TAIGA WORKS-WILDERNESS LTD.
Applicant
and
CUI WEN MA
Respondent
A-325-07
BETWEEN:
TAIGA WORKS-WILDERNESS LTD.
Applicant
and
WOON KING HO
Respondent
REASONS FOR JUDGMENT
BLAIS J.A.
[1]
This
is an appeal from a decision rendered by Umpire Max Teitelbaum of the Office of
the Umpire, on May 28, 2007.
[2]
Generally,
the issue between the parties is whether six seamstresses in the employ of
Taiga Works-Wilderness Equipment Ltd. (“Taiga”) left their employment with or
without just cause after Taiga allegedly modified the terms and conditions of
their salary and wages.
[3]
Specifically
at issue in this judicial review is whether the umpire properly confirmed that
the employees had just cause in leaving the employment of Taiga, upholding the
Board of Referees’ decision.
[4]
The
decision of the umpire should be upheld.
Background
The Commission’s
Decision
[5]
On
December 20, 2005, the Canadian Employment Insurance Commission (the
“Commission”) determined that eleven seamstresses did not demonstrate just
cause for leaving the employment of Taiga. This determination was based on the
Commission’s view that the respondents had not pursued reasonable alternatives
to walking off the job, including contacting the employment agency or
Employment Standards prior to quitting. It therefore imposed an indefinite
disqualification of benefits pursuant to sections 29 and 30 of the Employment
Insurance Act.
The Board’s Decision
[6]
At
the Board level, the seamstresses’ appeals were joined in two groups. The first
group of appellants were represented by Ms. Huang (A-316-07), the second group
of appellants were represented by Ms. Lau (A-321-07). The two groups were subject
to two separate hearings before the Board of Referees and the evidence in each
case does not appear to have been the same. Each decision, in turn, led to
separate appeals before this Court.
[7]
On
March 15, 2006, the Board of Referees determined that the Lau respondents did
have just cause for voluntarily leaving Taiga’s employment. Included in the
reasons were that,
[t]he Board could not find any
evidence that the changes [in the method for determining pay] made by the
company would increase the claimant’s wages. The claimant had pay stubs which
showed that her wage calculations were very complicated and they were unable to
determine what the end result would be (Exhibit 14.5). Despite many vehement
statements that their employees would benefit from the new wage structure,
Taiga did not provide any evidence to support their position. In fact, in
Taiga’s exhibit 15.2, the employer states that: … “we hired an operator with
only average skills who, after a couple of weeks, achieved about $20.00/hour
for this work and, when using last year’s rate would have reached about
$24.00/hour.”
Although the Board is not
certain this was Mr. Behrman’s goal, this statement supports the claimant’s
argument that wages are going down, not up.
[8]
The
Board’s decision also pointed to the employer’s refusal to improve difficult
working conditions including low temperature, lack of light, unisex washrooms,
lack of communication with management, the elimination of paid breaks, and lack
of compensation for overtime. The Board further found that Taiga’s November 3,
2005 announcement that the base rate of pay would be $8.00/hour directly
precipitated the seamstresses’ decision to walk off the job. Based on these
findings, the Board determined that the Lau respondents did not have time to
look for alternate work and did not have access to management in order to
discuss the November 3 wage change. Therefore, the Board held the Lau
respondents met the criteria for just cause under paragraphs 29(c)(iv) and
(vii) of the Employment Insurance Act. This subsection reads,
|
29
(c) just cause for voluntarily leaving an employment or taking leave from an
employment exists if the claimant had no reasonable alternative to leaving or
taking leave, having regard to all the circumstances, including any of the
following:
(i)
sexual or other harassment,
(ii)
obligation to accompany a spouse, common-law partner or dependent child to
another residence,
(iii)
discrimination on a prohibited ground of discrimination within the meaning of
the Canadian Human Rights Act,
(iv)
working conditions that constitute a danger to health or safety,
(v)
obligation to care for a child or a member of the immediate family,
(vi)
reasonable assurance of another employment in the immediate future,
(vii)
significant modification of terms and conditions respecting wages or salary,
(viii)
excessive overtime work or refusal to pay for overtime work,
(ix)
significant changes in work duties,
(x)
antagonism with a supervisor if the claimant is not primarily responsible for
the antagonism,
(xi)
practices of an employer that are contrary to law,
(xii)
discrimination with regard to employment because of membership in an
association, organization or union of workers,
(xiii)
undue pressure by an employer on the claimant to leave their employment, and
(xiv)
any other reasonable circumstances that are prescribed.
(emphasis
added)
|
29
c) le
prestataire est fondé à quitter volontairement son emploi ou à prendre congé
si, compte tenu de toutes les circonstances, notamment de celles qui sont
énumérées ci-après, son départ ou son congé constitue la seule solution
raisonnable dans son cas :
(i)
harcèlement, de nature sexuelle ou autre,
(ii)
nécessité d’accompagner son époux ou conjoint de fait ou un enfant à charge
vers un autre lieu de résidence,
(iii)
discrimination fondée sur des motifs de distinction illicite, au sens de la Loi
canadienne sur les droits de la personne,
(iv)
conditions de travail dangereuses pour sa santé ou sa sécurité,
(v)
nécessité de prendre soin d’un enfant ou d’un proche parent,
(vi)
assurance raisonnable d’un autre emploi dans un avenir immédiat,
(vii)
modification importante de ses conditions de rémunération,
(viii)
excès d’heures supplémentaires ou non-rémunération de celles-ci,
(ix)
modification importante des fonctions,
(x)
relations conflictuelles, dont la cause ne lui est pas essentiellement
imputable, avec un supérieur,
(xi)
pratiques de l’employeur contraires au droit,
(xii)
discrimination relative à l’emploi en raison de l’appartenance à une
association, une organisation ou un syndicat de travailleurs,
(xiii)
incitation indue par l’employeur à l’égard du prestataire à quitter son
emploi,
(xiv)
toute autre circonstance raisonnable prévue par règlement.
(accentuation est celui de l’auteur)
|
[9]
The
umpire considered written submissions from the applicant before making his
decision. On May 28, 2007 the umpire concluded that these submissions did not
contain new information and that they simply reiterated the employer’s
position.
[10]
The
umpire concluded that the Board had come to a decision that was reasonably open
to it and that the facts supported this conclusion. The umpire found the Board
had not committed any error in either fact or law in making its decision and on
that basis did not interfere with the Board’s decision.
Analysis
[11]
The
applicant argues that with respect to the Lau respondents, both the Board and
the umpire made a decision based on an erroneous finding of fact made in a
perverse or capricious manner or without regard for the material before them. The
applicant further argues that under paragraph 115(2)(c) of the Employment
Insurance Act and paragraph 18.1(4)(d) and subsection 28(2) of the Federal
Courts Act both decisions should be overturned on this basis.
[12]
The
Board made findings of fact that were reasonably open to it and within its
mandate. These conclusions could not therefore be interfered with by the umpire.
The conclusion that the employer announced a significant unilateral change to
the terms and working conditions, regardless of their date of implementation,
was sufficient to justify the Board’s finding of just cause under section 29(c)
(vii) of the Employment Insurance Act.
[13]
The
applicant has not demonstrated that the umpire made a reviewable error in
deciding not to interfere with the Board’s decision. Therefore, the judicial
review regarding the Lau respondents should be dismissed.
Conclusion
[14]
I
would dismiss the application.
[15]
The
parties did not seek costs therefore I would award no costs.
"Pierre
Blais"
“I
concur
Robert
Décary J.A.”
“I
concur
C. Michael Ryer J.A.”
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND
SOLICITORS OF RECORD
DOCKETS:
A-321-07
A-320-07
A-322-07
A-323-07
A-324-07
A-325-07
STYLE OF CAUSE:
TAIGA WORKS-WILDERNESS LTD.
V. AMY KIN-HO LAU
TAIGA WORKS-WILDERNESS LTD.
V. LE SI HU
TAIGA WORKS-WILDERNESS LTD.
V. WAN LAU LO
TAIGA WORKS-WILDERNESS LTD.
V. ZHONG HAO LIANG
TAIGA WORKS-WILDERNESS LTD.
V. CUI WEN MA
TAIGA WORKS-WILDERNESS LTD.
V. WOON KING HO
PLACE OF HEARING: Vancouver, British Columbia
DATE OF HEARING: September 15, 2008
REASONS FOR JUDGMENT BY: BLAIS J.A.
CONCURRED IN BY: DÉCARY J.A.
RYER JA.
DATED: September 18, 2008
APPEARANCES:
|
Robert A. Kasting
|
FOR
THE APPLICANT
|
|
No
one appeared
|
FOR
THE RESPONDENTS
|
SOLICITORS
OF RECORD:
|
Stewart, Aulinger &Co. Vancouver B.C.
|
FOR
THE APPLICANT
|
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