Docket: T-2613-22
Citation: 2025 FC 373
Ottawa, Ontario, February 26, 2025
PRESENT: The Honourable Mr. Justice Ahmed
BETWEEN: |
KINISTIN SAULTEAUX NATION represented by its Council |
Applicant |
and |
MOHAMMED A. CHOUDHARY |
Respondent |
JUDGMENT AND REASONS
I. Overview
[1] The Applicant, Kinistin Saulteaux Nation (“KSN”
), seeks judicial review of a wage recovery appeal decision (the “Appeal Decision”
) dated November 10, 2022 in which a referee (the “Referee”
) ordered KSN to pay the Respondent, Mohammed A. Choudhary (“Mr. Choudhary”
), a total of $29,384.44 in termination pay, overtime pay, and vacation pay pursuant to section 251.11 of the Canada Labour Code, RSC 1985, c L-2 (the “Code”
as it appeared on March 10, 2019).
[2] KSN submits the Referee erred by finding Mr. Choudhary was entitled to overtime pay. KSN requests that the Referee’s findings on overtime be quashed and the Appeal Decision varied to eliminate or, in the alternative, reduce, the overtime pay and resultant vacation pay owed to Mr. Choudhary.
[3] Although I find no error in the Referee’s determination that Mr. Choudhary was entitled to overtime pay, I agree with KSN that the Referee erred in its assessment of the number of overtime hours Mr. Choudhary worked. For the reasons that follow, this application for judicial review is allowed.
II. Background
A. Statutory Framework
[4] The Code governs the relationship between employees and employers in Canada, including standards for the payment of overtime.
[5] When Mr. Choudhary was employed by KSN, the Code required that employees who worked more than eight hours in a day or 40 hours in a week “be paid for the overtime at a rate of wages not less than one and one-half times [their] regular rate”
(the Code, ss 169, 174 as it appeared from April 17, 2018 to October 31, 2018). These provisions did not apply to “managers,”
“superintendents,”
or employees who “exercise management functions”
(the Code, s 167(2)(a) as it appeared from April 17, 2018 to October 31, 2018).
[6] Employees could seek relief from Code violations by filing a complaint to an inspector (the Code, s 251.01(1)(a)) as it appeared on September 20, 2018). Inspectors held the authority to issue a payment order if they found a complaint to be well-founded (the Code, s 251.1(1) as it appeared on February 27, 2019).
[7] Parties who disagreed with a payment order could submit a request for review of an inspector’s decision (the Code, s 251.101 as it appeared on March 10, 2019).
[8] Review decisions could be appealed to a referee appointed by the Minister (the Code, ss 251.11(1), 251.12(1) as it appeared on March 10, 2019). Referees were granted broad authority to accept evidence, establish procedures, and determine the parties to an appeal (the Code, s 251.12(2) as it appeared on March 10, 2019). Referees were also empowered to “make any order…necessary to give effect to [their] decisions”
(the Code, s 251.12(4) as it appeared on March 10, 2019).
[9] Subsection 251.101(7) of the Code (as it appeared on March 10, 2019) granted the Minister the power to “treat [a] request for review as an appeal”
by sending a request for review directly to a referee.
B. Facts
[10] KSN is a Band pursuant to the Indian Act, RSC 1985, c I-5. Starting on April 17, 2018, Mr. Choudhary served as the Chief Financial Officer (“CFO”
) of KSN. At the time, KSN was led by Chief Greg Scott.
[11] Upon starting work, Mr. Choudhary found KSN’s financial records were in a state of disarray. Moreover, KSN’s Director of Operations left their position shortly after Mr. Choudhary’s start date. As a result, Mr. Choudhary largely performed urgent or immediate financial matters that fell outside the scope of the CFO job description.
[12] During this time, Mr. Choudhary reported to Chief Greg Scott. He did not make decisions on behalf of KSN and was not engaged in recruitment or supervision of staff.
[13] Within two weeks of being hired, Mr. Choudhary had become concerned about his overtime hours. Chief Greg Scott told Mr. Choudhary to document his hours worked. Mr. Choudhary did so, recording his hours on a spreadsheet and, after May 21, 2018, in daily emails.
[14] On August 30, 2018, Mr. Choudhary’s doctor recommended that he should go on medical leave. Mr. Choudhary submitted a sick leave request, asserting that he was entitled “to be paid out from [his] sick time [accrued] and overtime…accumulated.”
KSN did not respond. Mr. Choudhary nonetheless went on sick leave on September 17, 2018.
[15] On September 20, 2018, Mr. Choudhary initiated a complaint for unpaid overtime pay, termination pay, and vacation pay (the “Complaint”
).
[16] On October 31, 2018, KSN terminated Mr. Choudhary’s employment, stating that, although “[KSN would] be providing [Mr. Choudhary] with the balance of any pay owed,”
overtime would not be paid as Mr. Choudhary “[was] not entitled to overtime pay”
according to “the terms of [his] employment agreement.”
[17] On November 21, 2018, the inspector assigned to Mr. Choudhary’s complaint (the “Inspector”
) mailed an allegations letter to Chief Greg Scott. There was no response.
[18] On December 18, 2018, the Inspector mailed a records request letter to KSN. There was again no response.
[19] Based on the information before them, the Inspector determined Mr. Choudhary was entitled to termination pay and vacation pay but not overtime pay, as he performed managerial functions pursuant to paragraph 167(2)(a) of the Code (as it appeared on January 22, 2019). On January 22, 2019, the Inspector informed the parties of this preliminary determination, inviting “[a]nyone who is a party to this dispute, who believes that these findings do not reflect the facts of the case, or has documentation which could modify or nullify this preliminary determination”
to “please forward [their] objections and documentation by February 6, 2019”
[emphasis in original]. Mr. Choudhary stated his disagreement with the Inspector’s findings on overtime pay. There was no response from KSN.
[20] On February 27, 2019, the Inspector mailed the parties a payment order for unpaid termination pay and vacation pay in the amount of $3,769.23, less relevant deductions, owed to Mr. Choudhary by KSN.
[21] KSN contacted the Inspector in March 2019 seeking a review of the Inspector’s decision and a copy of all materials relied upon by the Inspector in rendering their decision. KSN’s request was inadmissible, as it had failed to pay the Minister the amount owed prior to the expiry of the 15-day deadline to request a review (the Code, s 251.101(2) as it appeared on March 10, 2019).
[22] However, Mr. Choudhary had also requested a review in March 2019, seeking an appeal of the Inspector’s overtime and vacation pay findings before a referee. As Mr. Choudhary’s request was admissible, the matter proceeded to review.
[23] The determinative issue in the review was whether Mr. Choudhary held managerial status. Consequently, Mr. Choudhary’s request for review was sent directly to appeal, pursuant to subsection 251.101(7) of the Code (as it appeared on March 10, 2019).
[24] The appeal hearing took place on September 20, 2022 and September 21, 2022.
[25] On November 10, 2022, the Referee rendered the Appeal Decision. The Referee determined that Mr. Choudhary did not hold managerial status and was therefore owed overtime pay, ordering KSN to pay Mr. Choudhary a total of $29,384.44 in termination pay, overtime pay, and vacation pay. This is the decision that is presently under review.
III. Preliminary Issue
[26] KSN sought to adduce fresh evidence in this application. This evidence includes the KSN Saulteaux Nation Personnel Policy and Regulations (the “Personnel Policy”
), which was attached as an exhibit to the affidavit of WT, and a comparison chart of Mr. Choudhary’s reported overtime hours, which was not attached to an affidavit.
[27] KSN’s new evidence will not be considered. These materials do not appear in the Certified Tribunal Record and were not before the Referee at the time of the Appeal Decision. KSN’s new evidence is therefore inadmissible on judicial review (Association of Universities and Colleges of Canada v Canadian Copyright Licensing Agency (Access Copyright), 2012 FCA 22 at para 19).
IV. Issues and Standard of Review
[28] KSN presented several arguments in their written and oral submissions. In my view, these arguments raise one viable legal issue: whether the Appeal Decision is reasonable.
[29] Reasonableness is a deferential, but robust, standard of review (Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 at paras 12-13, 75, 85 (“
Vavilov”
)). The reviewing court must determine whether the decision under review, including both its rationale and outcome, is transparent, intelligible and justified (Vavilov at para 15). A decision that is reasonable as a whole is one that is based on an internally coherent and rational chain of analysis and that is justified in relation to the facts and law that constrain the decision-maker (Vavilov at para 85). Whether a decision is reasonable depends on the relevant administrative setting, the record before the decision maker, and the impact of the decision on those affected by its consequences (Vavilov at paras 88-90, 94, 133-135).
[30] For a decision to be unreasonable, the applicant must establish the decision contains flaws that are sufficiently central or significant (Vavilov at para 100). Not all errors or concerns about a decision will warrant intervention. A reviewing court must refrain from reweighing evidence before the decision maker, and it should not interfere with factual findings absent exceptional circumstances (Vavilov at para 125). Flaws or shortcomings must be more than superficial or peripheral to the merits of the decision, or a “minor misstep”
(Vavilov at para 100).
V. Analysis
[31] KSN submits the Appeal Decision is unreasonable, as the Referee failed to identify errors of fact or law in the Inspector’s assessment or provide a rational chain of analysis for their findings on overtime pay. KSN further submits the Referee failed to treat the review as an appeal and exceeded the scope of their jurisdiction by instead conducting a de novo hearing of the issues. According to KSN, the Referee erred in their assessment of the overtime hours worked by Mr. Choudhary and “failed to find that KSN has a right to pass and enforce its own Policies and Regulations”
pursuant to the United Nations Declaration on the Rights of Indigenous Peoples Act, SC 2021, c 14 (“UNDRIPA”
).
[32] Mr. Choudhary did not file written submissions in this application for judicial review. However, he attended the hearing and presented oral submissions on his own behalf. As the KSN’s counsel did not object to Mr. Choudhary’s oral submissions and Mr. Choudhary is a self-represented individual, Mr. Choudhary’s oral submissions will be considered by the Court.
[33] Mr. Choudhary submits the Referee rightly determined he was entitled to overtime pay, as the tasks he performed did not match the CFO role that he had been hired to fill. Mr. Choudhary submits the Referee made no error in calculating his overtime hours. Although there were discrepancies between the hours reported by Mr. Choudhary through email and the hours entered into his payroll spreadsheet, the Referee rightly preferred the information in the payroll spreadsheet since Mr. Choudhary’s email records were frequently outdated and inaccurate. If the Court determines that the Referee’s decision should be disturbed, Mr. Choudhary seeks an audience in front of “a new referee.”
[34] Turning to KSN’s submission that the Referee exceeded their jurisdiction, I find that the Referee was not obliged to solely identify errors in the Investigator’s decision in order to remain within the bounds of their mandate pursuant to the Code. In fact, the Code specifically empowered the Referee to “confirm, rescind, or vary, in whole or in part, the decision being appealed”
(Code, s 251.12(4)(a) as it appeared on March 10, 2019). The Code also granted referees broad latitude to “summon and enforce the attendance of witnesses,”
“administer oaths and solemn affirmations,”
“receive and accept…evidence and information,”
and “determine the procedure to be followed”
at appeal hearings (the Code, ss 251.12(2)(a), 251.12(2)(b), 251.12(2)(c), 251.12(2)(d) as it appeared on March 10, 2019). These provisions indicate that appeals within the meaning of the Code encompassed the authority to vary orders and conduct a fresh review of new and existing evidence. I cannot find the Referee exceeded the scope of their jurisdiction or failed to uphold their statutory mandate by exercising these exact powers. In my view, the Appeal Decision is reasonable, as it accords with the purpose and provisions of the governing statutory scheme (Vavilov at para 108).
[35] I similarly find no basis for KSN’s submission that the Referee failed to provide a rational chain of analysis for their findings. KSN submits the Referee disregarded the job posting for the role of CFO, which the Inspector relied upon to find Mr. Choudhary ineligible for overtime pay. However, the Referee was not obliged to accept that the tasks exercised by Mr. Choudhary from April to October 2018 aligned with the job posting for the CFO role. As stated in the Appeal Decision, “[t]he only evidence of the work actually done by [Mr. Choudhary] was his testimony”
and “[Mr. Choudhary] testified that the job he did was not the job described in the Job Posting.”
KSN asserts that the Referee unreasonably attempted to “speak on behalf of KSN”
in finding that Mr. Choudhary’s tasks “cannot be considered “matters of importance” on the level of the overall goals and objectives of the First Nation.”
However, the passage immediately following this sentence in the Appeal Decision provides an explanation for the Referee’s conclusion. The Referee wrote:
[Mr. Choudhary] could not make decisions for the First Nation. He was not involved in business decisions. He was not a part of Council. He did not provide any leadership or management.
There was also no evidence that [Mr. Choudhary] had any role with respect [to] staffing, hiring, firing, scheduling, discipline, supervision or any labour relations matters…
The Job Title…prerequisite…and…salary…may indicate that this was a management position. However, the actual work done by [Mr. Choudhary]…was not that of a “Chief Financial Officer” as spelled out in the Job Posting.
In my view, these findings articulate a rational chain of analysis for the Referee’s finding that Mr. Choudhary was not a manager and was therefore entitled to overtime pay (Vavilov at para 85). KSN’s submission that no coherent or rational chain of analysis was provided is contradicted by the written reasons.
[36] Furthermore, KSN’s submission that the Referee failed to recognize KSN’s “right to pass and enforce its own [p]olicies and [r]egulations in consideration of [UNDRIPA]”
is not borne out by the text of the Appeal Decision. The Personnel Policy was not before the Referee at the time of the Appeal Decision. The Referee nonetheless noted “[t]here was a Personnel Policy and Regulations in place”
and referred to specific provisions concerning KSN’s definition of normal working hours, its requirement of prior approval for overtime, its practice of compensating “[e]xtended hours worked”
through “equal time off,”
and its 12.5-day cap on paid sick leave. I do not find any commentary in the Appeal Decision concerning KSN’s right to enforce its own policies pursuant to the UNDRIPA. In my view, the Referee simply acknowledged the Personnel Policy and highlighted specific provisions that were of particular relevance to the appeal. Given the absence of evidence demonstrating that the Personnel Policy was placed before the Referee by KSN, it cannot be a reviewable error on the part of the Referee that the Personnel Policy is not discussed further in the Appeal Decision.
[37] However, I agree with KSN that the Referee erred in its assessment of the number of overtime hours worked by Mr. Choudhary. During the hearing, Mr. Choudhary acknowledged the discrepancy in his evidence on this issue, noting that he would often be required to work additional hours after sending his daily emails to the payroll department. Mr. Choudhary explained that he would then update his payroll spreadsheet with the additional hours worked. As a result, the hours reported by email were not “also recorded on the spread sheet,”
as determined by the Referee. The parties were in agreement that Mr. Choudhary provided two different accounts of the number of overtime hours worked. The Appeal Decision does not address this discrepancy or provide a rationale for preferring one number over the other. The Referee simply wrote: “[Mr. Choudhary] has documented and proven that he worked 513.9 hours over and above his 35 hours per week.”
In my view, the Appeal Decision is not intelligible or justified in light of the contradictory evidence on file (Vavilov at paras 126). I therefore agree with KSN that the Referee erred with respect to the number of overtime hours worked by Mr. Choudhary.
VI. Costs
[38] KSN sought costs in this matter. As costs are generally awarded to the successful party and KSN was only partially successful in this application, costs will not be awarded.
VII. Conclusion
[39] For these reasons, I grant this application for judicial review. Although the Referee reasonably determined Mr. Choudhary is not a manager and was therefore entitled to overtime pay, their calculation of the number of overtime hours Mr. Choudhary worked is not justified given discrepancies in the evidentiary record (Vavilov at para 126). Noting the lengthy procedural history of this matter and the highly evidentiary nature of the remaining issue in dispute – namely, the number of overtime hours worked by Mr. Choudhary – I quash the Appeal Decision and remit this matter for redetermination on an expedited basis. As appeals are now heard by the Canada Industrial Relations Board rather than referees following 2019 amendments to the Code, this matter will be remitted to the Canada Industrial Relations Board.
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