Actton Transport Ltd. et al. v. Director of Employment Standards (B.C.) et al., (2010) 287 B.C.A.C. 233 (CA)

• Judge: Donald, Chiasson and Neilson, JJ.A.
• Court: Court of Appeal (British Columbia)
• Case Date: June 02, 2010
• Jurisdiction: British Columbia
• Citations: (2010), 287 B.C.A.C. 233 (CA);2010 BCCA 272

Actton Transport v. Employment Standards (2010), 287 B.C.A.C. 233 (CA);

    485 W.A.C. 233

MLB headnote and full text

Temp. Cite: [2010] B.C.A.C. TBEd. JN.014

Actton Transport Ltd. and Super Save Disposal Inc. (appellants/petitioners) v. Director of Employment Standards, Attorney General of British Columbia, Employment Standards Tribunal, Robert Cardinal, Stephen Smith, Todd Norberg and Larry Catt (respondents/respondents)

(CA036637; 2010 BCCA 272)

Indexed As: Actton Transport Ltd. et al. v. Director of Employment Standards (B.C.) et al.

British Columbia Court of Appeal

Donald, Chiasson and Neilson, JJ.A.

June 2, 2010.

Summary:

Four garbage truck drivers filed complaints alleging they were not paid overtime in accordance with the Employment Standards Act (ESA). The complainants drove Super Save Disposal Inc. trucks solely within British Columbia. Actton Transport Ltd., which operated an interprovincial and international trucking business, supplied labour and services to Super Save, including drivers. Actton and Super Save (the appellants) contended that as the drivers were employed by Actton, a federally regulated enterprise, the ESA did not apply to them and the Director of Employment Standards had no jurisdiction. The Director's delegate decided that the matter was provincial, not federal. That decision was affirmed on appeal to the Employment Standards Tribunal. The Tribunal also rejected the appellants' complaint that the decision maker was biased and had committed other breaches of natural justice. The appellants petitioned for judicial review.

The British Columbia Supreme Court, in a decision reported at [2008] B.C.T.C. Uned. D39, ruled that the Tribunal did not err in finding that the drivers' employment fell under provincial jurisdiction. In a decision reported at [2009] B.C.T.C. Uned. 448, the court dismissed the claim for the relief sought, including remitting the complaints related to bias and other natural justice grounds to the Director. The court held that since it had decided the constitutional question conclusively and there was no issue that the complainants, if covered by the ESA, were entitled to the overtime calculated, it would be futile to send the matter back to the Director. The appellants appealed, arguing that the reviewing judge erred: (a) in determining that the Director had jurisdiction under the ESA with respect of the employment of employees of Actton; (b) in splitting the proceedings and thereby deciding the constitutional jurisdiction question prior to hearing the balance of the jurisdictional and natural justice issues; and (c) in dismissing the petition in part on the basis of futility and in part on the merits of the case without allowing the appellants to be heard.

The British Columbia Court of Appeal dismissed the appeal.

Administrative Law - Topic 2100

Natural justice - Constitution of board or tribunal (considerations incl. bias) - Practice and remedies - Four garbage truck drivers filed complaints alleging they were not paid overtime in accordance with the Employment Standards Act (ESA) - The appellants contended that the drivers were employed by a federally regulated enterprise and the ESA did not apply to them - A delegate of the Director of Employment Standards decided that the matter was provincial, not federal - That decision was affirmed on appeal to the Employment Standards Tribunal - The Tribunal also rejected the appellants' complaint that the decision maker was biased and had committed other breaches of natural justice - The appellants petitioned for judicial review - The reviewing judge ruled that the Tribunal did not err in finding that the drivers' employment fell under provincial jurisdiction - The reviewing judge dismissed the claim for the relief sought, including remitting the complaints related to bias and other natural justice grounds to the Director - The reviewing judge held that since he had decided the constitutional question conclusively and there was no issue that the complainants, if covered by the ESA, were entitled to the overtime calculated, it would be futile to send the matter back to the Director - The appellants appealed, arguing that the futility doctrine did not apply to the allegations of bias - The British Columbia Court of Appeal dismissed the appeal - Bias was alleged only against the Director, not the Tribunal - The appellants had received a second look at their case by an unbiased adjudicator - That provided a full answer to the policy argument that regardless of the apparent futility in sending the matter back to the Director, the demands of justice required such an order - That goal was achieved by the internal remedy, namely, the appeal to the Tribunal - See paragraphs 46 to 63.

Administrative Law - Topic 2528

Natural justice - Effect of denial of - Errors which may be remedied on appeal or review - [See Administrative Law - Topic 2100 ].

Administrative Law - Topic 2668

Natural justice - Denial - Remedies - Remittal of award or decision - [See Administrative Law - Topic 2100 ].

Administrative Law - Topic 3345.1

Judicial review - General - Practice - Evidence (incl. new evidence) - Four garbage truck drivers filed complaints under the Employment Standards Act (ESA) - The appellants contended that the drivers were employed by a federally regulated enterprise and the ESA did not apply to them - The Employment Standards Tribunal affirmed that the matter was provincial, not federal - The appellants petitioned for judicial review - By consent, the reviewing judge received "new evidence" and determined the jurisdictional question de novo - The reviewing judge ruled that the Tribunal did not err in finding that the drivers' employment fell under provincial jurisdiction - The appellants appealed - The British Columbia Court of Appeal stated that the irregular nature of the process tended to confound the principles of appellate review - The court stated that "The reviewing court usurps the role of the tribunal when it embarks upon a de novo hearing. The procedure adopted here was wrong and should not be repeated. Regardless of the irregularity, I think we should go on to decide the merits of the appeal, rather than to send the judicial review back" - The court stated that it would examine the judge's decision for correctness on the law and for reasonableness on the facts - See paragraphs 19 to 25.

Administrative Law - Topic 3353.1

Judicial review - General - Practice - Bifurcation of judicial review application - The appellants appealed from the decisions of a reviewing judge rendered on their petition for judicial review of a decision of the Employment Standards Tribunal - The appellants argued that the reviewing judge erred in splitting the proceedings and thereby deciding a constitutional jurisdiction question prior to hearing the balance of the jurisdictional and natural justice issues - The British Columbia Court of Appeal stated that "The judge's decision to split the hearing was within his discretion and has not been shown to be clearly wrong. It was consistent with the general practice of dealing with jurisdictional questions first, and it had the potential of avoiding a prolonged (and inappropriate) evidentiary hearing" - See paragraphs 43 to 45.

Administrative Law - Topic 9122

Boards and tribunals - Administrative appeals - Scope of appeal or standard of review - [See Administrative Law - Topic 3345.1 ].

Constitutional Law - Topic 6687

Federal jurisdiction (s. 91) - Federal works and undertakings - Ancillary powers - Labour standards - [See all Constitutional Law - Topic 7290 ].

Constitutional Law - Topic 7290

Provincial jurisdiction (s. 92) - Property and civil rights - Regulatory statutes - Labour standards - Four garbage truck drivers filed complaints alleging they were not paid overtime in accordance with the Employment Standards Act (ESA) - The complainants drove Super Save Disposal Inc. trucks solely within British Columbia - A related company, Actton Transport Ltd., supplied labour and services to Super Save, including drivers - Actton operated an interprovincial and international trucking business - Actton and Super Save (the appellants) contended that as the drivers were employed by Actton, a federally regulated enterprise, the ESA did not apply to them and the Director of Employment Standards had no jurisdiction - The Employment Standards Tribunal affirmed that the matter was provincial, not federal - The appellants petitioned for judicial review - The reviewing judge ruled that the Tribunal did not err in finding that the drivers' employment fell under provincial jurisdiction - The appellants appealed, arguing that the reviewing judge failed to determine whether Actton was a single federal work or undertaking, and proceeded on the assumption it had two separate businesses - The British Columbia Court of Appeal stated that "The facts are compelling that Super Save's operations are disconnected from any interprovincial activity conducted by Actton. It follows that when Actton supplies labour and services to Super Save, it is not engaging in interprovincial trucking. The judge did not simply assume two undertakings; he recognized the obvious" - See paragraph 29.

Constitutional Law - Topic 7290

Provincial jurisdiction (s. 92) - Property and civil rights - Regulatory statutes - Labour standards - Four garbage truck drivers filed complaints alleging they were not paid overtime in accordance with the Employment Standards Act (ESA) - The complainants drove Super Save Disposal Inc. trucks solely within British Columbia - A related company, Actton Transport Ltd., supplied labour and services to Super Save, including drivers - Actton operated an interprovincial and international trucking business - Actton and Super Save (the appellants) contended that as the drivers were employed by Actton, a federally regulated enterprise, the ESA did not apply to them and the Director of Employment Standards had no jurisdiction - The Employment Standards Tribunal affirmed that the matter was provincial, not federal - The appellants petitioned for judicial review - The reviewing judge ruled that the Tribunal did not err in finding that the drivers' employment fell under provincial jurisdiction - The appellants appealed, arguing that the reviewing judge's ruling ignored the unique constitutional nature of truck and transportation operations - The British Columbia Court of Appeal dismissed the appeal - The court stated that "There is nothing about the deployment of labour and services to Super Save that connects it with Actton's interprovincial activity so as to make it part of a single undertaking" - See paragraphs 31 to 35.

Constitutional Law - Topic 7290

Provincial jurisdiction (s. 92) - Property and civil rights - Regulatory statutes - Labour standards - Four garbage truck drivers filed complaints alleging they were not paid overtime in accordance with the Employment Standards Act (ESA) - The complainants drove Super Save Disposal Inc. trucks solely within British Columbia - A related company, Actton Transport Ltd., supplied labour and services to Super Save, including drivers - Actton operated an interprovincial and international trucking business - Actton and Super Save (the appellants) contended that as the drivers were employed by Actton, a federally regulated enterprise, the ESA did not apply to them and the Director of Employment Standards had no jurisdiction - The Employment Standards Tribunal affirmed that the matter was provincial, not federal - The appellants petitioned for judicial review - The reviewing judge ruled that the Tribunal did not err in finding that the drivers' employment fell under provincial jurisdiction - The appellants appealed - They argued that dividing the jurisdiction of Actton's employees created confusion and uncertainty and interfered with Actton's choice of business model - The British Columbia Court of Appeal stated that "The answer to this contention is that it is the Constitution which determines jurisdiction, not the style of the business organization or its convenience. If Actton chooses to operate in both jurisdictions, it will have to accommodate both labour and employment schemes" - See paragraph 37.

Constitutional Law - Topic 7290

Provincial jurisdiction (s. 92) - Property and civil rights - Regulatory statutes - Labour standards - Four garbage truck drivers filed complaints alleging they were not paid overtime in accordance with the Employment Standards Act (ESA) - The complainants drove Super Save Disposal Inc. trucks solely within British Columbia - A related company, Actton Transport Ltd., supplied labour and services to Super Save, including drivers - Actton operated an interprovincial and international trucking business - Actton and Super Save (the appellants) contended that as the drivers were employed by Actton, a federally regulated enterprise, the ESA did not apply to them and the Director of Employment Standards had no jurisdiction - The Employment Standards Tribunal affirmed that the matter was provincial, not federal - The appellants petitioned for judicial review - The reviewing judge ruled that the Tribunal did not err in finding that the drivers' employment fell under provincial jurisdiction - The appellants appealed, arguing that the reviewing judge's finding of no functional integration was wrong - The British Columbia Court of Appeal dismissed the appeal - The reviewing judge identified the test for functional integration by reference to the leading authority - He asked the right question and arrived at the correct answer - Nothing in the record established that supplying labour and services to the local garbage business was vital to the interprovincial trucking business - See paragraphs 39 to 42.

Master and Servant - Topic 8322

Employment and labour standards - Enforcement - Jurisdiction - [See all Constitutional Law - Topic 7290 ].

Master and Servant - Topic 8585

Employment and labour standards - Practice - Natural justice - [See Administrative Law - Topic 2100 ].

Cases Noticed:

Montcalm Construction Inc. v. Minimum Wage Commission et al., [1979] 1 S.C.R. 754; 25 N.R. 1; 93 D.L.R.(3d) 641, refd to. [para. 16].

Westcoast Energy Inc. v. National Energy Board et al., [1998] 1 S.C.R. 322; 223 N.R. 241; 156 D.L.R.(4th) 456, refd to. [para. 16].

Consolidated Fastfrate Inc. v. Western Canada Council of Teamsters et al. (2007), 412 A.R. 97; 404 W.A.C. 97; 285 D.L.R.(4th) 137; 2007 ABCA 198, revd. [2009] 3 S.C.R. 407; 395 N.R. 276; 469 A.R. 50; 470 W.A.C. 50; 2009 SCC 53, refd to. [paras. 25, 32].

Ottawa-Carleton Regional Transit Commission v. Amalgamated Transit Union, Local 279 et al. (1983), 1 O.A.C. 177; 4 D.L.R.(4th) 452; 44 O.R.(2d) 560 (C.A.), refd to. [para. 32].

Pacific Produce Delivery and Warehouses Ltd. and Retail, Wholesale and Department Store Union, Local No. 580, Re, [1974] 3 W.W.R. 389; 44 D.L.R.(3d) 130 (B.C.C.A.), refd to. [para. 32].

R. v. Toronto Magistrates; Ex parte Tank Truck Transport Ltd. (1960), 25 D.L.R.(2d) 161 (Ont. H.C.), affd. [1963] 1 O.R. 272 (C.A.), refd to. [para. 32].

R. v. Cooksville Magistrate's Court; Ex parte Liquid Cargo Lines Ltd., [1965] 1 O.R. 84 (H.C.), refd to. [para. 32].

Compleat Holdings Ltd. et al. v. Director of Employment Standards (B.C.) (1992), 18 B.C.A.C. 247; 31 W.A.C. 247; 96 D.L.R.(4th) 524; 72 B.C.L.R.(2d) 320 (C.A.), refd to. [para. 32].

Ontario (Attorney General) v. Winner, [1954] A.C. 541; [1954] 4 D.L.R. 657 (P.C.), refd to. [para. 33].

Canadian Pacific Railway Co. v. British Columbia (Attorney General), [1950] A.C. 122; [1950] 1 D.L.R. 721 (P.C.), refd to. [para. 34].

Ontario Hydro v. Labour Relations Board (Ont.) et al., [1993] 3 S.C.R. 327; 158 N.R. 161; 66 O.A.C. 241, refd to. [para. 37].

Nor-Min Supplies Ltd. et al. v. Canadian National Railway Co., [1977] 1 S.C.R. 322; 7 N.R. 603, refd to. [para. 38].

Mobil Oil Canada Ltd. et al. v. Canada-Newfoundland Offshore Petroleum Board, [1994] 1 S.C.R. 202; 163 N.R. 27; 115 Nfld. & P.E.I.R. 334; 360 A.P.R. 334; 111 D.L.R.(4th) 1, consd. [para. 46].

Newfoundland Telephone Co. v. Board of Commissioners of Public Utilities (Nfld.), [1992] 1 S.C.R. 623; 134 N.R. 241; 95 Nfld. & P.E.I.R. 271; 301 A.P.R. 271; 89 D.L.R.(4th) 289, consd. [para. 50].

Lurette v. New Brunswick (Minister of Education) (2003), 265 N.B.R.(2d) 260; 695 A.P.R. 260; 2003 NBQB 343 (T.D.), refd to. [para. 52].

Yassine v. Minister of Employment and Immigration (1994), 172 N.R. 308; 27 Imm. L.R.(2d) 135 (F.C.A.), refd to. [para. 52].

Patel v. Canada (Minister of Citizenship and Immigration) (2002), 288 N.R. 48; 23 Imm. L.R.(3d) 161; 2002 FCA 55, refd to. [para. 52].

Harelkin v. University of Regina, [1979] 2 S.C.R. 561; 26 N.R. 364; 96 D.L.R.(3d) 14, refd to. [para. 56].

Histed v. Law Society of Manitoba (2006), 208 Man.R.(2d) 44; 383 W.A.C. 44; 274 D.L.R.(4th) 326; 2006 MBCA 89, refd to. [para. 58].

Merchant v. Law Society of Alberta, [2009] 2 W.W.R. 54; 440 A.R. 377; 438 W.A.C. 377; 2008 ABCA 363, leave to appeal denied (2009), 396 N.R. 398; 474 A.R. 402; 479 W.A.C. 402 (S.C.C.), refd to. [para. 61].

Counsel:

M.J. Weiler, J.R. Kitsul and E.A. Reid, for the appellants;

G.H. Copley, Q.C., and R.M. Butler, for the respondents, Director of Employment Standards and Attorney General of British Columbia;

E.F. Miller, for the respondent, Employment Standards Tribunal.

This appeal was heard on April 19 to 21, 2010, at Vancouver, B.C., before Donald, Chiasson and Neilson, JJ.A., of the British Columbia Court of Appeal. The following judgment of the Court of Appeal was delivered by Donald, J.A., on June 2, 2010.