Balzer v. Federated Co-operatives Ltd. et al., (2014) 437 Sask.R. 10 (QB)

• Judge: Laing, J.
• Court: Court of Queen's Bench of Saskatchewan (Canada)
• Case Date: January 28, 2014
• Jurisdiction: Saskatchewan
• Citations: (2014), 437 Sask.R. 10 (QB);2014 SKQB 32

Balzer v. Federated Co-op Ltd. (2014), 437 Sask.R. 10 (QB)

MLB headnote and full text

Temp. Cite: [2014] Sask.R. TBEd. FE.045

Leonard Balzer (plaintiff) v. Federated Co-operatives Limited, Kenneth John McKechney and Wayne Gust (defendants)

(2003 Q.B.G. No. 1237; 2014 SKQB 32)

Indexed As: Balzer v. Federated Co-operatives Ltd. et al.

Saskatchewan Court of Queen's Bench

Judicial Centre of Saskatoon

Laing, J.

January 28, 2014.

Summary:

The plaintiff's employment as the propane coordinator for the defendant was terminated without notice. His actions both before and after the escape of propane were the reasons offered for his termination. The plaintiff sued, alleging wrongful dismissal. The two individuals named as defendants were employed as managers in the propane department, and it was alleged that they defamed the plaintiff in their comments to members of the community following the event. The plaintiff also advanced a claim for unpaid overtime. The plaintiff's position was that his judgment was impaired by the inhalation of propane vapour.

The Saskatchewan Court of Queen's Bench dismissed the action for wrongful termination and for slander. The plaintiff qualified for overtime pay.

Master and Servant - Topic 1857

Remuneration - Statutory regulation - Overtime wages - The plaintiff claimed for unpaid overtime pursuant to s. 6 of the Labour Standards Act (Sask.) - His job was to take orders for propane, deliver the propane and collect the accounts receivable - The defendant's position was that the plaintiff was in a management position and, therefore, did not qualify for overtime pay, pursuant to s. 4(2) of the Act - The Saskatchewan Court of Queen's Bench held that the plaintiff qualified for overtime pay - The plaintiff's employment as propane co-ordinator was not one of an employee who performed services of an entirely managerial character - He was a remote employee (remote from his immediate supervisor), who performed very little, if any, management functions - He was an operational employee, not an administrative one - He was to follow the employer's policy - The only discretion he had was with respect to the routing for the deliveries of propane - He was required to file reports - The result was that the court considered the overtime claim on its merits - Some of the overtime hours recorded (estimated to be 20%) could have been postponed to a later working day and, to that extent, were not all "necessary" - See paragraphs 75 to 92.

Master and Servant - Topic 1922

Remuneration - Overtime - Entitlement - [See Master and Servant - Topic 1857 ].

Master and Servant - Topic 1924

Remuneration - Overtime - Calculation of - The plaintiff claimed for unpaid overtime pursuant to s. 6 of the Labour Standards Act (Sask.) - The defendant employer did not take issue with the plaintiff's calculation of the value of the overtime hours he recorded or his methodology to arrive at the same - The Saskatchewan Court of Queen's Bench accepted the methodology, although it differed from the methodology in s. 6 of the Labour Standards Act - However, the court did not conclude it was more generous - The dollar amount of the overtime that was statute barred was deducted from the original claim - In the end result, the court awarded judgment in the amount of 80% of the eligible claim - See paragraph 93.

Master and Servant - Topic 7552

Dismissal of employees - Grounds - Neglect or failure to discharge duties - The plaintiff's employment as the propane coordinator for the defendant was terminated without notice - His actions both before and after the escape of propane were the reasons offered for his termination - The plaintiff alleged wrongful dismissal - The reasonable excuse advanced by the plaintiff was that his memory and judgment were adversely affected by his inhalation of propane vapour - The Saskatchewan Court of Queen's Bench held that the defendant had just cause to terminate the plaintiff's employment - The dismissal was for a very serious breach of a major rule - The plaintiff failed to observe regulations for safety, equipment operation, accident prevention and fire prevention - The rule in question was distributed to the plaintiff in the discipline policy document which warned that termination could result for a major rule violation - Bearing in mind the dangerous goods business of distributing propane, the rule was reasonable - The plaintiff had no reasonable excuse for his breaches of safety policy following the event - There was no objective evidence that he experienced any of the physiological symptoms of propane inhalation - The defendant's inability to trust the plaintiff going forward to behave appropriately in an emergency was sufficient to sever the employment relationship - See paragraphs 61 to 72.

Master and Servant - Topic 8544

Employment and labour standards - Liability of employer - Overtime pay - [See Master and Servant - Topic 1857 ].

Cases Noticed:

Holloway v. Encor Energy Corp. (1991), 93 Sask.R. 226; 4 W.A.C. 226 (C.A.), refd to. [para. 58].

McKinley v. BC Tel et al., [2001] 2 S.C.R. 161; 271 N.R. 16; 153 B.C.A.C. 161; 251 W.A.C. 161; 2001 SCC 38, refd to. [para. 59].

Dowling v. Workplace Safety and Insurance Board (Ont.) (2004), 192 O.A.C. 126; 246 D.L.R.(4th) 65 (C.A.), refd to. [para. 59].

Bonneville v. Unisource Canada Inc., [2002] 10 W.W.R. 509; 222 Sask.R. 107; 2002 SKQB 304, refd to. [para. 60].

Graf v. Saskatoon Soccer Centre Inc., [2005] 4 W.W.R. 522; 250 Sask.R. 161; 2004 SKQB 282, refd to. [para. 60].

Hancock v. Sobey's Stores Ltd. (1988), 70 Nfld. & P.E.I.R. 338; 215 A.P.R. 338 (Nfld. T.D.), refd to. [para. 61].

Wilson v. Champion Forest Products (Alberta) Ltd. (1988), 90 A.R. 338 (Q.B.), refd to. [para. 62].

Sims, Re; Tarsands Machine & Welding Co. (1975) Ltd. v. International Brotherhood of Electrical Workers, Local Union 424 (1979), 17 A.R. 141; 95 D.L.R.(3d) 375 (Q.B.), refd to. [para. 62].

Plester v. Polyone Canada Inc., [2011] O.T.C. Uned. 6068; 2011 ONSC 6068, refd to. [para. 62].

Kolodziejski v. Auto Electric Service Ltd., [1999] 10 W.W.R. 543; 177 Sask.R. 197; 199 W.A.C. 197; 174 D.L.R.(4th) 525 (C.A.), refd to. [para. 76].

Westfair Foods Ltd. v. Director of Labour Standards (Sask.) (1995), 136 Sask.R. 187 (Q.B.), refd to. [para. 77].

Elcan Forage Inc. v. Weiler (1992), 102 Sask.R. 197 (Q.B.), refd to. [para. 77].

Lefebvre v. HOJ Industries Ltd.; Machtinger v. HOJ Industries Ltd., [1992] 1 S.C.R. 986; 136 N.R. 40; 53 O.A.C. 200; 91 D.L.R.(4th) 491, refd to. [para. 77].

Hill v. Begg, [1987] S.J. No. 824 (Q.B.), refd to. [para. 77].

Canadian Imperial Bank of Commerce v. Torre (2010), 362 F.T.R. 232; 2010 FC 105, refd to. [para. 78].

Brown et al. v. Canadian Imperial Bank of Commerce et al., [2012] O.T.C. Uned. 2377; 2012 ONSC 2377, refd to. [para. 79].

McCracken v. Canadian National Railway Co., [2010] O.T.C. Uned. 4520; 2010 ONSC 4520, refd to. [para. 80].

Statutes Noticed:

Canada Labour Code, R.S.C. 1985, c. L-2, sect. 167(2)(a) [para. 78].

Labour Standards Act, R.S.S. 1978, c. L-1, sect. 4(2) [para. 77]; sect. 6 [para. 76].

Authors and Works Noticed:

Levitt, Howard A., The Law of Dismissal in Canada (1985), p. 103 [para. 61].

Counsel:

Robert L. Stevenson, for the plaintiff;

William P. Langen, for the defendants.

This action was heard before Laing, J., of the Saskatchewan Court of Queen's Bench, Judicial Centre of Saskatoon, who delivered the following judgment and reasons for judgment, dated January 28, 2014.