Ridke v. Coulson Aircrane Ltd., (2013) 443 F.T.R. 161 (FC)

• Judge: Russell, J.
• Court: Federal Court (Canada)
• Case Date: July 10, 2013
• Jurisdiction: Canada (Federal)
• Citations: (2013), 443 F.T.R. 161 (FC);2013 FC 1183

Ridke v. Coulson Aircrane Ltd. (2013), 443 F.T.R. 161 (FC)

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [2013] F.T.R. TBEd. NO.043

Klause Ridke (applicant) v. Coulson Aircrane Ltd. (respondent)

(T-1785-12; 2013 FC 1183; 2013 CF 1183)

Indexed As: Ridke v. Coulson Aircrane Ltd.

Federal Court

Russell, J.

November 25, 2013.

Summary:

Ridke made a complaint to Human Resources and Skills Development Canada (HRSDC), claiming payment for unpaid overtime under Part III of the Canada Labour Code, for a retroactive period of 72 months. He submitted payroll records showing unpaid overtime for various periods in 2008 to 2011, inclusive. An Inspector restricted payment of overtime to a retroactive period of 12 months, based on an HRSDC Complaint Handling Directive (Policy). Ridke applied for judicial review.

The Federal Court allowed the application. Attempts in the Policy to place time limitations upon the right to be paid overtime were ultra vires and void. The Inspector's decision was fundamentally flawed because it was based on limitations and considerations that were contrary to the Code, and that were applied in an unreasonable way. The Court quashed the decision and returned the matter for reconsideration by a different HRSDC inspector.

Administrative Law - Topic 3205.1

Judicial review - General - Policy statements - [See Master and Servant - Topic 8544 ].

Administrative Law - Topic 3302

Judicial review - Bars - Alternate remedy - The applicant sought judicial review of the decision of an Inspector, Human Resources and Skills Development Canada, to restrict payment of overtime to the applicant to a retroactive period of 12 months - The respondent submitted that the court should refuse to hear the application because the applicant had an adequate remedy under s. 251.11 of the Canada Labour Code - Section 251.11(1) provided that: "A person who is affected by a payment order or a notice of unfounded complaint may appeal the inspector's decision to the Minister ..." - The Federal Court rejected the argument - The respondent was inviting the court to read s. 251.11 as granting a right of appeal on any decision made by an Inspector - If Parliament had intended such a result, it would have said so - There was no rule of statutory interpretation and no authority to suggest that the court should disregard the plain wording of s. 251.11 - See paragraphs 77 to 86.

Administrative Law - Topic 3303

Judicial review - General - Bars - Appeal or review available - The applicant sought judicial review of the decision of an Inspector, Human Resources and Skills Development Canada, to restrict the payment of overtime to the applicant to a retroactive period of 12 months - The respondent submitted that the court should refuse to hear the application on policy grounds in that it allowed an applicant "to circumvent an expert appeal body specifically created to deal with matters requiring expertise because it creates or has the potential to create duplication and inconsistency." - The Federal Court stated that "the Court cannot avoid the wording of the statute simply because one of the parties to a dispute believes it would be better to do things in a different way. The Respondent's reasoning, in any event, is fallacious. The Court is not deciding the Applicant's entitlement. It is simply deciding whether a reviewable error has occurred in the present case that requires reconsideration by the expert system set up under the Code. ... There is nothing in the Code to prevent the Applicant from exercising his rights to judicial review under the Federal Courts Act, and there is nothing to suggest that the Applicant had any other recourse available to him under the Code. Indeed, the very people who the Respondent says are the experts in applying the Code told him he had no rights of appeal." - See paragraphs 87 to 91.

Courts - Topic 4058

Federal Court of Canada - Jurisdiction - Federal Court - Canada Labour Code - [See Administrative Law - Topic 3303 ].

Crown - Topic 666

Authority of Ministers - Interpretation of legislation (incl. standard of review of ministerial interpretation) - [See Master and Servant - Topic 8344.2 ].

Crown - Topic 683

Authority of Ministers - Exercise of - Policy statements - Judicial review - [See Master and Servant - Topic 8544 ].

Crown - Topic 685

Authority of Ministers - Exercise of - Administrative or policy decisions - Appeals or judicial review - [See Administrative Law - Topic 3303 ].

Master and Servant - Topic 1857

Remuneration - Statutory regulation - Overtime wages - [See Master and Servant - Topic 8544 ].

Master and Servant - Topic 1921

Remuneration - Overtime - General - [See Master and Servant - Topic 8544 ].

Master and Servant - Topic 8344.2

Employment and labour standards - Jurisdiction and powers of director, tribunal, referees or officers - Judicial review - Standard of review - A Human Resources and Skills Development Canada (HRSDC) Inspector restricted payment of overtime to the applicant to a retroactive period of 12 months - The decision was based upon an HRSDC Complaint Handling Directive (Policy) - On judicial review, the applicant raised the issues of whether the Policy was contrary to the Canada Labour Code, and whether the Policy was ultra vires the statutory grant of power afforded to the HRSDC and its inspectors - The Federal Court held that those issues raised questions of law, and concluded that the precedents indicated that correctness was the appropriate standard of review - "I have not been referred to any authorities that directly address the standard of review applicable to decisions of inspectors under the Code on questions of law, or to policy directives issued by an Assistant Deputy Minister of HRSDC that relate to the implementation of the Code. However, there is a more general body of jurisprudence that, in my view, resolves the question of the standard of review in a satisfactory manner" - The court's view was confirmed by an analysis of the standard of review factors from New Brunswick (Board of Management) v. Dunsmuir (2008) (S.C.C.) - See paragraphs 18 to 31.

Master and Servant - Topic 8544

Employment and labour standards - Liability of employer - Overtime pay - A Human Resources and Skills Development Canada (HRSDC) Inspector restricted the payment of overtime to the applicant to a retroactive period of 12 months - The decision was based upon an HRSDC Complaint Handling Directive (Policy) - On judicial review, the applicant submitted that the Policy eliminated a right granted by the Canada Labour Code and was thus contrary to its enabling statute; and that no statutory authority existed granting the HRSDC the power to create the limit imposed by the Policy - The Federal Court allowed the application - "[I]n so far as the policy purports to abrogate or curtail the substantive rights bestowed upon employees by the Code, it is ultra vires and invalid. This is because those substantive rights are granted by Parliament, and they can only be taken away or modified to the extent, and in the way, that Parliament itself has authorized." - The Code contained no limitation for a claim of unpaid overtime - The statutory requirement that employers keep records for a period of a minimum of 36 months did not suggest that employees were disentitled to overtime beyond 36 months where entitlement could be proven - The decision was fundamentally flawed because it was based on limitations and considerations that were contrary to the Code, and that were applied in an unreasonable way - The court returned the matter for reconsideration by a different HRSDC inspector in accordance with the Court's reasons - See paragraphs 92 to 109.

Statutes - Topic 502

Interpretation - General principles - Intention of Parliament or legislature - [See Administrative Law - Topic 3302 ].

Statutes - Topic 1201

Interpretation - Construction where meaning is plain - General principles - [See Administrative Law - Topic 3302 ].

Cases Noticed:

New Brunswick (Board of Management) v. Dunsmuir, [2008] 1 S.C.R. 190; 372 N.R. 1; 329 N.B.R.(2d) 1; 844 A.P.R. 1; 2008 SCC 9, refd to. [para. 17].

Agraira v. Canada (Minister of Public Safety and Emergency Preparedness) et al. (2013), 446 N.R. 65; 2013 SCC 36, refd to. [para. 17].

Miller v. Canada (Minister of Labour) et al. (2012), 411 F.T.R. 1; 2012 FC 136, refd to. [para. 20].

Ocean Steel & Construction Ltd. v. Arsenault et al. (2011), 397 F.T.R. 10; 2011 FC 637, refd to. [para. 20].

Dynamex Canada Inc. v. Mamona et al. (2003), 305 N.R. 295; 2003 FCA 248, refd to. [para. 21].

Crouse v. Commissionaires Nova Scotia (2011), 383 F.T.R. 277; 2011 FC 125, affd. (2012), 428 N.R. 377; 2012 FCA 4, refd to. [para. 21].

Alberta Teachers' Association v. Information and Privacy Commissioner (Alta.) et al. (2011), 424 N.R. 70; 519 A.R. 1; 539 W.A.C. 1; 2011 SCC 61, refd to. [para. 22].

Doré v. Barreau du Québec (2012), 428 N.R. 146; 2012 SCC 12, refd to. [para. 22].

Canadian Union of Public Employees, Local 963 v. New Brunswick Liquor Corp., [1979] 2 S.C.R. 227; 26 N.R. 341; 25 N.B.R.(2d) 237; 51 A.P.R. 237, refd to. [para. 23].

Canada (Minister of Fisheries and Oceans) v. David Suzuki Foundation - see Georgia Strait Alliance et al. v. Canada (Minister of Fisheries and Oceans) et al.

Georgia Strait Alliance et al. v. Canada (Minister of Fisheries and Oceans) et al. (2012), 427 N.R. 110; 2012 FCA 40, refd to. [para. 26].

Public Mobile Inc. v. Canada (Attorney General) et al. (2011), 420 N.R. 50; 2011 FCA 194, refd to. [para. 26].

Toussaint v. Canada (Attorney General) (2011), 420 N.R. 364; 2011 FCA 213, refd to. [para. 26].

Pezim v. British Columbia Securities Commission et al., [1994] 2 S.C.R. 557; 168 N.R. 321; 46 B.C.A.C. 1; 75 W.A.C. 1, refd to. [para. 27].

Takeda Canada Inc. v. Canada (Minister of Health) et al. (2013), 440 N.R. 346; 2013 FCA 13, refd to. [para. 28].

Sheldon Inwentash and Lynn Factor Charitable Foundation v. Minister of National Revenue (2012), 432 N.R. 338; 2012 FCA 136, refd to. [para. 28].

Bartlett v. Canada (Attorney General) (2012), 434 N.R. 241; 2012 FCA 230, refd to. [para. 28].

Attawapiskat First Nation v. Canada (Minister of Aboriginal Affairs and North Development) (2012), 416 F.T.R. 172; 2012 FC 948, refd to. [para. 28].

Kandola v. Canada (Minister of Citizenship and Immigration) (2013), 430 F.T.R. 101; 2013 FC 336, refd to. [para. 28].

UHA Research Society et al. v. Canada (Attorney General) et al. 2013), 428 F.T.R. 87; 2013 FC 169, refd to. [para. 28].

Prescient Foundation v. Minister of National Revenue (2013), 444 N.R. 234; 2013 FCA 120, refd to. [para. 28].

Lau v. Canada (Minister of Public Safety and Emergency Preparedness) (2012), 412 F.T.R. 307; 2012 FC 788, refd to. [para. 28].

Delaware Nation v. Logan et al., [2005] F.T.R. Uned. B60; 2005 FC 1702, refd to. [para. 32].

Khosa v. Canada (Minister of Citizenship and Immigration) (2009), 385 N.R. 206; 2009 SCC 12, refd to. [para. 33].

Nunavut Tunngavik Inc. v. Canada (Attorney General) (2004), 245 F.T.R. 42; 2004 FC 85, refd to. [para. 41].

Bilbie v. Lumley (1802), 102 E.R. 448, refd to. [para. 42].

Makhija v. Canada (Attorney General) (2010), 414 N.R. 158; 2010 FCA 342, refd to. [para. 42].

Skyline Roofing Ltd. v. Workers' Compensation Board (Alta.) et al. (2001), 292 A.R. 86; 2001 ABQB 624, refd to. [para. 52].

Jozipovic v. Workers' Compensation Appeal Tribunal (B.C.) et al. (2012), 320 B.C.A.C. 114; 543 W.A.C. 114; 2012 BCCA 174, refd to. [para. 54].

Federated Anti-Poverty Groups of B.C. v. British Columbia (Minister of Social Services) et al., [1996] B.C.T.C. Uned. F47; 41 Admin. L.R.(2d) 158 (S.C.), refd to. [para. 55].

Grace v. British Columbia et al., [2000] B.C.T.C. 390; 2000 BCSC 923, refd to. [para. 55].

Bellefleur v. Diffusion Laval Inc. (2012), 405 F.T.R. 47; 2012 FC 172, refd to. [para. 69].

Canada (Procureur général) v. Autocar Connaisseur Inc. (1997), 144 F.T.R. 171 (T.D.), refd to. [para 69].

Milne v Engleheim Charter, [2003] C.L.A.D. No. 298, refd to. [paras. 70, 84].

R. v. Consolidated Maybrun Mines Ltd. et al., [1998] 1 S.C.R. 706; 225 N.R. 41; 108 O.A.C. 161, refd to. [para. 71].

Rudowski v. Canada (Human Resource Development), [2000] N.R. Uned. 190 (F.C.A.), refd to. [para. 71].

R.J. Lacroix Transportation & Equipment Sales Inc. v. Beatty, [1998] C.L.A.D. No. 456; 40 C.C.E.L.(2d) 234, refd to. [paras. 74, 84].

Skyward Aviation Ltd. v. Walker, [2005] C.L.A.D. No. 176, refd to. [para. 75].

Lac La Ronge Indian Band v. Bird, [2001] C.L.A.D. No. 491, refd to. [para. 75].

942260 Ontario Ltd. v. Press, [2004] F.T.R. Uned. 802; 2004 FC 1384, refd to. [para. 101].

Statutes Noticed:

Canada Labour Code, R.S.C. 1985, c. L-2, sect. 168(1) [para. 15]; sect. 251.11(1) [para. 78].

Counsel:

Cameron R. Wardell, for the applicant;

Marylee Davies, for the respondent.

Solicitors of Record:

Harris & Company LLP, Vancouver, British Columbia, for the applicant;

Farris Vaughan Wills & Murphy, Vancouver, British Columbia, for the respondent.

This application for judicial review was heard at Vancouver, British Columbia, on July 10, 2013, before Russell, J., of the Federal Court, who delivered the following reasons for judgment and judgment, dated November 25, 2013, at Ottawa, Ontario.