Whiterock Gas and Confectionary et al. v. Director of Labour Standards (Sask.), (2014) 455 Sask.R. 250 (QB)

• Judge: Chicoine, J.
• Court: Court of Queen's Bench of Saskatchewan (Canada)
• Case Date: September 16, 2014
• Jurisdiction: Saskatchewan
• Citations: (2014), 455 Sask.R. 250 (QB);2014 SKQB 300

Whiterock Gas v. Labour Standards (2014), 455 Sask.R. 250 (QB)

MLB headnote and full text

Temp. Cite: [2014] Sask.R. TBEd. OC.049

Whiterock Gas and Confectionary and Bernadette Thomas (also known as Bernadette Gopher) operating as Whiterock Gas and Confectionary (appellant) v. The Director of Labour Standards (on behalf of Trebor Swindler and Karen Andrew)

(respondent)

(2012 QB No. 2275; 2014 SKQB 300)

Indexed As: Whiterock Gas and Confectionary et al. v. Director of Labour Standards (Sask.)

Saskatchewan Court of Queen's Bench

Judicial Centre of Regina

Chicoine, J.

September 16, 2014.

Summary:

Swindler and Andrew were fired for alleged incompetence and dishonesty. They filed claims with the Director of Labour Standards. A Labour Standards Officer allowed the claims, making wage assessments in favour of both Swindler and Andrew. The employer appealed. An adjudicator dismissed the appeal. The employer appealed.

The Saskatchewan Court of Queen's Bench dismissed the appeal from the wage assessment in favour of Andrew and allowed the appeal from the wage assessment in favour of Swindler. That wage assessment was set aside.

Administrative Law - Topic 2145

Natural justice - Administrative decisions or findings - Failure to consider evidence - An employer appealed under s. 62.3(1) of the Labour Standards Act from an adjudicator's affirmation of a wage assessment made by a Labour Standards Officer in favour of an employee who had been fired for alleged dishonesty - The employer alleged that the employee had taken a pack of cigarettes without paying for it - The Saskatchewan Court of Queen's Bench allowed the appeal - The adjudicator erred in law in his decision not to view the contents of a dvd that was submitted into evidence by the employer and, instead, to have the employer describe what was on the dvd - The hearing before the adjudicator was in the nature of a trial de novo - There was no reason in law for him to refuse to view the dvd himself - The dvd corroborated the employer's testimony - The adjudicator's refusal to view it meant that he had ignored relevant evidence - A tribunal could not reasonably make a finding of fact in disregard of relevant evidence - Further, the evidence proved on a balance of probabilities that the employee had committed a serious act of dishonesty while employed as a supervisor - This was just cause for dismissal - The wage assessment in favour of the employee was set aside - See paragraphs 47 to 52.

Master and Servant - Topic 7550

Dismissal or discipline of employees - Grounds - Cause or just cause defined - [See Administrative Law - Topic 2145 and Master and Servant - Topic 7555 ].

Master and Servant - Topic 7555

Dismissal or discipline of employees - Grounds - Incompetency - An employer appealed under s. 62.3(1) of the Labour Standards Act from an adjudicator's affirmation of a wage assessment made by a Labour Standards Officer in favour of two employees who had been fired for alleged incompetence - The Saskatchewan Court of Queen's Bench dismissed the appeal - The adjudicator correctly applied the criteria set out in the case law to the effect that an employer had to show more than mere dissatisfaction with an employee's work - While both employees here had failed to comply with policies set out in the employer's manual, none of those incidents constituted just cause for dismissal in themselves - Further, the employer had not previously warned either employee - The employer failed to give suitable instructions to the employees to enable them to meet the expected standard - See paragraphs 41 to 43.

Master and Servant - Topic 7563

Dismissal or discipline of employees - Grounds - Dishonesty (incl. misrepresentations of qualifications) - [See Administrative Law - Topic 2145 ].

Master and Servant - Topic 7563

Dismissal or discipline of employees - Grounds - Dishonesty (incl. misrepresentations of qualifications) - An employer appealed under s. 62.3(1) of the Labour Standards Act from an adjudicator's affirmation of a wage assessment made by a Labour Standards Officer in favour of two employees who had been fired for alleged dishonesty - The employer alleged that the employees had put gas into their personal vehicles and had charged it improperly to the company account - The Saskatchewan Court of Queen's Bench dismissed the appeal - The employees were under the impression that they were allowed to charge gas to the company account - The fact that they recorded the pumping of gas into their vehicles in the company records suggested that they were not attempting to steal the gas - See paragraph 44.

Master and Servant - Topic 7608

Dismissal or discipline of employees - Defences - Waiver, condonation or warning of misconduct - [See Master and Servant - Topic 7555 ].

Master and Servant - Topic 8357

Employment and labour standards - Jurisdiction and powers of director, tribunal, referees or officers - Appeals (incl. leave to appeal) - An employer appealed under s. 62.3(1) of the Labour Standards Act from an adjudicator's affirmation of a wage assessment made by a Labour Standards Officer in favour of two employees who had been fired for alleged incompetence and dishonesty - The Saskatchewan Court of Queen's Bench discussed the standard of review - While the standard of review regarding the interpretation and application of the governing legislation was correctness, the standard might be different for other issues such as, here, whether the adjudicator erred in law in his decision to not review relevant evidence which was submitted to him in the course of the hearing, particularly evidence that made certain of his findings of fact untenable - The Act limited appeals to this court to questions of law or jurisdiction - However, findings of fact could be reviewable as questions of law where the findings were unreasonable in the sense that they ignored or mischaracterized relevant evidence, took into account irrelevant evidence or made irrational inferences on the facts - Here, the court applied the reasonableness standard to the adjudicator's findings of fact - See paragraphs 31 to 39.

Master and Servant - Topic 8408

Employment and labour standards - Layoff or dismissal - Grounds - [See Administrative Law - Topic 2145 ].

Master and Servant - Topic 8503

Employment and labour standards - Decisions of director, tribunal or officers - Appeals (incl. leave to appeal) - [See Master and Servant - Topic 8357 ].

Master and Servant - Topic 8583

Employment and labour standards - Practice - Evidence - [See Administrative Law - Topic 2145 ].

Master and Servant - Topic 8797

Dismissal - Practice - Evidence - Relevancy - [See Administrative Law - Topic 2145 ].

Cases Noticed:

Jasnoch v. Provincial Plating Ltd. (2000), 190 Sask.R. 250; 2000 SKQB 44, refd to. [para. 21].

Bogden v. Purolator Courier Ltd. (1996), 182 A.R. 216 (Q.B.), refd to. [para. 21].

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. 24].

Director of Labour Standards (Sask.) v. DJB Transportation Services Inc. et al. (2010), 350 Sask.R. 217; 487 W.A.C. 217; 2010 SKCA 50, affing. (2009), 327 Sask.R. 274; 2009 SKQB 24, refd to. [para. 32].

DJB Transportation Ltd. v. Bolen - see Director of Labour Standards (Sask.) v. DJB Transportation Services Inc. et al.

P.S.S. Professional Salon Services Inc. v. Human Rights Commission (Sask.) et al. (2007), 302 Sask.R. 161; 411 W.A.C. 161; 2007 SKCA 149, refd to. [para. 34].

Metropolitan Entertainment Group v. Workers' Compensation Appeals Tribunal (N.S.) et al. (2007), 252 N.S.R.(2d) 209; 804 A.P.R. 209; 278 D.L.R.(4th) 674; 2007 NSCA 30, refd to. [para. 35].

Bailey et al. v. Saskatchewan Registered Nurses' Association (1996), 142 Sask.R. 1 (Q.B.), refd to. [para. 53].

Counsel:

Anthony A. Tibbs; Tavengwa Runyowa and Iqbal Brar (Student-at-law), for the appellant;

Shannon A.C. Carson and Jeffrey G. Crawford (Student-at-law), for the respondent.

This appeal was heard by Chicoine, J., of the Saskatchewan Court of Queen's Bench, Judicial Centre of Regina, who delivered the following fiat on September 16, 2014.