Zinkovic v. Botelho (John) Construction Co., (1980) 6 Man.R.(2d) 123 (CoCt)

• Court: Provincial Court of Manitoba (Canada)
• Case Date: May 29, 1980
• Jurisdiction: Manitoba
• Citations: (1980), 6 Man.R.(2d) 123 (CoCt)

Zinkovic v. Botelho Constr. Co. (1980), 6 Man.R.(2d) 123 (CoCt)

MLB headnote and full text

Zinkovic v. John Botelho Construction Co. Ltd.

Indexed As: Zinkovic v. Botelho (John) Construction Co.

Manitoba County Court

Jewers, C.C.J.

May 29, 1980.

Summary:

This headnote contains no summary.

Evidence - Topic 2515

Presumptions - Regularity - Presumption of capacity of public official - An order of the Director of the Employment Standards Division, Department of Labour and Manpower, was signed by "A. Beattie for Director" - There was no evidence respecting the authority of Beattie to sign for the Director or whether Beattie was even an employee of the Department at the relevant time - The Manitoba County Court held that Beattie was duly authorized to sign the order for the Director and that the order was valid, applying the presumption of regularity of the signing of the order - See paragraphs 4 to 14.

Master and Servant - Topic 303

Nature of relationship - Employer-employee relationship - What constitutes - A man claimed vacation and holiday pay from an employer under the Payment of Wages Act, C.C.S.M., c. P-15 - The employer denied liability on the ground that the man was not an employee, but an independent contractor - The man was hired on a job basis to perform certain functions in the installation of sewer and water pipes - Over a period of almost two years the man worked almost exclusively for the employer for no set compensation - All of the tools and equipment necessary to do the work were supplied by the employer and the employer controlled the performance of the work, including hours of work - Further, he was performing work which was an integral part of the employer's business - The Manitoba County Court held that the man was an employee and not an independent contractor and was entitled to vacation and holiday pay - See paragraphs 15 to 26.

Cases Noticed:

Ali v. The Minister of Manpower and Immigration (1975), 11 N.R. 617, appld. [para. 14].

Montreal v. Montreal Locomotive Workers Ltd., [1946] 3 W.W.R. 748, appld. [para. 22].

Armstrong v. Mac's Milk Ltd., 7 O.R.(2d) 478, appld. [para. 23].

Stevenson Jordan and Harrison Ltd. v. Macdonald and Evans, [1952] 1 T.L.R. 101, appld. [para. 25].

Statutes Noticed:

Employment Standards Act, S.M. 1957, sect. 20(2)(1)(1) [para. 20].

Payment of Wages Act, C.C.S.M., c. P-15, sect. 22 [para. 9].

Authors and Works Noticed:

Halsbury's Laws of England (3rd Ed.), vol. 25, p. 450 [para. 21].

Counsel:

M.J. Smith, for the appellant;

M. Newman, for the respondent.

This case was heard at Winnipeg, Manitoba, before JEWERS, C.C.J., of the Manitoba County Court, who delivered the following judgment on May 29, 1980: