Date: 20030908
Docket: T-1082-02
Citation: 2003 FC 1027
BETWEEN:
INSTINCT TRUCKING LTD.
Applicant
and
DON JACKNISKY and CANADA (MINISTER OF LABOUR)
Respondents
[1] The respondent Don Jacknisky was employed as a non-unionized truck driver by the applicant Instinct Trucking Ltd. He worked primarily in Edmonton and its surrounding area.
[2] In January 2001, Mr. Jacknisky made a claim for overtime wages under section 174 of the Canada Labour Code, R.S.C. 1985, c. L-2. An inspector, appointed under sections 249 and following of the Code, ruled in favour of Mr. Jacknisky and made a payment order against the applicant for the overtime wages. This decision was confirmed on appeal by a referee appointed under section 251.12 of the Code.
[3] In this application for judicial review of the referee's decision, the principal issue is whether Mr. Jacknisky is a "city motor vehicle operator" as defined in section 2 of the Motor Vehicle Operators Hours of Work Regulations, C.R.C. 1978, c.990, as amended. The inspector and the referee both concluded that he was.
[4] The relevant statutory provisions in this proceeding, including those under which the Regulations were made, are in Part III of the Canada Labour Code entitled Standard Hours, Wages, Vacations and Holidays.
The Parties' Positions
[5] The definition of "city motor vehicle operator" in section 2 of the Regulations reads as follows:
| "city motor vehicle operator" means a motor vehicle operator who operates exclusively within a 10-mile radius of his home terminal and is not a bus operator and includes any motor vehicle operator who is classified as a city motor vehicle operator in a collective agreement entered into between his employer and a trade union acting on his behalf or who is not classified in any such agreement but is considered to be a city motor vehicle operator according to the prevailing industry practice in the geographical area where he is employed; [emphasis added]
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« conducteur urbain de véhicule automobile » désigne un conducteur de véhicule automobile qui exerce son activité uniquement dans un rayon de 10 milles de son terminus d'attache et qui n'est pas un conducteur d'autobus, et comprend tout conducteur de véhicule automobile classé comme conducteur urbain de véhicule automobile dans une convention collective intervenue entre son employeur et un syndicat qui agit en son nom, ou tout conducteur qui n'est pas classé aux termes d'une convention de ce genre mais qui est censé être un conducteur urbain de véhicule automobile selon la pratique courante de l'industrie dans le secteur géographique où il est employé; [je souligne] |
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[6] The referee found it helpful to divide this definition into three parts as follows:
"city motor vehicle operator" means
a) a motor vehicle operator who operates exclusively within a 10-mile radius of his home terminal and is not a bus operator, or
b) a motor vehicle operator who is classified as a city motor vehicle operator in a collective agreement entered into between his employer and a trade union acting on his behalf, or
c) a motor vehicle operator who is not classified in any such agreement but is considered to be a city motor vehicle operator according to the prevailing industry practice in the geographical area where he is employed.
[7] All parties agree that Mr. Jacknisky did not operate exclusively within a 10-mile radius of his home terminal and could not come within the first part of the definition.
[8] Also, all parties agree that there is no collective agreement between the applicant Instinct Trucking and any trade union acting on Mr. Jacknisky's behalf. Accordingly, Mr. Jacknisky could not be a "city motor vehicle operator" within the meaning of the part (b) of the definition.
[9] In written submissions before the referee, the applicant argued that for the third part or part (c) of the definition "... to apply there must be a Collective Agreement, otherwise the words, 'who is not classified in any such agreement' have no meaning. The only logical meaning is that there must be a collective agreement in place but the person is performing work as a city motor vehicle operator then whether he is classified as such or not in the collective agreement he is a city motor vehicle operator." [Unedited and emphasis in the original version.]
[10] In his decision, the referee paraphrased the applicant's interpretation of the third part of the definition as follows:
... the final portion of the definition was designed to cover employee [sic] actually doing the work of a city motor vehicle operator but classified under a collective agreement as something other than a city motor vehicle operator. For example, a collective agreement may describe an employee as a "highway driver" or a "maintenance worker" but the employee may actually be doing the work of a city motor vehicle operator.
[11] In oral submissions in this proceeding, the applicant put forward substantially this same argument. Part (c) of the definition would find its application where a collective agreement existed under which an employee, such as Mr. Jacknisky, was classified as a "highway driver" or a "maintenance worker" but in fact did the work of a "city motor vehicle operator".
[12] Put simply, according to the applicant, as Mr. Jacknisky was not subject to any collective agreement, he cannot be considered a "city motor vehicle operator" within the meaning of part (c) of the definition.
[13] Both respondents have a different view. They suggest that the third portion of the definition is designed to cover all employees, whether included in a collective agreement or not. For the respondents, Mr. Jacknisky was a "city motor vehicle operator" according to the prevailing industry practice in Edmonton, where he was employed, even though he was not classified under that occupation in any collective agreement.
[14] The difference between the parties' positions is significant. As a "city motor vehicle operator", Mr. Jacknisky has a right to overtime after forty-five working hours per week and his claim for overtime in this case would be maintained. Otherwise, he would be eligible for overtime only after sixty working hours per week as a "highway motor vehicle operator" which is defined in section 2 of the Regulations as a motor vehicle operator who is not a city motor vehicle operator.
[15] The applicant conceded before the referee that if part (c) of the definition was found to apply to employees with no collective agreement, its appeal should be dismissed. I understand the applicant to have adopted the same position in this Court.
The Issue
[16] The issue before the referee and this Court is the same. Must there exist a collective agreement between Instinct Trucking Ltd. and a trade union acting for Mr. Jacknisky for the latter to come within part (c) of the definition of "city motor vehicle operator"? The applicant says "yes" and the respondents say "no".
The Referee's Decision
[17] The referee considered the parties' opposing interpretations of part (c) of the definition of "city motor vehicle operator". He concluded "... that there is a logical basis for either interpretation" and a plain reading of the words "does not result in a clear and unequivocal interpretation".
[18] The referee relied on section 12 of the Interpretation Act, R.S.C. 1985, c. I-21, as guidance to resolve what he considered to be the equivocal language in the Regulations. Section 12 of the Interpretation Act provides:
Every enactment is deemed remedial, and shall be given such fair, large and liberal construction and interpretation as best ensures the attainment of its objects.
Tout texte est censé apporter une solution de droit et s'interprète de la manière la plus équitable et la plus large qui soit compatible avec la réalisation de son objet.
[19] He then considered the purpose of the Regulations. He concluded that "... the overall intent is to ensure that employees called on to work extra or excessive hours are guaranteed a rate of pay in excess of the usual rate because of those extra hours."
[20] The referee rejected the applicant's interpretation of the third part of the definition as requiring the existence of a collective agreement. He did so for two reasons.
[21] First, if the intention was to restrict the definition to employees covered by a collective agreement, part (c) would have read "... or who is classified as something other than a motor city vehicle driver in such agreement ...".
[22] Second, limiting part (c) of the definition to employees covered by a collective agreement would result in an unequal treatment of unionized and non-unionized city motor vehicle operators. In the words of the referee:
If the appellant's version is correct, then city operators in a union are given greater benefits than the same city operators not in the union. I would expect that non-union employees are in need of greater protection than union employees and therefore the interpretation which includes non-union employees would seem to be preferable and in accordance with a "fair, large and liberal construction".
[23] The referee concluded that part (c) of the definition could apply to employees with no collective agreement. Accordingly, he dismissed the appeal of Instinct Trucking Ltd. and maintained the claim of Mr. Jacknisky for overtime wages.
Analysis
[24] In my opinion, the referee's decision is correct.
[25] The referee determined that a plain reading of the English text did not result in a clear and unequivocal choice between the parties' competing interpretations of part (c) of the definition.
[26] On this premise, I agree with his subsequent reliance on section 12 of the Interpretation Act to understand the intent and the purpose of the enactment.
[27] The Regulations were enacted pursuant to Part III of the Canada Labour Code entitled "Standard Hours, Wages, Vacations and Holidays". Division I of Part III deals with hours of work and includes section 174 which is the statutory basis for Mr. Jacknisky's claim for overtime wages.
[28] The purpose of Part III of the Code was recently considered in Dynamex Canada Inc. v. Mamona, 2003 FCA 248, [2003] F.C.J. No. 907 (QL), at paragraphs 31-35, where Justice Sharlow concluded: "In summary, the object of Part III of the Canada Labour Code is to protect individual workers and create certainty in the labour market by providing minimum labour standards and mechanisms for the efficient resolution of disputes arising from its provisions." [Emphasis added]
[29] The applicant concedes that his interpretation of the definition would result in less favourable treatment concerning overtime wages for non-unionized workers. The referee's view that such a result would not be consistent with a fair, large and liberal construction of the Regulations, supra paragraph 22, keeping in mind the object of Part III, is one which I share.
[30] I find further support for the referee's decision on a reading of the definition of "city motor vehicle operator" in both official languages.
[31] In the equally authoritative French version of the definition, the words "who is not classified in any such agreement" read "qui n'est pas classé aux termes d'une convention de ce genre" [emphasis added].
[32] As part of its submissions, the applicant argued that the words "who is not classified in any such agreement" refer to the collective agreement mentioned in part (b) of the definition. On the basis of his purposive analysis of the Regulations, the referee concluded otherwise.
[33] The phrase "de ce genre" is consistent with the referee's conclusion, with which I agree, that an employment relationship with no collective agreement was not meant to be excluded from the definition of "city motor vehicle operator".
[34] The English version does not contain an explicit equivalent of "de ce genre". Where two versions of bilingual legislation do not say the same thing, the meaning shared by both ought to be adopted unless that meaning is for some reason unacceptable: Ruth Sullivan, Sullivan and Driedger on the Construction of Statutes, 4th ed. (Toronto: Butterworths 2002) at 80. Put differently, each version forms part of the context in which the other must be read: ibid at 85 and Aeric Inc. v. Canada Post Corp., [1985] 1 F.C. 127 (C.A.) at 154.
[35] Similarly, where the referee found the English version to be ambiguous, the French version is to be preferred if it is plain and unequivocal. In my view, "de ce genre" makes it clear that the agreement referred to in part (c) of the definition does not refer exclusively, if at all, to the collective agreement in part (b) of the definition. The shared meaning between both official language versions is that which is not ambiguous: Pierre-André Côté, The Interpretation of the Legislation in Canada, 3d ed. (Scarborough: Carswell, 2000) at 327.
[36] Because I find the decision of the referee to be correct, the need to identify the appropriate standard of review is less apparent: Novartis Pharmaceuticals Canada Inc. V. Canada (Minister of Health), 2003 FCA 299, [2003] F.C.J. No. 1065 (QL) at paragraph 16. However, I should comment briefly on the submissions of counsel.
[37] In Dynamex, supra paragraph 28, the Court of Appeal concluded that the referee's determination as to whether a person was an employee or an independent contractor, on the basis of common law principles, should be reviewed on the standard of correctness.
[38] This case is also one requiring the interpretation of an enactment by a referee under Part III of the Canada Labour Code. The analysis in Dynamex might suggest that correctness is also the standard of review in this proceeding. However, of the four factors to be considered (see Dr. Q. V. College of Physicians and Surgeons of British Columbia, 2003 SCC 19, [2003] S.C.J. No. 18 (QL), the nature of the problem here likely suggests a greater degree of deference than in Dynamex.
[39] The status of Mr. Jacknisky as a city motor vehicle operator, especially as it invites consideration of the prevailing industry practice in the geographical area where he is employed and of labour standards for overtime wages, could be characterized as a question of mixed fact and law where reasonableness simpliciter would be the appropriate standard of review.
[40] Counsel for Mr. Jacknisky argued forcefully that the standard of review in this case should be patently unreasonable. His submission was based primarily on his understanding of the Court of Appeal's obiter comments in Dynamex (at paragraph 40) concerning the Ontario Divisional Court decision in United Steel Workers of America Local 14097 v. Franks (1990), 75 O.R. (2d) 382, [1990] O.J. No. 2007 (QL). I do not agree with counsel's submission.
[41] This application for judicial review will be dismissed with costs payable by the applicant, only to the respondent Jacknisky, fixed at $2,000 as suggested by counsel.
"Allan Lutfy"
C.J.
Ottawa, Ontario
September 8, 2003
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-1082-02
STYLE OF CAUSE: Instinct Trucking Ltd. Applicant
and
Don Jacknisky and Canada (Minister of Labour)
Respondents
PLACE OF HEARING: Edmonton
DATE OF HEARING: July 9, 2003
REASONS FOR ORDER: Lutfy C.J.
DATED: September 8, 2003
APPEARANCES:
Mr. Rostyk Sadownick FOR APPLICANT
Mr. Rick Garvin FOR RESPONDENT
Canada (Minister of Labour)
Mr. G. Brent Gawne FOR RESPONDENT
Don Jacknisky
SOLICITORS OF RECORD:
Rostyk Sadownick FOR PLAINTIFF/APPLICANT
2000 Sun Life Place
10123 - 99 Street
Edmonton, Alberta T5J 3H1
Justice Prairie & Arctic FOR DEFENDANT
211 Bank of Montreal Bldg. Canada (Minister of Labour)
10199 - 101 Street
Edmonton, Alberta T5J 3Y4
Gawne & Associates FOR DEFENDANT
3100 Manulife Place Don Jacknisky
10180-101 Street
Edmonton, Alberta T5J 3S4