Pommer v. Match Converge Inc. Date:, 2016 BCPC 25

Citation: Pommer v. Match Converge Inc. Date: 20160202 2016 BCPC 0025 File No: 1547301 Registry: Prince George IN THE PROVINCIAL COURT OF BRITISH COLUMBIA (SMALL CLAIMS) BETWEEN: GLENN POMMER CLAIMANT AND: MATCH CONVERGE INC. DEFENDANT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE R. W. CALLAN Appearing on their own behalf: G. Pommer Counsel for the Defendant: Allison Jaquish Place of Hearing: Prince George , B.C. Date of Hearing: January 22, 2016 Date of Judgment: February 2, 2016 INTRODUCTION

INTRODUCTION [ 1 ] This is a civil action by the Claimant, Glenn Pommer, against his former employer, Match Converge Inc. Mr. Pommer was employed by the Defendant from October 1, 2013 until May 15, 2015. At the end of his employment, Mr. Pommer made a complaint under the Employment Standards Act to recover unpaid wages. [ 2 ] Mr. Pommer, through a settlement with Match Converge Inc., arrived at, under the auspices of the Employment Standards Branch (the Branch), received $4,814.41 representing unpaid wages from his last six months of employment with the Defendant.

The Employment Standards Act only allows the Branch to investigate wage claims from the last six months of employment. [ 3 ] Mr. Pommer filed a Notice of Claim in Small Claims Court on June 10, 2015. This claim is for the wages Mr. Pommer says are owed to him for his period of employment outside the six month period considered by the Branch. This claim is for 538.4 hours of wages at $17.75 an hour for a total of $9,942.56. In addition, he seeks the cost of a registry search in the amount of $55.65 and filing fees and service fees in the amount of $176.00, for a total of $10,174.21.

ISSUE BEFORE THE COURT [ 4 ] Match Converge Inc. has filed a motion under 16 (6) (0) of the Small Claims Rules seeking to have Mr. Pommer’s claim dismissed for the following reasons: 1. There is no entitlement to enforce statutory right to wages for travel in a civil action; 2. Mr. Pommer’s claim is statute barred, as he has not obtained the consent of the Director of Employment Standards to commence a civil action for wages; 3. Mr. Pommer’s complaint has already been settled and is therefore res judicata . DISCUSSION [ 5 ] I reject the Defendant’s argument about res judicata . Mr.

Pommer does not claim wages in this action for the six months considered in the settlement made with the Employment Standards Branch. As noted in

section 80 of the Employment Standards Act set out below: 80

(1) The amount of wages an employer may be required by a determination to pay an employee is limited to the amount that became payable in the period beginning (

a) in the case of a complaint, 6 months before the earlier of the date of the complaint or the termination of the employment, and (

b) in any other case, 6 months before the director first told the employer of the investigation that resulted in the determination, plus interest on those wages. [ 6 ] Mr. Pommer has made it quite clear both in his Notice of Claim and in his submission on this motion that he seeks wages from the period of his employment not considered by the Employment Standards Branch. [ 7 ] The next consideration for this Court is

section 82 of the E mployment Standards Act : 82 Once a determination is made requiring payment of wages, an employee may commence another proceeding to recover them only if (

a) the director has consented in writing, or (

b) the director or the tribunal has cancelled the determination. [ 8 ] Mr. Pommer has not obtained consent of the Director to commence this civil action. While this is a defect in Mr. Pommer’s claim, I will discuss it further, later in these reasons. [ 9 ] The most significant argument made by Match Converge Inc. is that once a determination and settlement has been entered into under the Employment Standards Act , an employee cannot launch a civil action to seek additional wages. THE CLAIMANT’S RESPONSE [ 10 ] Mr. Pommer argues that he has a valid claim for wages. This is based on the decision of Walberg v.

Treasury Board , which allowed an employee to claim wages for travel completed at the request of the employer and on behalf of the employer’s business. [ 11 ] Mr. Pommer argued the case of Canuck Security Services Limited v. Gill 2013 BCSA 893, a decision of the Honourable Mr. Justice Armstrong. At paragraph 22 of the decision, his Lordship writes: For the reasons stated below, I’ve concluded that the plaintiff failed to pay Mr. Gill’s wages and overtime entitlements from December 2009 through October 2, 2010. Mr. Gill does not advance a claim for any amounts that were resolved as part of the settlement.

The settlement agreement expressly excluded Mr. Gill’s claims for payments of amounts due from December 2009 to April 2010; they were not encompassed in the settlement nor has the judicial decision on that question being made. As a result I have concluded that the defenses of issue estoppel and res judicata have no application to this proceeding. [ 12 ] I note one of the Defendant’s cases, Wilkes v. McLaren Electric

(1975) Ltd ., [2013] B.C.J. no 1464 , a decision of the Honourable Judge E.C. Blake. At paragraph 42:

Section 118 of the Employment Standards Act also seems to once again prevent me accepting the Defendants argument. That sectionappears to contemplate the claimant may have other claims against the Defendant who is being pursued through the complaints process. So long as those other claims are not captured by

section 82 of the Act the claimant’s right to pursue any such actions remainsunimpeded. [13] And at the end of his judgment: Conclusion 47. On the basis of all of foregoing I have concluded that the claimant ought to be permitted to amend his Notice of Claim to pleaddamages for breach of contract. I make no comment regarding the strength or weakness of that claim except to say that it is not so weakthat on any objective view it must be doomed to failure. 48. The claimant is not barred from access to this court by any provisions of the Employment Standards Act.

Nor in the particular factpattern of this case, is a Claimant barred from access to this court by virtue of his invocation of the complaints process contemplated bythat legislation. [14] These two cases accept the principle that those parts of a claim for wages that do not fall into the six months contemplatedunder

section 82 of the Employment Standards Act, may survive as a claim in a civil action. LEGAL ANALYSIS [15] The case of Macaraeg v. E. Care Centers Ltd., 2008 BCCA 182 , 2008 BCCA182, is a further analysis of a claimant’sright to a civil action in addition to a claim before the Employment Standards Branch. Again we have an employee seeking wages in acivil action for a period of time not considered by the Employment Standards Branch. [16] The Court of Appeal framed the issues as follows: Positions of the parties [20] E. Care contends the judge erred concluding the ESA does not expressly or necessarily preclude Ms.

Macaraeg from claimingovertime in a civil action. It says the statutory remedies are the sole remedies. [21] E. Care also asserts the judge erred holding the minimum overtime provisions of the ESA are implied terms of Ms. Macaraeg’semployment contract. [22] In addition to supporting the chambers judge’s reasons, Ms. Macaraeg contends the CPA is an independent source of authority forpursuing payment for overtime. [23] The Director concurs with E.

Care’s statement of the alleged errors of the chambers judge and contends the CPA affords no supportfor the decision of the chambers judge. [17] I would note the references to the Class Proceedings Act do not apply in this action.

I also note the Director supported E.Care’s position. [18] After reviewing the issues, and the decision of the chambers judge in supporting the plaintiffs claim, the Court of Appealconcluded: [102] When a statute provides an adequate administrative scheme for conferring and enforcing rights, in the absence of providing for aright of enforcement through civil action expressly or as necessarily incidental to the legislation, there is a presumption that enforcementis through the statutory regime and no civil action is available. [103] In this case, the ESA provides a complete and effective administrative structure for granting and enforcing rights to employees.There is no intention that such rights could be enforced in a civil action.

CONCLUSIONS [19] The Court of Appeal noted at paragraph 96:

Section 118 provides: Subject to

section 82, nothing in this Act or the regulations affects a person's right to commence and maintain an action that, but for thisAct, the person would have had the right to commence and maintain. [20] I am obliged to follow the decision of the Court of Appeal. The Employment Standards Act is paramount in wage disputesbetween employer and employee. The Act is a complete code to deal with such claims. The saving provisions, however, are found atsection 82.

An employee having had a complaint resolved by the Employment Standards Branch could commence a civil action forwages not investigated by the Branch if consent of the Director of Employment Standards is obtained. Without such consent a civilaction would fail for the reasons set out in Macaraeg. ORDER [21] This Court orders that all proceedings in this action, including previous Orders regarding exchange of documents and witness

lists, are suspended. [ 22 ] This Court further orders that the Claimant, Glenn Pommer, has until April 30 th , 2016, to file an affidavit attesting that the Director of Employment Standards has consented to a civil action against the Defendants for Mr. Pommer’s claim for wages not considered by the Employment Standards Branch. [ 23 ] This Court further orders that if such affidavit is not filed on April 30, 2016, Mr. Pommer’s action as against Match Converge Inc. is dismissed without costs. _______________________ R. W. Callan Provincial Court Judge Province of British Columbia