Jade Bjola - v. -, 2011 SKPC 91

IN THE PROVINCIAL COURT OF SASKATCHEWAN CIVIL DIVISION Citation: 2011 SKPC 091 Date: June 14, 2011 File: 72/09 Location: Yorkton _____________________________________________________________________________ Between: Jade Bjola - and - Benmar Holdings Inc. Mr. Wayne Rusnak, Q.C. For the Plaintiff Ms. Kyla Eiffert For the Defendant _____________________________________________________________________________ JUDGMENT R.

GREEN , J _____________________________________________________________________________ [ 1 ] Jade Bjola claims for unpaid wages from the defendant corporation, for work done for the defendant in March of 2009. Her mother, Jodine Bjola, initially introduced her to Marlene Swan, an owner of the defendant company. This meeting happened at an apartment building owned by the defendant, located on Bradbrooke Drive across from the Yorkton Hospital. She said Ms. Swan told her what she would be doing and hired her for a wage of $15.00 per hour.

Her duties were to include assembling furniture, setting up apartments which were being renovated, washing floors, and preparing these furnished apartments so that a tenant could move in.

[ 2 ] Ms. Bjola’s claim for unpaid wages spans six days: March 3, 4, 5, 7, 12 and 13, 2009. She filed: (1) two weekly employment time sheets; (2) her notes setting out what she did on each day; and (3) a void cheque provided to the defendant, so that she could be paid (Exhibit P-1). These documents were faxed to Ms. Swan on March 19, 2009. Ms. Bjola claims for 39.5 hours at $15.00 per hour, for a total of $592.50. [ 3 ] The time sheets and notes indicate that she did the following: 1) On Tuesday, March 3, 2009, she worked from 10:00 a.m. to 6:00 p.m. for a total of eight hours.

On that day she worked in suite 11, assembling furniture, washing floors and dusting. 2) On Wednesday, March 4, 2009, she worked from 9:00 a.m. to 12:00 noon and from 2:00 p.m. to 9:00 p.m. for a total of 10 hours. On that day she shopped at WalMart and Liquidation World (purchasing items for the renovation), repainted suite 11 kitchen cupboards, lined cupboards with lining, hung pictures and a mirror, set up a bed with pillows and a duvet, and vacuumed, washed and organized. 3) On Thursday, March 5, 2009, she worked from 9:00 a.m. to 2:00 p.m. for a total of five hours.

On that day she finished suite 11 and shopped at Giant Tiger. 4) On Saturday, March 7, 2009, she worked from 10:00 a.m. to 3:30 p.m. for a total of five and a half hours. On that day she cleaned suite 16. 5) On Thursday, March 12, 2009, she worked from 9:00 a.m. to 3:00 p.m. for a total of six hours. On that day she worked in suite 16B, washing floors, scraping paint off the floors, washing the oven, vacuuming the bathroom and washing the walls. 6) On Friday, March 13, 2009, she worked from 9:00 a.m. to 2:00 p.m. for a total of five hours.

On that day she worked in suite 16B, she swept the floors, cleaned the kitchen, lined the cupboards with lining, cleaned the bathroom, started to move furniture into the suite, but was then called into a meeting during which she spoke to Ben Swan over the phone in Calgary. [ 4 ] Ms. Bjola’s notes indicate that on March 9, 10 and 11, she worked for her mother, who was painting suites for the defendant in this apartment building. This work was not billed to the defendant. Ms. Bjola as well submitted receipts for purchases she made on the defendant’s behalf, referred to above, which totalled $180.94.

She was subsequently reimbursed for these expenses by the defendant, and as a result no longer includes this amount in her claim. [ 5 ] Ms. Bjola said that Brent Spelay, who she understood was the manager of the apartment building, was the one who assigned work to her each day. She said he approved all of the purchases she made at the stores on behalf of Marlene Swan. She said Mr. Spelay was working on renovations, at the same time she was working, and was giving her directions. [ 6 ] On March 13, 2009, Ms. Bjola was called into a meeting with Larry Tittle, Mr.

Spelay and Lance Leray-Houdek, another young person who she understood was working for the defendant. Ms. Swan testified that Mr. Tittle became the manager of the apartment building on March 1, 2009. [ 7 ] At this meeting, connection was made by telephone with Ben Swan in Calgary. He is the husband of Marlene Swan and a co-owner of the defendant corporation. Mr. Spelay then handed a fax from Mr. Swan to Ms. Bjola. That fax was addressed to Larry Tittle, and read: Hello Larry, I have a task that I would like to be executed before today’s end.

Both Lance and Jade are no longer required by BMH, their employment arrangements made through Marlene are to end immediately and any concerns or questions related to this are to be directed to myself at 780-598-1604. The out of pocket expenses that Jade submitted will be deposited into her account by tomorrow day end by Marlene. Her first bill of 28.5 hours will be paid out after Marlene reviews with Jade the issues I have with the hours relating to the tasks, this will happen in Yorkton before Friday, March 27, 2009.

Lance sent an invoice today that will require an explanation of work completed for hours charged before I consider paying it. Please have both Jade and Lance put together a final bill up to and including any hours that they worked today with a full detailed explanation of what they accomplished for the hours worked and fax it to us at 1-403-453-2612.

Thank you for your assistance in this matter. Ben Swan [ 8 ] During this meeting, Mr. Swan fired Ms. Bjola, and told her that her services were no longer needed because she was taking advantage of the situation and double dipping. She was told she was doing work that was not in her job description. However, she replied to Mr. Swan that she did what she was told to do by Mr. Spelay. [ 9 ] On cross-examination, Ms. Bjola maintained that Ms. Swan gave her a description of what was to be done, and said that if she had any questions to talk to Mr. Spelay, who was the manager. She denied knowing that Mr.

Spelay was not the manager after March 1. Ms. Bjola said that, on every day she worked for the defendant, Mr. Spelay gave her a list and she completed what was on it. [ 10 ] Ms. Swan said that, shortly after initially meeting Jodine Bjola, who she hired to paint suites at the apartment building, she met Ms. Bjola’s daughter Jade. Jade assisted her with hauling dishes and some other tasks. As a result, Ms. Swan paid Jade $40.00, but denied hiring her at that time. Ms. Swan did say that she spoke to Jade about the possibility of summer employment. [ 11 ] Ms.

Swan said that, after she returned to Calgary, she received a telephone conference call from Mr. Spelay and Jodine Bjola. In that conversation, both individuals told her that the deadlines for the suites were unrealistic and that further help was needed. She denied ever saying that Jade Bjola could be hired, but recalled the mention of $15.00 per hour. [ 12 ] Ms. Swan said her understanding was that Ms. Bjola’s work was solely as an assistant to her mother and, as a result, her wages were to be paid by her mother and not the defendant. She denied authorizing Mr. Spelay to assign work to Ms.

Bjola. [ 13 ] In cross-examination, Ms. Swan was asked whether she maintained that Ms. Bjola was never an employee of the defendant, as stated in the defendant’s Dispute Note. She maintained this position. She was then asked, considering that position, how her husband could purport to fire Ms. Bjola in his fax of March 12, 2009. In my view, there was no clear answer given to this question. Further, while that fax refers to meeting with Ms. Bjola before March 27, 2009, in Yorkton to clear up the concerns of the Swans about Ms. Bjola’s hours, it is clear that meeting did not happen.

When asked why she did not pay Ms. Bjola after she received her time sheets, Ms. Swan said that there were inconsistencies in these time sheets and that these inconsistencies needed to be satisfied so that Ms. Bjola could be paid. [ 14 ] It stands to reason that someone cannot have their employment terminated unless they have been hired as an employee in the first place. As a result, I am satisfied that Ms. Bjola was hired as an employee by the defendant corporation, and that she is entitled to be paid her wages for the services she rendered.

The remaining, and ultimate, question is what is the best evidence on what Ms. Bjola is owed by the defendant. [ 15 ] Ms. Swan testified that Larry Tittle replaced Mr. Spelay as manger on March 1, 2009, and that as a result, Mr. Spelay had no authority to assign work to Ms. Bjola. I am satisfied, however, based on the evidence of Mr. Tittle, that Mr. Spelay continued to be in charge of the renovations after March 1, on behalf of the defendant and did have this authority. Mr. Tittle did not disagree with the suggestion that his job, as manager after March 1, 2009, was primarily as a rent collector. Mr.

Tittle did not know what specific tasks Ms. Bjola had been assigned to do, nor did he prepare any lists for her to follow. Further, he said that Mr. Spelay remained in charge of the renovations, under the direction of Ben and Marlene Swan. When asked whether he gave directions to Mr. Spelay, Mr. Tittle said Mr. Spelay knew what was to be done. [ 16 ] In total, this evidence satisfies me that Mr. Spelay had the authority to assign and direct the work done by Ms. Bjola. As Mr.

Tittle and Ms. Swan had no knowledge of the specific tasks performed by Ms. Bjola on the days in question, I view the best evidence on this question to be the time sheets and notes submitted by the plaintiff. Based on these, I am further satisfied that Ms. Bjola worked in the employ of the defendant for 39.5 hours at the rate of $15.00 per hour, and is entitled to be paid the sum of $592.50. [ 17 ] As a result, Ms. Bjola will have judgment against the defendant in the sum of $592.50, together with interest from March 19, 2009 (the date Ms. Bjola faxed her time sheets to Ms. Swan) under The Pre-Judgment Interest Act , and the costs of issuing this action ($20.00). R. Green, J