2020 QCCQ 5456, 2020 QCCQ 5456

Duengen c. Canadian Helicopters Limited 2020 QCCQ 5456 Court of Quebec “Small Claims Division” CANADA PROVINCE OF QUEBEC DISTRICT OF ROUYN-NORANDA LOCALITY OF ROUYN-NORANDA “Civil Division” No.: 600-32-700274-194 DATE: October 13, 2020 ______________________________________________________________________ PRESIDING: THE HONOURABLE JEAN-PIERRE GERVAIS, J.C.Q. ______________________________________________________________________ ANDREAS W. DUENGEN [...], Rouyn-Noranda, QC, [...] Plaintiff v.

CANADIAN HELICOPTERS LIMITED 1215 Montée Pilon, Les Cèdres, QC, J7T 1G1 Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] The plaintiff is suing the defendant because he considers that the defendant did not pay him the correct hourly rate.

He therefore claims the difference in salary in addition to the expenses incurred and the time spent by him and his spouse preparing this case. [ 2 ] The defendant denies that fact and argues that the Court does not have the jurisdiction to decide the matter, which should instead be heard in accordance with the provisions of the Canada Labour Code . [1] [ 3 ] At the outset, it is useful to state that although this jurisdictional issue must be decided, the fact remains that this Court must consider the merits of the dispute.

Let us recall that there are two aspects to the dispute: the issue of salary and a claim for damages for the expense and efforts required to present this case. Although there may be a debate on the jurisdiction of this Court to hear the first issue, there is no doubt as to the Court’s jurisdiction to hear the second. [ 4 ] Here is the context of this matter. [ 5 ] Mr.

Duengen was employed by the defendant as a helicopter aircraft maintenance engineer from 1987 until April 2019. [ 6 ] His job required him to work in many locations, which were sometimes remote, and to follow an irregular schedule, subject to the needs of the company. [ 7 ] In fact, as its name indicates, the company operates primarily in the transportation by helicopter and as a result, its operations depend on a number of factors including client needs and the weather. [ 8 ] The result is that there can be significant peak periods during which employees are called upon more and work over forty (40) hours a week. [ 9 ] Usually that situation results in the payment of a premium of 50% an hour for those excess hours.

In other words, beyond forty (40) hours worked in one week, Mr. Duengen should receive 1.5 times his hourly wage in overtime. [ 10 ] However, given the specific characteristics of the company, according to s. 169(2) of the Canada Labour Code , it can depart from that rule and not pay overtime, as long as the distribution over the reference period establishes that the average does not exceed forty (40) hours a week. 169

(1) Except as otherwise provided by or under this Division (

a) the standard hours of work of an employee shall not exceed eight hours in a day and forty hours in a week; and (

b) no employer shall cause or permit an employee to work longer hours than eight hours in any day or forty hours in any week.

(2) Where the nature of the work in an industrial establishment necessitates irregular distribution of the hours of work of an employee,

the hours of work in a day and the hours of work in a week may be calculated, in such manner and in such circumstances as may be prescribed by the regulations, as an average for a period of two or more weeks. [ 11 ] In this case, having met all of the conditions and obtained all the required authorizations, the defendant was able to spread out the hours worked by its employees, including the defendant, over one year.

As long as employees do not work more than 2,080 hours over a period of one year, no overtime is payable. [ 12 ] It should be noted, however, that the authorization to act this way is not unlimited in time, but is granted for a period not exceeding three (3) years, as s. 169(2.1) C.L.C. dictates. [ 13 ] Therefore, an employer who wishes to avail itself of it for a longer period must inevitably seek to have it renewed. [ 14 ] Therein lies the problem.

For administrative reasons Canadian Helicopters Ltd. failed to request a renewal of this authorization for the period between May 1, 2014, and November 1, 2015. [ 15 ] Thus, at first glance, it was no longer subject to that regime and was required to respect ss. 169 and 174 CLC and pay a 50% premium to employees who worked over 40 hours in one week. [ 16 ] After noticing its oversight, the company communicated with the federal government agency responsible for the Labour program - Employment and Social development Canada (hereinafter ESDC) to correct that error, not only for the future, but also for the past.

The authority in question accepted the request on October 6, 2015, and while the decision does not specifically refer to the period at issue, the permit was renewed and covered that period, which resulted in the situation being rectified. [ 17 ] It was only after his request under the Access to information act had been processed in March 2017, that the plaintiff became aware of this. [ 18 ] He considered that his employer could not therefore avail itself of the provisions relating to the averaging of hours worked and filed a complaint with an ESDC inspector, as permitted by the CLC .

On January 10, 2019, the inspector rejected the employee’s claims because he was barred from filing them because he had not respected the six-month time limited imposed by s. 251.01(2)(

a) CLC . 251.01

(2) A complaint under subsection (1) shall be made within the following period (

a) in the case of a complaint of non-payment of wages or other amounts to which the employee is entitled under this Part, six months from the last day on which the employer was required to pay those wages or other amounts under this Part; and [ 19 ] It must be noted that at that time Mr. Duengen did not avail himself of the option offered by s. 251.101(1) CLC to seek a review of that decision within 15 days of its receipt. 251.101

(1) A person who is affected by a payment order, a notice of unfounded complaint or a notice of voluntary compliance may send a written request with reasons for a review of the inspector’s decision to the Minister within 15 days after the day on which the order or a copy of the order or the notice is served. [ 20 ] Instead, he applied to the small claims division of this court, alleging essentially the same grounds, but adding another element to his claim. [ 21 ] He considers that he is owed an amount of $9,625.82 in overtime and other benefits.

To this, he adds the professional fees he paid to his lawyers and the time he and his spouse spent researching and preparing the case, amounting to $5,351.75. [ 22 ] As stated by the defence, in addition to filing a cross-application and denying the merits of the claim, the defendant invokes prescription and that this court does not have jurisdiction. [ 23 ] The first of these issues can be addressed quickly. [ 24 ] It is true that s. 2925 C.C.Q. provides that a personal action such as this one is prescribed by 3 years, but the plaintiff must be aware that this right exists. [ 25 ] Here, according to the evidence, he had no reason to suspect that for the period at issue the defendant did not have the authorization to pay its employees as it did.

That was internal information that was within the control of Canadian Helicopters Ltd and there is nothing to suggest that its employees had access to it without having to take specific steps to obtain it. [ 26 ] It is therefore difficult to blame Mr.

Duengen for acting belatedly. [ 27 ] The second issue on the jurisdiction of this Court to hear the matter can only pertain to the part of the claim related to the wages and benefits. [ 28 ] Regardless of the answer to the second question, the part of the claim concerning damages is not affected, given that the inspector’s jurisdiction under the CLC does not allow him or her to grant such restitution. [ 29 ] In Prince c.

Vidéotron ltée , [2] our colleague, the Honourable Henry Richard, had to rule on a similar debate. [ 30 ] As in this case, the employer’s area of operation was federally regulated and accordingly, it was subject to the rules stipulated under the CLC . [ 31 ] Richard J.C.Q., relying, inter alia , on the remarks of the author Ronald M. Snyder, [3] concluded that a person governed by that code could not apply to a civil court to settle an issue that must be settled according to the mechanism provided by the CLC .

[ 32 ] He considered that to act otherwise was equivalent to allowing the appeal or review of an inspector’s decision outside the framework imposed by the statute. [ 33 ] The Court considers his reasoning well founded in the circumstances of the file that he had before him but this file differs from it on one essential aspect. [ 34 ] Indeed, while in Prince c.

Vidéotron ltée , the inspector rendered a decision that determined the employee’s claim on the merits, here, the dismissal of the actions rests on the fact that the employee was tardy. [ 35 ] Therefore, he is not asking for the opportunity to present the same arguments a second time in the hope of obtaining a different judgment. [ 36 ] In short, the issue is that of determining whether the remedy provided in the CLC is exclusive or if the civil courts have concurrent jurisdiction. [ 37 ] The subject has given rise to conflicting case law; indeed, some decisions have in the past supported the position argued by the defendant in this case. [4] [ 38 ] In a recent judgment, [5] the Superior Court of Quebec had to respond to the argument that the common law courts cannot hear an issue when the CLC already provides for a mechanism to deal with it.

After reviewing the case law, that Court concluded as follows: [70] Après avoir examiné les dispositions du Code et avoir apprécié la nature de la question en litige, le Tribunal en vient à la conclusion que, même si la loi prévoit un mécanisme pour résoudre les différends qui peuvent survenir entre un employeur assujetti et un employé au sujet de la rémunération d’heures supplémentaires ou du paiement d’une indemnité de congé annuel, la juridiction qui est accordée à l’inspecteur et à l’arbitre nommés dans cette loi n’est pas exclusive et n’a pas pour effet de retirer à la Cour supérieure la compétence qu’elle possède à l’égard de ces matières.

L’existence de clauses privatives ne modifie pas cette conclusion. [ 39 ] To do so, the Honourable Michèle Monast, J. was inspired by the judgment in McCracken v. Canadian National Railway , [6] among others. The issue was stated in the following manner: [116] Since the rights to be paid a special rate of pay for overtime and for holiday work are statutory rights that did not exist at common law or equity, the question of subject matter jurisdiction is a question of determining what Parliament intended about the enforcement of those rights.

In the case of the Canada Labour Code , Parliament has set out a scheme that provides for administrative agencies and tribunals to enforce claims for overtime and holiday pay, and the precise question is whether or not Parliament also intended to confer jurisdiction on the courts to enforce the rights provided by the Code. [ 40 ] Relying in particular on the very wording of s. 261 CLC , the Superior Court of Justice concluded that the remedy provided by that statute is not exclusive and that provincial courts have jurisdiction. [152] There is, however, a more elaborate argument available to Mr.

McCracken that s. 261 indicates that Parliament intended the courts to have jurisdiction to enforce wage claims for overtime. The more elaborate argument is that it may be inferred from reading the whole Canada Labour Code that Parliament intended the courts to have this jurisdiction or else there would be no need to include a provision like s. 261 in the Act. [153] The precise line of the elaborate argument is that: (

a) under s. 166, “wages” includes “every form of remuneration for work performed”; (

b) under s. 166, “overtime” means hours of work in excess of standard hours of work; (

c) s. 174 provides for overtime pay “at a rate of wages”; (

d) therefore, overtime pay is included in wages; (

e) s. 247 requires an employer to pay “to any employee any wages to which the employee is entitled”; (

f) therefore, an employer is obliged to pay overtime pay as wages; (

g) s. 258 provides that where an employer has been convicted of an offence, the convicting court shall “order the employer to pay to the employee any overtime pay, vacation pay, holiday pay or other wages or amounts to which the employee is entitled;” (

h) therefore, under the administrative process of the Code an employer may be ordered to pay overtime wages; (

i) however, under s. 261 “no civil remedy for arrears of wages [which includes overtime pay] is suspended or affected by [the administrative process of

Part III]”; and (

j) therefore, by inference, there must be a civil claim for overtime pay, because otherwise s. 261 would have no purpose in preserving a civil claim for overtime pay which is included in wage claims. [154] There are other indications that Parliament intended that there be a civil claim to enforce wage claims including payment of overtime. [155] Under s. 249 (1) of the Code , the Minister of Labour is empowered to appoint inspectors, and under s. 249 (2), the inspectors have considerable powers of inspection, examination, and to compel disclosure with respect to wages and other matters.

Section 249(7) provides that “no inspector, and no person who has accompanied or assisted the inspector in carrying out the inspector’s duties and functions, shall be required to give testimony in any civil suit or civil proceedings”.

This provision presupposes that there would be civil proceedings that would benefit by testimony from the inspector to enforce wage claims, which would include claims for overtime pay. [156] Under s. 240 (1) of the Code , a complaint may be made to an inspector for unjust dismissal, and pursuant to subsections 241(3) and (4) where the complaint is not settled, there may be a reference to an adjudicator.

Under s. 242(4), where an adjudicator decides that a person has been unjustly dismissed, the adjudicator may order the employer to pay the person compensation not exceeding the amount of money that is equivalent to the remuneration [which could include overtime pay] that would, but for the dismissal, have been paid by the employer to the person. Section 246(1) provides that no civil remedy of an employee against his employer is suspended of affected by sections 240 to 245.

Once again, s.246 (1) presupposes that there must be a civil action for compensation for wages including overtime pay. [157] Section 168(1) of the Code provides that

Part III applies notwithstanding any other law or any custom, contract or arrangement, but nothing in

Part III shall be construed as affecting any rights or benefits of an employee under any law, custom, contract or arrangement

that are more favourable to the employee than his rights or benefits under this Part. Under s. 168(1) contract rights that are more favourable than the rights under the Code are not affected. This suggests that, for example, a more favourable right to overtime pay could be enforced by an action in the courts for breach of contract.

This example, in turn, suggests that Parliament intended that there be a civil action to enforce rights to overtime. [ 41 ] This Court considers that had Parliament’s intention been to create an exclusive jurisdiction for the inspector, the letter of the law would have been clear to that effect.

Therefore, as both the Quebec and Ontario Superior Courts have found, in spite of some vacillation in the case law, this is not the case. [ 42 ] Accordingly, the Court of Quebec, Small Claims Division, has jurisdiction to rule on this issue. [ 43 ] That said, what conclusions can be drawn from the evidence adduced in this matter? [ 44 ] As mentioned, the main criticism levelled at the defendant by the plaintiff is that it did not have the necessary authorization to average out its employees’ hours of work over the year. [ 45 ] That was true for the period from May 2014 to November 2015, but it has been established on a balance of probabilities that this situation was rectified, in all likelihood retroactively, by the competent authorities.

Therefore, that administrative error was corrected. As a result, the defendant’s incorrect manner of paying overtime hours was nevertheless endorsed by the appropriate government body. [ 46 ] It is noted that no one established or even argued that the government body’s decision to rectify the situation as it did was unlawful and invalid. [ 47 ] Accordingly, there is no fault or breach giving rise to a right to claim unpaid wages or an amount in damages for Mr.

Duengen. [ 48 ] Therefore, the principal action must be dismissed. [ 49 ] As mentioned, in the cross-application the defendant faults its ex-employee for his relentlessness and his decision to undertake this proceeding even though it is, in its words “manifestement prescrits”. [ 50 ] As stated above, the Court does not accept the argument that the application had to be dismissed because it was tardy. [ 51 ] Furthermore, it is important to emphasize that as long as the decision to undertake such a claim is not dictated by bad faith or the intent to harm, it is every citizen’s right to apply to the courts as Mr.

Duengen did. [ 52 ] A plaintiff is not condemned to pay damages to the person he or she has sued due to a difference of opinion between the parties or the fact that the plaintiff was unsuccessful. [ 53 ] In light of this, the cross-application will also be dismissed and therefore costs will be mitigated. FOR THESE REASONS, THE COURT: DISMISSES the principal application; DISMISSES the cross-application; Each party to pay its own legal costs. __________________________________ Jean-Pierre Gervais, J.C.Q. Date of hearing: June 22, 2020