KIM’S MART CORPORATION, – v. –, 2023 NBKB 9

IN THE COURT OF KING’S BENCH OF NEW BRUNSWICK TRIAL DIVISION JUDICIAL DISTRICT OF MONCTON Kim’s Mart Corporation v. Hyeong Wook Jeong and His Majesty the King in Right of the Province of New Brunswick, as represented by the Director of Employment Standards 2023 NBKB 009 MM/106/2022 BETWEEN: KIM’S MART CORPORATION, – and – HYEONG WOOK JEONG – and – HIS MAJESTY THE KING IN RIGHT OF THE PROVINCE OF NEW BRUNSWICK, as represented by the DIRECTOR OF EMPLOYMENT STANDARDS DECISION BEFORE: Chief Justice Tracey K.

DeWare AT: Moncton, New Brunswick DATE OF HEARING: October 25, 2022 DATE OF DECISION: January 27 th , 2023 APPEARANCES: Julie Young and Tristian Gaudet, for the Applicant Nicholas O’Toole, for Hyeong Wook Jeong Keith Mullins, for His Majesty the King

DeWare, C. J. INTRODUCTION [ 1 ] This is an application for judicial review of a decision of the Labour and Employment Board (“the Board”) issued by chairperson George P.L. Filliter on March 11, 2022. The Applicant, Kim’s Mart Corporation (“the Applicant”) asks this court to quash the Board’s decision, set it aside and remit it back to the Board. Following a hearing on the application on October 25, 2022, I orally dismissed the application with written reasons to follow. These are those reasons.

FACTS [ 2 ] On March 27, 2021, the Respondent, Hyeong Wook Jeong (“the Respondent”) filed a complaint with the director of employment standards claiming that he had been terminated from his employment with the Applicant, and he was owed wages for work he had performed. Following an investigation by investigator Josée Blanchette, the Director of Employment Standards ordered the Applicant to pay the Respondent the amount of $26,643.77.

The Applicant referred this order to the Board and a hearing was convened before chairperson George PL Filliter, K.C. virtually on October 7 and December 22 nd 2021. [ 3 ] Due to the ongoing pandemic, the hearings before the Board were conducted virtually. The Applicant alleges that the virtual format made it difficult to understand the evidence of certain witnesses and the quality of the video was at times poor. Several witnesses testified, including the Respondent, Ms. Kim and the investigator, Ms.

Blanchette. [ 4 ] The Board accepted that the Respondent had been terminated and that there were monies still owing to him as a result of his employment with the Applicant. The Board also found that the Applicant had not kept reliable employment records as to the hours worked by the Respondent. The Board’s conclusions can be found in paragraphs 46, 47, 48, 57, 58, 59, 60, 61, 62 and 63 as follows: 46. In

summary, the Board determines that there is no evidence of the Employee clearly communicating, objectively or subjectively, his intention to quit his employment. 47. This conclusion is bolstered by the admission of Ms. Kim during her testimony that she did not give the legal notice of termination to the Employee and accepts that she owes him this money. Counsel for the Employer argued that this statement was simply an acknowledgement of owing two weeks pay in lieu of notice if the Board finds the Employee was terminated, but this is not an accurate reflection of the evidence.

Even if it was accurate, the Board does find that the Employee was terminated by the Employer on March 23, 2020. 48. For all of these reasons, the Board concludes there is no merit to the submission that the Employee quit. The oral and written evidence before the Board confirms that he was terminated on March 23, 2020 . As such, the Board concludes that the Employer does owe the Employee two (2) weeks pay in lieu of notice pursuant to section 30(1) of the Act . […] 57. Blanchette went into great detail on how she calculated the amount to which the Employee was entitled. 58.

First, she testified that the Employee was paid minimum wage. In her evidence, she referred to the Minimum Wage Regulations passed pursuant to the Act (2018-25 and 2019-2). In

summary, she testified that the minimum wage in New Brunswick until March 30, 2019 was $12.50 an hour and as of April 1, 2019, it increased to $13.00 an hour. For overtime work, this translated to $16.88 an hour until April 1, 2019, when it increased to $17.25 per hour. It was these figures she utilized in calculating the amount to which the Employee was entitled. 59. As noted above, the calculations of Blanchette were utilized in the drafting of the Director’s Order # O210405. Blanchette determined that the Employee was entitled to $26,643.77 broken down as follows: a. Termination Pay $10,164.43 b. Vacation Pay $911.11

c. Regular Days Pay $518.97 d. Time and a Half $551.07 e. Pay in lieu of Notice $1,667.05 f. Vacation Pay on Pay in Lieu $66.68 g. Minimum Wage for Overtime $12,764.46 60. During her direct evidence, Blanchette revised her calculations and indicated that the Employee was actually entitled to the following: a. Termination Pay $10,203.00 b. Vacation Pay $1,027.13 c. Regular Days Pay $579.00 d. Time and a Half $585.00 e. Pay in lieu of Notice $1,772.49 f. Vacation Pay on Pay in Lieu $70.90 g. Minimum Wage for Overtime $15,605.33 TOTAL $29,842.85 61.

The Board notes that the Employer did not challenge the basis of the revised calculations of Blanchette. 62. In considering the evidence of Blanchette the Board was impressed with the amount of detail that went into her calculations. Blanchette withstood the cross-examination of counsel for the Employer and was able to credibly articulate her responses. Accordingly, the Board accepts the revised calculations of Blanchette and for the most part will affirm the Order of the Director and substitute the proper amount. 63 .

In considering the proper amount to be substituted, as noted above, the Board gives the Employer the benefit of the doubt when it comes to the hours of work of the Employee on November 11, 2019 . As such, the Board concludes the amount for minimum wage for overtime should be reduced by $103.50 (6 hours X $17.25) and should read $15,501.83. And there should be a corresponding reduction to the amount of vacation pay of $4.14 (4% of $103.50), so the vacation pay amount should now be $1022.99.

Accordingly, the substituted amount will be $29,735.21 . [Emphasis mine] [ 5 ] The Applicant filed the present Notice of Application on June 8 th , 2022. In their Notice of Application they set out the relief sought as follows: On the hearing of the Application, the Applicant intends to apply for an Order that: 1. the decision of the Labour Employment Board by its Chairperson, George P. L.

Filliter, Q.C. (the “Board”), dated March 11, 2022 (the “Decision”), be removed into this Honourable Court, quashed and set aside; 2. that the matter be remitted back to the Labour and Employment Board; 3. that costs on this Application be awarded to the Applicant; and 4. for such further and other relief as this Honourable Court deems just. [ 6 ] The Applicant sets out the grounds to be argued in support of their Application as follows:

The grounds to be argued are: 7. The Employee filed a complaint to the Employment Standards Branch against the Employer, alleging violations of the Employment Standards Act , SNB 1982, C E-7.2 , following which an Order of the Director was issued, Order No. O210405. The Order was the subject matter of the referral to the Labour and Employment Board, upon the request of the Employer. 8. The referral was heard on October 7, 2021, and December 22, 2021, before chairperson George P.L. Filliter, Q.C., and a decision was rendered on March 11, 2022. 9. The Decision of the Board is unreasonable and/or exceeded the jurisdiction of the Board for the following reasons: (

a) the Board failed to consider or failed to properly consider viva voce evidence and documentary evidence that was contrary to the evidence of the Employee in relation to his hours worked; (

b) the Board failed to give adequate reasons and/or failed to make sufficient findings in relation to the Employer’s central argument that the Employee’s records were inaccurate and unreliable, and by committing this error, the Decision lacked transparency and justification; (

c) the Board erred by misinterpreting and/or misplaying section 60(4) of the Employment Standards Act , by placing a higher or more onerous burden of proof upon the Employer than what is contemplated in section 60(4) of the said Act ; and (

d) the Board failed to properly consider evidence submitted on behalf of the Employer in relation to the onus provided in section 60(4) of the Employment Standards Act . 10. The Applicant relies upon, inter alia , the Employment Standards Act , SNB 1982, C E-7.2 and the Rules of Court on New Brunswick . 11. Upon the hearing of this Application, the following documentary evidence will be presented: (

a) Affidavit of Myung Joo Kim, sworn to on the 8 th day of June 2022; (

b) Affidavit of Ngoc Nguyen, sworn to on the 8 th day of June, 2022; (

c) Affidavit of Kha Quach, sworn to on the 8 th day of June, 2022; and (

d) such further and other material as counsel may advise and this Honourable Court permits. ISSUES [ 7 ] Issues for the court to resolve in this matter are as follows: (1) what is the appropriate standard of review?

(2) is the additional affidavit evidence submitted by the Applicant in this matter admissible in the context of an application for judicial review? (3) did the Board fail to properly consider viva voce evidence and documentary evidence submitted in relation to the hours worked by the Respondent? (4) did the Board fail to meaningfully grapple with the central issue of the number of hours worked by the Respondent? (5) did the Board place a higher or more onerous burden on the Applicant then what is contemplated at subsection 60(4) of the Employment Standards Act ?

(6) Should the matter be remitted to the Labour and Employment Board?; and

(7) Costs. POSITION OF THE PARTIES [ 8 ] The Applicant submits that the Board’s decision is not transparent nor reasonable as the Board failed to adequately consider the arguments raised, particularly concerning the reliability of the Respondent’s assessment of his hours worked. Further, the Applicant maintains that the Board failed to properly interpret section 60(4) of the Employment Standards Act and placed too high of a burden on the Applicant because they had not kept employment records, including hours worked by the Respondent.

The Applicant suggests the Board did not fully appreciate the evidence of their witnesses given challenges presented by language and the virtual format. Finally, the Applicant argues the Board failed to consider any evidence that was not supportive of the Respondent’s position. [ 9 ] The position of the Respondent is that he filed a complaint alleging that he had been terminated from his employment and monies were owing to him on March 27, 2021. Following an investigation, the Director of Employment Standards agreed and ordered the Applicant to pay him $26,643.77.

The Applicant referred that order to the Board who convened a hearing in October and December 2021 and came to the same conclusion in a written decision issued on March 11, 2022. The Respondent points out that he has furnished his best evidence of the hours worked and these were accepted first by the investigator and secondly by the Board. The Respondent suggests that the arguments raised by the Applicant on the application for judicial review are the same ones that were presented first to the Director and secondly to the Board. The Respondent maintains the Board’s decision is fully transparent and reasonable.

LAW AND ANALYSIS Standard of Review [ 10 ] All parties are in agreement that the standard of review in the present matter is one of reasonableness. The Court concurs. The Supreme Court of Canada has confirmed in Canada (Minister of Citizenship and Immigration) v. Vavilov , 2019 SCC 65 that there is a rebuttable presumption that reasonableness is the applicable standard of review.

This concept was confirmed by the Supreme Court of Canada at paragraph 10 of Vavilov : [10] This process has led us to conclude that a reconsideration of this Court’s approach is necessary in order to bring greater coherence and predictability to this area of law. We have therefore adopted a revised framework for determining the standard of review where a court reviews the merits of an administrative decision. The analysis begins with a presumption that reasonableness is the applicable standard in all cases .

Reviewing courts should derogate from this presumption only where required by a clear indication of legislative intent or by the rule of law. [Emphasis mine] New Affidavit Evidence [ 11 ] The Respondent requests the affidavits deposed by Kah Quach and Ngoc Nguyen filed by the Applicant be struck from the record on application in their entirety. The Respondent also asks that all paragraphs except 1, 8, 9 and 21 from the affidavit of Myung Joo Kim be struck from the record on application.

The Respondent maintains that these affidavits must be struck as otherwise the present application is not proceeding by way of a judicial review but rather as a trial de novo. The Respondent argues additional affidavit

evidence is not receivable on an application for judicial review. The Respondent submits the court is constrained to a consideration ofthe file as was before the original decision-maker, in this case the Board. [12] The Respondent refers the Court to the comments found in Porter v. New Brunswick Police Commission 2019 NBQB 297 at paragraphs 21, 25 and 26 in support of their position: [21] Judicial restraint is the watchword when it comes to the admission of evidence that was not before the tribunal. In AdministrativeLaw in Canada (Sixth Edition), S.

Blake, (LexisNexis: Toronto 2017) at paragraph 7.91 it states: Evidence that was not before the tribunal is not admissible without leave of the court because the role of the court is to review thetribunal decision, not to decide the matter anew. For this reason, the only evidence that is admissible before the court is the recordthat was before the tribunal. The tribunal’s findings of fact may not be challenged with evidence that was not before the tribunal. Evidence challenging the wisdom of the decision is not admissible. Fresh evidence, discovered since the tribunal made its decision, isnot admissible.

The tribunal may not file additional evidence to buttress its decision. Correspondence from the tribunal subsequent to itsdecision is not admissible except to the extent that it contain supplementary reasons for decision or concerns reconsideration oramendment of the decision. All of this inadmissible material concerns the substantive merits of the decision under review.

The oneexception allows the evidence to prove that the tribunal had no evidence to support a material finding of fact. [Emphasis added] […] [25] It is clear from the above-mentioned authorities that extrinsic evidence should be admitted only in exceptional circumstances. Theauthorities admit, however, to an exception when, as here, jurisdictional error is advanced as a ground for judicial review. However, inmy view, the mere fact that a jurisdictional error is raised does not open the door to an evidentiary free-for-all on judicial review. Thereare limits on what can and cannot be adduced as evidence.

That is in keeping with the underlying principle that a judicial reviewis not to be transformed into a trial on the merits. In Administrative Law in Canada, supra, at paragraph 7.92 it states: There are additional exceptions that permit evidence relating to other grounds for review. One exception admits evidence to prove anerror of jurisdiction but it is not clear what is permitted under that characterization of error. The clearer exceptions include evidenceconcerning allegations of bias, use of statutory power for an improper purpose, fraud on the tribunal, or failure to follow fair procedure.

However, given that these issues must first be raised before the tribunal, the only evidence admissible on judicial review is that whichcould not with diligence have been known prior to the decision under review. [Emphasis added] [26] The documentation and information sought to be produced by the applicant was known to the applicant and could have beenadduced before the arbitrator. Accordingly, the information sought does not fall within the judicial error exception. [Emphasis mine] [13] As noted in Porter, new evidence is generally not permitted on a hearing of a judicial review application.

The Respondent refersthe court to the Federal Court of Appeal’s discussion of this foundational principle in Sharma v. Canada (Attorney General), 2018 FCA48 where they state at paragraph 8 as follows: [8] The rule against permitting new evidence in a judicial review proceeding respects the differing roles played by judicial reviewcourts and administrative decision-makers (Association of Universities and Colleges of Canada v. Canadian Copyright LicensingAgency (Access Copyright), 2012 FCA 22 at para. 16, 428 N.R. 297 (Access Copyright)).

Parliament gave the Social Security Tribunalthe power to decide facts relating to disability status and this Court the power to review that decision based on the facts before theTribunal (Access Copyright at para. 17). The three enumerated exceptions for when new evidence can be introduced in a judicial reviewproceeding respect these differing roles—as must any potential additional exceptions.

New evidence may be admitted where (1) itprovides general background in circumstances where that information might assist in understanding the issues relevant to thejudicial review but does not add new evidence on the merits (2) it highlights the complete absence of evidence before theadministrative decision-maker on a particular finding, or (3) it brings to the attention of the judicial review court defects thatcannot be found in the evidentiary record of the administrative decision-maker: Access Copyright at para. 20; Tsleil-WaututhNation v. Canada (Attorney General), 2017 FCA 128; Tsleil-Waututh Nation v.

Canada (Attorney General), 2017 FCA 116. As thisCourt explained in Access Copyright at paragraph 20, “[i]n fact, many of these exceptions tend to facilitate or advance the role of thejudicial review court without offending the role of the administrative decision-maker”.

[Emphasis mine] [ 14 ] The Applicant suggests that the additional affidavits are provided not to tender new evidence, but rather to provide information concerning the evidence that was before the Board. The Applicant argues that these affidavits simply clarify the evidence that was before the Board. [ 15 ] I cannot identify an appropriate exception which would render the additional affidavits filed by Mr. Quach and Ms. Nguyen admissible on an application for judicial review.

The suggestion that there were issues with either the quality of the audio/video proceedings in the virtual hearing or the understanding of the use of the interpreter at this stage, when these issues were never raised during the hearing itself, is not appropriate. DID THE BOARD FAIL TO PROPERLY CONSIDER THE EVIDENCE? [ 16 ] The Applicant maintains that the board failed to appropriately consider important evidence tendered by the witnesses. Specifically in their prehearing brief at paragraph 13 the Applicant sets out the alleged oversights in the evidence as follows: 13.

The Board did not consider the following evidence: (

a) Eivdence of Ms. Kim: In relation to the testimony of Ms. Kim, the Board only retained the evidence that supported Mr. Jeong’s position, as summarized at paragraph 26 of the Decision. The Board failed to consider the following portions of Ms. Kim’s testimony at the hearing: (

i) Mr. Jeong’s regular work

schedule was from 10:00 a.m. until 6:00 p.m., 5 days a week. However Kim’s Mart accommodated his family’s

schedule and needs, and allowed him to work flexible hours, even to work on Saturdays if he needed a day off during the week. (ii) When Ms. Kim provided a calendar of Mr. Jeong’s work hours, this was based on Mr. Jeong’s “planned schedule.” This was not meant to deceive the Officer. (iii) Ms. Kim shared her personal vehicle with Mr. Jeong, to accommodate Mr. Jeong, and, as such, he regularly had to return to the business’s location to pick Ms. Kim or Mr. Kim up as he was using their vehicle. The Board failed to consider this evidence as an explanation as to why Mr. Jeong was at the business’s location outside his regular work hours. (

b) Evidence of Mr. Quach: In relation to the evidence of Mr. Quach, both by way of Will Say Statement and viva voce evidence, the Board held that he owned the building where Kim’s Mart operated its business, and that he ran a separate business (Gourmet on the Go) in the basement of that same building, preparing food. The Board further noted in its Decision that in cross-examination, Mr. Quach could not say with any certainty the hours worked of Mr. Jeong. Mr. Quach is an independent witness. The Board failed to consider the following evidence of Mr. Quach: (

i) Mr. Quach’s business, Gourmet on the Go, shares the same kitchen as Kim’s Mart. (ii) Mr. Quach works on most days (almost 365 days a year). (iii) On weekdays, Mr. Quach worked in the said kitchen every morning from 7:30 a.m. until 10:00 a.m., and every evening from 7:00 p.m. until 10:00 p.m. (iv) Mr. Jeong did not work in the kitchen while Mr. Quach was working in the kitchen. (

v) On weekends, Mr. Quach worked in the kitchen and basement from 2:00 p.m. onward, and on Sundays, would work in the morning until 11:00 a.m., and after 12:00 p.m.

(vi) Mr. Quach did not see Mr. Jeong work on Sundays. (vii) Mr. Quach worked on statutory holidays and used the kitchen on those days, and does not recall seeing Mr. Jeong work on holidays. (viii) No one worked overtime and on holidays in the building, except for Mr. Quach, Ms. Nguyen, Ms. Kim, and Mr. Kim. (ix) The owners of Kim’s Mart offered their personal car to Mr. Jeong and, on several occasions, Mr. Kim would tell him that Mr. Jeong was using their vehicle. (

x) On several occasions, during the day on weekdays, he would walk through the kitchen, and would not see Mr. Jeong and was told that Mr. Jeong was on personal time. (

c) Evidence of Ms. Nguyen: In its Decision, the Board held that Ms. Nguyen worked for a separate business (Gourmet on the Go) which used the same kitchen as Kim’s Mart, and also worked in the basement. The Board states that Ms. Nguyen “ did not directly address how many hours the Employee worked ”. This is false, as Ms. Nguyen did testify as to the hours worked by Mr. Jeong. Ms. Nguyen is an independent witness. The Board failed to consider the following evidence which Ms. Nguyen: (

i) On weekdays, Ms. Nguyen worked in the said kitchen every morning from 7:30 a.m. until 10:00 a.m., and every evening from 7:00 p.m. until 10:00 p.m. (ii) Ms. Nguyen did not see Mr. Jeong work in the kitchen before 10:00 a.m., and after 7:00 p.m. on weekdays. (iii) Ms. Nguyen worked on weekends and statutory holidays, and she ddi not see Mr. Jeong work on Sundays and holidays. [ 17 ] The Applicant suggests that in the decision, the Board only referred to the evidence of Ms. Kim that was supportive of the Respondent. The Applicant points out that the evidence tendered by Ms.

Kim and the other witnesses that was not supportive of the Respondent, was not considered in the decision. The Applicant maintains that, as the Board did not summarize the evidence of Ms. Kim, we are unable to determine what part of Ms. Kim’s evidence the Board actually considered. [ 18 ] The Applicant suggests that the decision rendered by the Board in this matter is not reasonable as it cannot be justified in light of the evidentiary record.

The Applicant submits that the Supreme Court of Canada has provided guidance on this issue at paragraph 125 and 126 of Vavilov . [125] It is trite law that the decision maker may assess and evaluate the evidence before it and that, absent exceptional circumstances, a reviewing court will not interfere with its factual findings. The reviewing court must refrain from “reweighing and reassessing the evidence considered by the decision maker” : CHRC , at para. 55; see also Khosa , at para. 64; Dr. Q , at paras. 41-42.

Indeed, many of the same reasons that support an appellate court’s deferring to a lower court’s factual findings, including the need for judicial efficiency, the importance of preserving certainty and public confidence, and the relatively advantageous position of the first instance decision maker, apply equally in the context of judicial review: see Housen , at paras. 15-18; Dr. Q , at para. 38; Dunsmuir , at para. 53. [126] That being said, a reasonable decision is one that is justified in light of the facts: Dunsmuir , at para. 47.

The decision maker must take the evidentiary record and the general factual matrix that bears on its decision into account, and its decision must be reasonable in light of them: see Southam , at para. 56. The reasonableness of a decision may be jeopardized where the decision maker has fundamentally misapprehended or failed to account for the evidence before it. In Baker , for example, the decision maker had relied on irrelevant stereotypes and failed to consider relevant evidence, which led to a conclusion that there was a reasonable apprehension of bias: para. 48.

Moreover, the decision maker’s approach would also have supported a finding that the decision was unreasonable on the basis that the decision maker showed that his conclusions were not based on the evidence that was actually before him: ibid .

[Emphasis mine] [ 19 ] There is no doubt that an administrative tribunal need not address every argument or evidence placed before it. In this particular case, the Board reviewed the evidence that underpins its findings of fact. These findings of fact support the Board’s conclusions that the Respondent was terminated and that he was owed monies for his hours worked. In the face of the evidence before it, the Board accepted with minor modifications, the calculation of hours worked presented by the Respondent and assessed by Investigator Blanchette.

The Applicant had every opportunity to challenge the Respondent’s evidence on this point, as well as his credibility at the hearing. Despite the evidence tendered by the Applicant and the cross-examination of the Respondent, the Board accepted the evidence of the Respondent. [ 20 ] It is worth noting that the Applicant was initially unrepresented when the hearing before the Board first got underway. Following the retention of counsel, all parties were invited to submit written briefs. These procedural details are confirmed by the Board at paragraphs 12, 13 and 14 as follows: 12.

At the end of the day on October 7, 2021, it was agreed that before the Employer presented any further evidence, Blanchette would testify. The Will Say Statement of Blanchette was dated October 22, 2021 and after it had been provided to the Employer, the Board conducted a mid-hearing conference on November 10, 2021 to discuss procedural issues. At the conclusion of this conference, the Employer indicated it intended to retail legal counsel. 13.

On November 30, 2021, after the Employer had retained a lawyer, the Board held another procedural conference with both counsel and it was agreed that the hearing would continue on December 22, 2021 using the Zoom platform. 14. Blanchette and Ms. Kim testified on December 22, 2021 and at the conclusion of the evidentiary portion of the matter, the parties agreed to present written briefs as follows: a. January 17, 2022 – Submission by the Director b. January 24, 2022 – Submission by the Employer c.

January 31, 2022 – Rebuttal by the Director [ 21 ] In the present matter, the Board grappled with the evidence in its 22 page decision after 2 days of hearings and following review of post-hearing briefs filed by counsel. There is no suggestion that any party was deprived of the ability to put forth all pertinent evidence, rebut the evidence of the other side and then provide written arguments. In my view, what the Applicant is now asking this Court to do is “ reweigh ” or “ reassess ” the evidence which the Supreme Court of Canada in Vavilov has clearly indicated is not appropriate.

DID THE BOARD FAIL TO MEANINGFULLY “GRAPPLE” WITH THE CENTRAL ISSUE? [ 22 ] The Applicant further suggests that the Board failed to grapple with the central argument that the Respondent’s hours were unreliable. [ 23 ] The Respondents dispute the Applicant’s

interpretation of the Board’s decision in light of the evidentiary record before it. The Respondent also refers the court to Vavilov , in particular paragraph 128 : [128] Reviewing courts cannot expect administrative decision makers to “respond to every argument or line of possible analysis” ( Newfoundland Nurses , at para. 25), or to “make an explicit finding on each constituent element, however subordinate, leading to its final conclusion” (para. 16).

To impose such expectations would have a paralyzing effect on the proper functioning of administrative bodies and would needlessly compromise important values such as efficiency and access to justice. However, a decision maker’s failure to meaningfully grapple with key issues or central arguments raised by the parties may call into question whether the decision maker was actually alert and sensitive to the matter before it.

In addition to assuring parties that their concerns have been heard, the process of drafting reasons with care and attention can alert the decision maker to inadvertent gaps and other flaws in its reasoning: Baker , at para. 39. [Emphasis mine]

[ 24 ] The Board addressed the evidence, which was considered, including that of the witnesses put forth by the Applicant, in arriving at its decision with respect to the hours worked. The Board’s comments at paragraphs 22 to 26 of the decision as follows: 22. The Employee recorded his hours of work in a calendar and indicated the actual hours of work he performed on each day, along with identifying his days off.

These records were used by Blanchette in her investigation, and to a large extent, established that the Employee typically worked 6 days a week and his hours of work varied from 4 hours a day to 12 hours a day. 23. The Will Say Statement of Nguyen confirmed Nguyen worked for a separate business (Gourmet on the Go) which used the kitchen facilities of the Employer. Nguyen testified having observed the kindness of Ms. Kim towards the Employee, but did not directly address how many hours the Employee worked.

During cross-examination, Nguyen testified to performing most of the Gourmet on the Go work in the basement and as such, was unable to confirm the hours worked by the Employee. 24. In similar fashion, the Will Say Statement of Quach confirmed he owned the building and the Employer rented space from him. He also owns a separate business (Gourmet on the Go) and spends a lot of time in the basement preparing food. During cross-examination, Quach was asked what he knew about the hours of work of the Employee.

Quach honestly replied that he could not say with any certainty, but sometimes wondered where the Employee was. 25. In the view of the Board, given the failure of the Employer to keep time records, this evidence, combined with that of Ms. Kim, does not call into question the records of the Employee. 26. Ms. Kim, who testified on behalf of the Employer, did not take issue with the statements made by the Employee in his Will Say Statement. Furthermore, she acknowledged several things that are germane to the matters before the Board : a. Ms.

Kim testified that she, her husband, and the Employee had a very close relationship. She described the Korean culture as being family oriented and that she considered the Employee a part of the family until the end. Ms. Kim stated she was sad to lose the Employer as a friend. b. She acknowledged that the Employer paid the Employee with cash and did not submit Income Tax deductions. In admitting this, Ms. Kim stated she would “clear this case” and pay whatever penalty is required. c. She admitted that the last day of work for the Employer was March 23, 2020, not March 9, 2020.

She also admitted “I acknowledge I did not give legal notice and I accept it.” d. She admitted that the Employer did not keep record of hours worked by employees up until the time that Ms. Kim was approached by the Investigator in this matter. [Emphasis mine] [ 25 ] The central issues before the Board were whether or not the Respondent was terminated and, if so, what were the wages owing to him? The entire decision of the Board entertains these two issues. Once the Board determined the Respondent had been terminated, they went on to consider the amount of the wages owing.

The Board noted the Applicant’s acknowledgement of the fact that they did not have available records setting out the hours worked by the Respondent. The Board chose to accept the evidence of Inspector Blanchette and the Respondent as to the hours the Respondent worked. The Board was in the best place to make this finding of fact. In the Court’s view, the issue is not that the Board did not grapple with the central issue, but rather their conclusions on the central issue ran contrary to the interests of the Applicant.

DID THE BOARD PLACE A MORE ONEROUS BURDEN ON THE APPLICANT BY MISINTERPRETING SECTION 60(4) FO THE ACT? [ 26 ] Section 60(4) of the Employment Standards Act states as follows:

60(4) Where the employer fails to maintain accurate records in accordance with this Act, the Labour and Employment Board or theDirector may accept the evidence of an employee with respect to the employee’s employment, and the onus of proving the contraryshall be on the employer. [Emphasis mine] [27] In the decision, the Board discusses the issue of section 60(4) of the Act at paragraphs 49 to 52 as follows: 49.

In considering this aspect of the matter, the Board notes that the Employer did not keep a record of hours worked, and therefore theconclusion of the Director to accept the records of the Employee was appropriate. This conclusion is based upon section 60(4) of the Actas interpreted in previous decision both by this Board and its predecessor (Re Electronically Enhanced Education Inc. (E3 Inc.), [1995]N.B.L.E.B.D. No. 21, Matechuk v. Stackhouse (Summit Arabians),

(2005) CanLII 63679 (NB LEB), Gilks and Jardine [1992]N.B.E.S.D. No. 33 and Re Cooke’s Convenience Ltd. [2002] N.B.L.E.B.D. No. 47). 50. The case law consistently confirms that employers in New Brunswick must keep proper records and will be held accountable if theyfail to do so. Failure to keep records of hours of work will be fatal to the case of the employer unless it can show there was anerror in the records of the employee. It is for this reason that section 60(4) of the Act allows the Director to accept the evidence ofthe Employee, as it did in this case.

The employer then bears the onus of proving the contrary. 51. Blanchette approached the Employer to obtain records and was advised that none were available. Consequently, she accepted therecords of the Employee in determining whether there was merit to his Complaint. In the view of the Board, this was an appropriate andlegitimate decision to make. 32. Having completed an in-depth review of the records and having asked for a response from the Employer, Blanchette concluded therecords disclosed significant unpaid work.

She approached the Employer who noted there were holidays and other days when theEmployee could not have been at work. [Emphasis mine] [28] The Applicant suggests that the Board has misinterpreted section 60(4) as a means to penalize the Applicant for failure tomaintain appropriate employment records.

The Applicant argues that the Board failed to recognize that section 60(4) of the Act simplyplaces an onus on an employer to establish that the employee’s records are erroneous. [29] The Applicant provides the following argument as set out at paragraphs 23 to 27 of their written submissions in support of theirsuggestion that the Board misinterpreted section 60(4): 23. In Lavoie c. Deschenes (René Deschenes Construction), (NB LEB) [Lavoie], the employee was alleging notbeing paid for his first week of work, as well as some overtime hours in the evening.

At the hearing, an independent witness testified thathe was at the employer’s home when the employee arrived and asked for payment for his first week of work. The witness furthertestified that he had witnessed the employer pay the employee with cash, although he had not seen the amount of cash exchanged. On thisevidence, the Board was satisfied that the employee had been paid for his first week of work (even the witness could not speak to theamount of money paid) and, therefore, that the employer had met its burden prescribed at subsection 60(4) of the Act. 24. In the case at bar, Mr. Quach and Ms.

Nguyen provided reliable and independent evidence that Mr. Jeong did not work in theevenings, Sundays, and on holidays. The Board failed to consider (or failed to explain why it did not put weight) on their evidence. 25. In Laking v. All Points Trucking Services, 2006 CarswellNB 220 (NB LEB) [Laking], the employee complained that theemployer had failed to pay him outstanding wages for hours worked. Over a period of two months, the employee was alleging that heworked 337 hours, while the payroll records of the employer showed that he had only worked 78.5 hours.

The employer had no recordsin relation to the additional 258 hours that the employee was alleging he worked. At the hearing, the employee used a calendar on whichhe had recorded hours worked by him to assist with his testimony. The Board found the evidence of the Employer credible. It found thatthe employee was claiming work hours for a number of days for which the office records recorded no work orders or other activity.Finally, the Board held that the employee had only worked 78.5 hours and, we submit, contrary to his testimony during which he reliedupon a calendar in which he had recorded his hours worked.

Thus, the Board took into account the business records, i.e. work orders andinvoices, as evidence establishing the contrary to the employee’s own work hours.

26. In the case at bar, Kim’s Mart also adduced business records, including their daily notebook and emails produced in the course of business, that were contrary to Mr. Jeong’s record. 27. Kim’s Mart submits that it presented evidence that called into question the hours worked by Mr. Jeong, and, further held that this evidence established that Mr. Jeong’s records were unreliable. As is discussed in the next section, the Board did not turn its mind to this argument. [ 30 ] In the present matter, the Board was of the view that the Respondent’s evidence was credible.

The Board chose not to rely upon the evidence of the witnesses, nor the business records tendered by the Applicant. In my view, this was not because the Board was penalizing the Applicant, but rather because the Board was not satisfied the Applicant had established the Respondent’s records were erroneous. The Court is of the view that once the Board determined that the Respondent’s evidence was reasonable, the onus then shifted to the Applicant. The Board appropriately, in the Court’s view, determined that the evidence of the Applicant did not disprove that of the Respondent.

This determination is a finding of fact. SHOULD THE MATTER BE REMITTED TO THE BOARD? [ 31 ] The Respondent submits that there are six reasons why the Board’s decision should not be quashed.

These are: (1) if there were issues with the quality of the video and the virtual hearing, this should have been raised during the hearing, and it was not; (2) if there is an issue with what the witnesses said at the hearing, then transcripts should have been requested; they were not; (3) the Applicant testified that they did not keep employment records and logs of hours worked; (4) the Applicant was given an opportunity to address the issue of the hours worked — the Applicant set out extensive arguments before the Board challenging the hours worked set out by the Respondent in their post hearing submissions; (5) even if the Court accepted the additional affidavit evidence submitted by the Applicant, the decision of the Board is still reasonable and transparent; and (6) the Board did not place a higher burden of proof on the Applicant pursuant to section 60(4) of the Act as alleged by the Applicant, but rather accepted there was insufficient proof to challenge the hours worked as suggested by the Respondent. [ 32 ] I agree with the Respondent that the decision in this matter is reasonable as defined in Vavilov .

The decision is transparent and explains the evidence that was relied upon in reaching the conclusions. The decision is one of the possible reasonable outcomes available given the evidentiary record that was before the Board. There is no basis upon which this Court could quash the Board’s decision absent embarking upon an exercise of reweighing or reassessing the evidence, which this Court is not authorized to do. COSTS [ 33 ] The Respondent has been successful on the Application and is entitled to costs.

Given the nature of the proceedings and the impact the delay in the hearing of the application had on the Respondent’s ability to obtain satisfaction of the Board’s decision, costs are assessed at $3,000.00. CONCLUSION AND DISPOSITION [ 34 ] For all the aforementioned reasons, the Applicant’s application for judicial review is dismissed with costs payable to the Respondent in the amount of $3,000.00.

DATED at Moncton, New Brunswick this 27 th day of January, 2023. _____________________________________ Tracey K. DeWare, Chief Justice of the Court of Queen's Bench of New Brunswick