Lance Leray-Houdek - v. -, 2011 SKPC 92

IN THE PROVINCIAL COURT OF SASKATCHEWAN CIVIL DIVISION Citation: 2011 SKPC 092 Date: June 14, 2011 File: 71/09 Location: Yorkton _____________________________________________________________________________ Between: Lance Leray-Houdek - and - Benmar Holdings Inc. Mr. Wayne Rusnak, Q.C. For the Plaintiff Ms. Kyla Eiffert For the Defendant _____________________________________________________________________________ JUDGMENT R.

GREEN , J _____________________________________________________________________________ [ 1 ] Lance Leray-Houdek claims for wages from the defendant corporation, for work he did for the defendant at an apartment block owned by the defendant on Bradbrooke Drive in Yorkton. He was told about the job by a friend named Jodine Bjola, who was hired by the defendant to paint some suites at this apartment block. Mr. Leray-Houdek participated in a conference call with Ms. Bjola, Brent Spelay and Marlene Swan, co-owner of the defendant company, who was on the line from Calgary.

He said he was hired for $10.00 per hour, and understood that Mr. Spelay was the manager of the apartment block, which was being renovated. Mr. Leray- Houdek could see that some of the suites were in poor repair, with holes in the walls and cracks in the gyproc.

[ 2 ] Mr. Leray-Houdek submitted two weekly employee time sheets, with attached notes he made indicating what he did each day for the defendant (Exhibits P-2, P-3 and P-4). His notes indicate that: 1) On Monday, March 2, 2009, he worked from 12:00 noon to 5:00 p.m. for a total of five hours. On that day he removed doors, baseboards and electrical plates in suite 14B. 2) On Tuesday, March 3, 2009, he worked from 9:00 a.m. to 5:00 p.m. for a total of eight hours.

On that day he was setting up furniture in suite 11B. 3) On Wednesday, March 4, 2009, he worked from 9:00 a.m. to 8:30 p.m. for a total of 11 and a half hours. On that day he removed doors, baseboards, electrical plates and sanded cupboards in suite 16B. 4) On Thursday, March 5, 2009, he worked from 9:00 a.m. to 5:30 p.m. for a total of eight and a half hours. On that day he worked in suite 16B, he sanded a range of doors including cabinets in the bedroom and bathroom. 5) On Saturday, March 7, 2009, he worked from 9:30 a.m. to 5:30 p.m. for a total of eight hours (not eight and a half as originally claimed).

On that day he worked in suite 16B and patched and sanded all rooms in the apartment. 6) On Monday, March 9, 2009, he worked from 12:00 noon to 5:30 p.m. for a total of five and a half hours. On that day he finished sanding in suite 16B and put the face plates on. 7) On Tuesday, March 10, 2009, he worked from 9:00 a.m. to 8:30 p.m. for a total of 11 and a half hours. On that day he did sanding and patching of all rooms in suite 14B. 8) On Thursday, March 12, 2009, he worked from 9:00 a.m. to 3:00 p.m. for a total of six hours.

On that day he did cleaning, scraping and swept the floors and dusted. 9) On Friday, March 13, 2009, he worked from 9:00 a.m. to 12:00 noon for a total of three hours. On that day he took the hardware off of the cabinet doors and sanded the bifold doors. [ 3 ] Mr. Leray-Houdek said that Mr. Spelay told him on each day what to do that day. He said these were the tasks he set out in his notes. Mr. Leray-Houdek submitted his time sheets to the defendant, but was not paid for any of his work, which totals 67 hours.

His total claim for unpaid wages, at $10.00 per hour is $670.00. [ 4 ] On the afternoon of March 13, 2009, Mr. Leray-Houdek was called to a meeting at the office of the apartment. Murray Tittle was there, as was Mr. Spelay and Jade Bjola, another young person working for the defendant corporation. He was given a fax from Ben Swan, Ms. Swan’s husband and a co-owner of the defendant. They then connected by telephone conference call to Mr. Swan in Calgary. At that time, Mr. Leray-Houdek was fired by Mr. Swan. He subsequently prepared his time sheets and sent them to the defendant in Calgary.

He said he did not speak during the conference call. [ 5 ] The fax he was given reads as follows: 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

[ 6 ] Mr. Leray-Houdek claimed he was never told why he was fired. On cross-examination there was some discrepancy about which suites he worked on. For example, on March 5, his time sheet indicated he worked in suite 16B, but, in cross-examination, he indicated he also worked in suite 14B that day. He admitted that he had no conversation directly with Ms. Swan about his wages or his job description, but said that he got this information from Mr. Spelay, who he understood was the manager. [ 7 ] Ms.

Swan said that, after she returned to Calgary after a long trip away from home, she received a telephone conference call from Mr. Spelay and Ms. 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 Mr. Leray-Houdek could be hired, but recalled the mention of $10.00 per hour. [ 8 ] Ms. Swan denied ever hiring Mr. Leray-Houdek. When asked who did, she said either Ms. Bjola or Mr. Spelay. When asked whether she ever agreed to pay Mr.

Leray-Houdek, she said that, at the end of the conversation by telephone from Calgary with Ms. Bjola and Mr. Spelay, someone said to her that a total of $25.00 per hour (i.e. $10.00 per hour for one worker and $15.00 per hour for another), was a small price to pay for her to be in Calgary. She, however, denied that she authorized the hiring of Mr. Leray- Houdek. When asked why she did not pay him after she received his time sheets, she said that there were inconsistencies in these time sheets and that needed to be satisfied so that he could be paid. [ 9 ] In cross-examination, Ms.

Swan was asked whether she maintained that Mr. Leray-Houdek was not an employee of the defendant, as claimed in the defendant’s Dispute Note. She maintained this position. She was then asked, given that position, how her husband could purport to fire Mr. Leray-Houdek through his fax of March 12, 2009 and the conference call the next day. In my view, there was no clear answer to this question. [ 10 ] An employer cannot fire an employee unless that employee was originally hired. I am satisfied that Mr. Leray-Houdek was hired as an employee by the defendant corporation and was not paid any wages.

I further accept his evidence that he was not given an explanation for why he was terminated. Following the conference call on March 13, neither Ben or Marlene Swan wrote to Mr. Leray- Houdek regarding any further concerns or explanations, although Ms. Swan said she did not have an address for Mr. Lance Leray- Houdek. The ultimate, and final, question is what is the best evidence on what he is owed in wages by the defendant. [ 11 ] 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 Mr. Leray-Houdek.

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. [ 12 ] Mr. Tittle did not disagree with the suggestion that his job as manager, after March 1, 2009, was primarily as a rent collector. He did not know what specific tasks Mr. Leray-Houdek had been assigned to do, nor did he prepare any lists for him to follow. Further, he said that Mr. Spelay remained in charge of the renovations after March 1, 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. [ 13 ] In total, this evidence satisfies me that Mr. Spelay had the authority to assign and direct the work done by Mr. Leray-Houdek. As Mr. Tittle and Ms. Swan had no knowledge of the specific tasks performed by him on the days in question, and despite the lengthy cross-examination of Mr. Leray-Houdek about what he did each day, I view the best evidence on this question to be the time sheets and notes submitted by the plaintiff. Based on these, I am satisfied that Mr.

Leray-Houdek worked in the employ of the defendant for 67 hours at the rate of $10.00 per hour, and is entitled to be paid the sum of $670.00. [ 14 ] As a result, Mr. Leray-Houdek is given judgment against the defendant in the sum of $670.00, together with interest from March 19, 2009 (when the second time sheet was signed) under The Pre-Judgment Interest Act , and the costs of issuing this proceeding ($20.00). R. Green, J